Criminal Justice and Courts Bill
Baroness Berridge Excerpts(11 years, 7 months ago)
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Baroness Berridge (Con)
My Lords, I declare an interest as a member of the Joint Committee on Human Rights. Although I find it difficult to find a single theme within this Bill, there is much to commend some of the provisions and measures contained within it.
As a supporter of the No More Page 3 campaign, I note that the Bill terms certain images as “extreme” pornography, and may by amendment refer to “revenge” pornography, to differentiate it from other pornography that, unfortunately, has become so easily available in our society. I support this limit on such pornography, as the cultural effects of such images cannot be underestimated. As the Joint Committee on Human Rights report states, the demand for academic work in this area has often been oversimplistic in requiring strict cause and effect. However, I hold the basic view that if images did not have a substantial effect on individuals’ behaviour and on our culture, the advertising industry would not exist on the scale that it does.
In light of the current media focus on the activity of British citizens in Syria, the increase in sentences in the Bill for various terrorist offences, to enable them to come under the dangerous offenders sentencing regime, is a welcome message to the general public. It seems that the threat of criminal activity of this nature currently exceeds the actual convictions, but it is better to be prepared than to find the judiciary without the necessary powers.
The wisdom that I have seen over three years in your Lordships’ House from many octogenarians means that an increase from 70 to 75 for the maximum age to serve on a jury is long overdue.
From visiting category C prisons, I feel that the need to bring prescription drugs under the drug-testing regime is a loophole that should be closed. Currently, the searches of prisoners for prescription medication in their possession—without the corresponding prescription—are thorough, but I never fail to be surprised at the ingenuity of prisoners in hiding things. Drug testing is of course incontrovertible evidence of possession of these drugs.
The United Kingdom is blessed with some of the best medical care in the world, particularly in our accident and emergency departments. It is often only this care that saves the life of someone hit by a disqualified driver, but they may still end up maimed for life. The culpability of the driving behaviour is the same, and so an offence of causing serious injury by driving while disqualified is also very welcome.
I part company with my noble friend Lord Paddick on mandatory sentencing for the offence of possession of knives. I do not think it is any coincidence that the amendment was put forward in the other place by Nick de Bois and supported by David Burrowes, who are MPs for the Borough of Enfield, which, if one glances over the media, is a borough that has been disproportionately affected by knife crime. The possession of knives is now an even greater menace, particularly to young people, than the possession of guns. The strengthening of the sentencing powers within the Bill is welcome.
Therefore, while this speech further illustrates that the Bill is something of a pick and mix, I wonder whether there has been consideration by Her Majesty’s Government of further issues that could perhaps have been in the Bill. During the tragic murder of Drummer Lee Rigby there seemed to have been a risk that, due to the public nature of the incident, photographs of the armed police involved might have been taken by the public and found their way through Twitter into the public domain. Of course, the police were undoubtedly the heroes in this situation. However, what if the neighbour on the balcony who filmed the aftermath of the shooting of Mark Duggan had a slightly better mobile phone and the armed police could have been identified? Could my noble friend outline whether the police are indeed concerned about such a situation? Perhaps it is covered by other legislation, but I have been unable to find relevant provisions.
I would also be grateful if the Minister could outline whether the Government are satisfied with the current rules around the disclosure of the identity of young people charged with murder. Your Lordships may be aware that, in the recent case of the tragic murder of Ann Maguire in a Leeds school, there appeared to be a loophole in the law that allowed the identity of the offender to be released into the public domain after he was arrested but before he was charged. I would be grateful to note whether the Government wish to enact provisions that would close that loophole.
Finally, I wish to support the principle behind the introduction of secure colleges, whose aim is to remedy the often very poor educational attainment of young offenders, which has been outlined for your Lordships’ House. Enhancing their skills, of course, is one way to reduce reoffending, and having institutions for which this is their primary focus can only be an improvement. However, I would be grateful if the Minister could explain why these institutions would cover the age ranges 12 to 17 and why the reasons for the other institutions within the secure estate being divided between those aged under 16 and those aged over 16 do not apply to this type of institution.
I accept that some of the young people in secure colleges will have the physical strength of an adult, so I fully support the use of the reasonable force as a last resort and for the purposes of preventing harm to that child or to other children. Of course, where such force is used, it should be the minimum necessary. The suggestion that secure college rules can provide for force to be used on children to ensure good order and discipline leads me to worry about the capability of the providers of such colleges if they need such rules. While I appreciate that this education is within the secure estate, Serco or Wates employees able to use force, for instance to make a child stand in an orderly queue for a meal, reminds me of the teaching methods at Lowood Institution for orphans attended by Jane Eyre. I expect that this matter will be the subject of further discussion in your Lordships’ House, and although I am a member of the Joint Committee on Human Rights, I do not believe that I need to pray in aid any of our international obligations so much as the common law. I am proud to say that in all our education institutions, corporal punishment of this nature is a thing of the past and should remain so.
Anti-social Behaviour, Crime and Policing Bill
Baroness Berridge Excerpts(12 years, 3 months ago)
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Baroness Berridge
“( ) If an offence has been committed under subsection (1) or (2) in relation to any marriage (as defined in subsection (3) and whether conducted in England and Wales or elsewhere), then that marriage shall be treated for the purposes of the Matrimonial Causes Act 1973 as if the marriage was valid but annulled on the date that the offender was first charged with the offence.”
Baroness Berridge (Con)
My Lords, this amendment relates to Clause 108. For the purposes of the new criminal offence of forced marriage, the Bill has adopted the definition of marriage found in the Forced Marriage (Civil Protection) Act, which states that.
“‘marriage’” means any religious or civil ceremony of marriage (whether or not legally binding)”.
At first glance this seems to be a sensible definition as it is clear that some marriages, although not valid in our law, have such community, cultural or religious significance that the couple behave as if they are legally married. Forcing someone into such a de facto marriage should also be a criminal offence. Consenting to such a marriage is fine; forcing someone is not.
No one underestimates the variety and complexity of situations that lead people to find themselves in forced marriages. A cursory glance at the case law reveals that children are sometimes subjected to such marriages by their parents, and the law needs to be flexible in its remedies. Under Clause 108(3), let us imagine that a woman takes a brave step to come forward to complain about a forced marriage in a religious ceremony which is not, as the Bill envisages, valid in UK law. She may take that step after many years of marriage and it will take enormous courage. She will almost certainly have to testify in court against her so-called husband and perhaps other community or religious leaders. This may affect her acceptance within her community. Her husband and others may be convicted and sent to prison.
Of course, this woman may need supporting financially and there may be family assets such as a car, a pension, a business, inherited wealth and most probably a home. However, they could all be in the legal name of the husband, who is in prison. Ordinarily the woman seeks a divorce or an annulment, and in both types of proceedings the courts have wide-ranging powers to transfer or split the family assets—but herein lies the problem: this forced religious marriage cannot be annulled and cannot be the subject of divorce proceedings. It is not viewed in law by the family courts as a marriage; it has been inelegantly described as a “non-marriage”. Without the legal means to get an annulment or divorce, the woman cannot put in a proper claim for the family assets. In those circumstances she will most likely be making a claim for benefits, supported by the UK taxpayer instead of by any family assets. I also shudder to think of what she may feel like if after a few years in prison her so-called husband comes back to the community and waltzes back into the family home with all the assets. I very much doubt whether any other women will come forward and take such risks if, on top of everything else, by doing so they make themselves financially destitute, with recourse only to the benefits system. Without giving her the remedy of an annulment, which is what the amendment gives her, there may be a grave injustice.
Conversely, if a person is forced into a marriage that is valid under UK law the marriage is void and can be annulled, and the family assets divided up. The Bill therefore currently gives rise to the different treatment of women forced into a marriage that is not recognised in our law, as opposed to women forced into what would otherwise be a valid marriage. There is extensive human rights case law on such differential treatment. I should therefore be grateful if the Minister can outline, if he does not accept the amendment, what reasonable and objective justification the Government have for such differential treatment of women in analogous situations. In the absence of any such justification, the law should be amended to give women the option of petitioning for an annulment. A woman will not be required to do so, and there may be cases where it is not appropriate, but the law should give her the option. This legal definition of marriage has not previously been an issue under the civil protection order regime, as that was aimed at preventing such a marriage, as the name indicates. As the law is now dealing with criminalising a forced marriage that has occurred, obviously the remedies when that marriage ends—namely, divorce or annulment—have now become relevant. If religious marriage is recognised for the purpose of a civil protection order regime and now criminal law, should it not be recognised for the purpose of family law?
This amendment has been drafted narrowly, but we will need to ensure that it does not inadvertently give financial remedies to cohabitees. I was made aware of the general issue of religious marriages during the presentation of evidence from excellent women’s rights groups to the Joint Committee on Human Rights, which said that many women, even when they consent to the marriage, are not aware that the ceremony is not valid in UK law. In some cases they discover this only when, after many years of marriage, the husband says three times that he divorces them and walks out. Literally, the first person to explain the situation to her is a divorce solicitor, who says that he cannot help her as she is in a non-marriage. Coincidentally, I was visited this morning by Dr Siddiqui, from the British Muslims for Secular Democracy organisation, who said that the situation that there may be family assets after many years of marriage can, indeed, occur.
I would be grateful to know the Government’s view on this amendment, which I believe solves an obvious injustice, and whether the Government are going to grasp the issue of non-legally binding marriages, which is causing so much harm, and look at the matter comprehensively. The Government need to take a step back. Once a different definition of marriage has crept into our law, there can be many inadvertent consequences. They need to consider different solutions, such as making the provision of a civil marriage certificate a requirement before any person conducts a religious ceremony. Such an inquiry could also look at whether the basic legal requirements of how to be married under UK law need to be part of citizenship teaching, especially given the popular trend of travelling to sunnier climes for wedding ceremonies. I fear this is not common enough knowledge; your Lordships may remember that Mick Jagger and Jerry Hall had to get an annulment as they were not married under UK law. I beg to move.
Baroness Cox (CB)
My Lords, before I speak to Amendment 13, grouped with this amendment, I apologise for missing Second Reading as I was in South Sudan, where it was rather difficult to engage with parliamentary business here. I understand that a primary goal of the forced marriage provisions of the Bill is to increase the protection of victims of honour-based abuse while bringing perpetrators to justice. As noble Lords may be aware, this is also the primary concern of my Private Member’s Bill, the Arbitration and Mediation Services (Equality) Bill, which seeks to ensure that all citizens resident under the jurisdiction of England and Wales have equal access to the law, and to increase protection for those who suffer abuse and gender discrimination. One of the concerns underlying the reason for that Bill could be addressed by this amendment, which would make it an offence to solemnise a marriage in England and Wales according to the rites of any religion or belief in circumstances where the marriage is not also solemnised as a legal marriage under the terms of the Marriage Act 1949 if either or both parties to the marriage wrongly believe that they are married according to the law simply because they have been through a religious ceremony.
The amendment would tackle the problem that arises in some communities where those getting married, particularly women who are not familiar with English law or the customs of this country, undergo a religious marriage without understanding that they are not married according to English law. They are therefore unaware that they are without any legal protection. I think there are parallels here with the amendment just moved by the noble Baroness, Lady Berridge.
In most cases, religious celebrants would not need to be concerned about committing the offence created by the amendment. They would not need to act any differently. Most marriages solemnised by religious celebrants are in registered buildings under the terms of the Marriage Act 1949. They are legal marriages. Under the Marriage Act 1949, a couple who have already entered into a civil marriage may go through a religious marriage ceremony after giving notice to a minister of religion, and on the production of a certificate of their marriage before the superintendent registrar.
Therefore, in circumstances when no certificate is provided, ministers of religion should already be on notice that a couple may not be married legally. In those situations when they are not sure that the parties properly understand the status of a religious ceremony, they may choose to say something about this publicly during the religious ceremony to ensure that there is no doubt, or they could choose to obtain a written declaration of understanding from the couple before proceeding with a marriage service. How they go about that procedure is a matter for them and the amendment does not seek to prescribe any particular means. What matters is that when there is some doubt as to the understanding of the parties, my amendment would effectively require celebrants to ensure that the couple they are marrying only according to religious rites are fully aware of the status of the ceremony and its implications.
Baroness Berridge
My Lords, I am grateful to my noble friend for his outline in relation to this matter, but I believe I should join the club opened by the noble Baroness, Lady Thornton, and take yet more legal advice, having consulted, of course, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech, before raising this matter. I will specifically check the section outlined in the Matrimonial Causes Act, which I think applies only to marriages already valid under UK law. With that in mind, we may be back on Report to look at this matter further. I beg leave to withdraw.
Offender Rehabilitation Bill [HL]
Baroness Berridge Excerpts(12 years, 8 months ago)
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Baroness Berridge
My Lords, I will speak only briefly on the purpose of this Bill, as I spoke on these matters in response to the gracious Speech. Again, I declare my interest as a trustee of the charity Kainos Community.
When I looked in more detail at the outline of the release on licence and the supervision requirements for offenders serving less than two years, I could not help but think, “Why have we not done this before? It seems so obvious”. The Bill will increase public confidence in our sentencing regime because short, sharp shock sentences will no longer seem derisory and will no longer be easy, cheap headlines for newspapers. In fact, as is outlined in the very helpful Explanatory Notes to the Bill, a six-month sentence will comprise three months in custody, three months on licence and nine months of supervision. This is a total of 15 months during which, either by virtue of the original sentence or for the period of supervision, the offender will be under the purview of the courts. This is the best blend of getting tough on crime while also increasing the focus on the rehabilitation of the offender.
Although it is now many years since I did many breach of community orders in the Crown Court, it was very rare for the person to be sent back to prison. This led to many offenders not taking seriously the requirements of their community penalty. In fact, I always remember seeing the usher call a case, only to have to go and wake up the defendant, who was having 40 winks in the waiting area, such was the gravity he placed on the breach of his order. Although ultimately it is a matter for judicial discretion, I hope that the sentence of up to 14 days in prison is utilised. However, does the Bill mean that that short period of imprisonment for breach of a supervision order will trigger, in and of itself, a supervision order? I would be grateful if the Minister could clarify that point.
I am also very pleased to see clarity in the Bill, rather than in a statutory instrument, about which functions connected with bringing court proceedings for review of a community order, a suspended sentence or the drug rehabilitation requirements are exercisable only by a public sector provider. With the expansion of the involvement of the private and voluntary sector providers, such clarity of functions is essential.
The most pertinent parts of the consultation, and now of the Bill, are competition in the delivery of rehabilitation services, ensuring that the new system is responsive to local needs and paying providers for their services according to results. The highly imaginative concept of payment by results is, as I understand it, already part of the provision of rehabilitation within the prison estate. I would be grateful to know from the Minister what the practical experience is of calculating the results that have been achieved. What will be the position, once the Act is in force, if someone under a supervision requirement provided by one charity goes back into prison and on to a project, such as St Giles in Peterborough, then goes back under a supervision order provided by a different charity and is then reformed? How is it determined whose result this is—or is it a score draw, with everyone getting paid by the state for the outcome?
Furthermore, how will the new structure of the probation system ensure that it is responsive to local needs? The Ministry of Justice, along with the Department for Work and Pensions, issues huge contracts. Will Serco, Atos and G4S be the providers, with SMEs and local charities unable to get involved? How these principles will work in practice will depend on this, and some indication from the Minister would be most welcome.
Tucked away in paragraph 129 of the Explanatory Notes is a major key to the outcome of these initiatives. The paragraph suggests that it is anticipated that a large part of the funding for this additional service provision will be,
“dependent on the outcome of competing provision of probation services”,
which is not directly part of the Bill. It is essential for the success of the Bill that this “competing provision” delivers a service that is effective in qualitative terms. With the design of the new probation structure, it will be important that this is done with certainty from the outset, as I can say as a trustee of a voluntary organisation that the many reforms and changes to NOMS and ROMs were very destabilising. The new service needs to be robust in order to maximise the likelihood of the Bill having the intended highly beneficial effect.
Finally, we often speak of the low levels of literacy, mental health problems and drug issues of many prisoners, and of course that is true. However, when I have gone into Her Majesty’s Prison Stocken in Rutland to see Kainos work, I have always been struck by how talented a lot of prisoners are. Of course, there are some whom you would not wish to bump into in a dark alley. However, when I hear in conversation of their complicated family backgrounds and of how many people, usually men, came and went in their childhoods, I cannot keep track. It is like a family tree where part of it is stuck on temporarily with Velcro and then torn away. When playing dominoes on one occasion, a prisoner insisted that he was really good with numbers. My response was, “Yeah, yeah”, partly because I thought he was blagging and partly as I have to concentrate very hard on the dominoes because beating prisoners at pub games is very difficult. However, I had to eat my words when I discovered that he had got eight years for a first offence. It turned out that he was the banker for a multimillion pound drug racket. I then told him about the Prince’s Trust and starting his own business.
Although our role is to review and scrutinise legislation, I wonder whether practically your Lordships’ House could help with rehabilitation. In the Robing Room the largest painting is entitled “Hospitality”, which is something that the House does so well. Some noble Lords may be aware of a charity called The Clink, which runs restaurants in certain prisons where prisoners are trained to work in the hospitality industry. It is most successful, and it would be an excellent role model if the House employed a graduate from The Clink. Noble Lords may think that ex-offenders might fail our stringent security test. My contention is that while the House has ex-offenders on its Benches, ex-offenders should serve at its tables. I hope that the Bill succeeds and that short sentences will become part of reducing crime rather than having their current adverse effect of just equipping prisoners for further criminality.
House of Lords: Reform
Baroness Berridge Excerpts(14 years, 7 months ago)
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Baroness Berridge
My Lords, I speak in this debate with considerable reluctance, because I, too, was concerned about this House spending a considerable amount of parliamentary time on the issue when so many people are facing such difficult circumstances. I recently gazed at the supermarket shelves reflecting that there was hardly a loaf of bread for under £1. However, the more that I considered the draft Bill, ironically, it highlighted one of the main roles of your Lordships' House: to keep a long-term view when short-term considerations press in on government.
I am in favour of reform, but the reforms in the draft Bill are deeply flawed and could lead to our finely balanced constitution, which operates like a beautiful clock, being tampered with one too many times and jamming altogether. In my brief time in your Lordships’ House, I have come to view the relationship of this House to the other place rather like a boxer and his trainer. The other place throws a democratic punch, to be met by a mitt labelled delay, scrutiny or review. Perhaps another punch or two is thrown, but eventually, the boxer gets the prize. The trainer is there only to improve the boxer. By electing this Chamber, the trainer will become another boxer and the two will end up fighting or, worse still, they will be on the same team and there will be no fight at all, no scrutiny, review or delay.
A boxing match also needs a referee. Who will referee potential endless ping-pong between the two Chambers? Will it be a Joint Committee, a referendum, a YouGov survey or the judiciary? The draft Bill is silent. I agree with the noble Lord, Lord Williamson of Horton: the other place will lose its supremacy once public opinion and the media, in any dispute between the Chambers, are on the side of senators. The judiciary just battled Facebook and Twitter and did not do so well. I do not believe that Members of the other place will fare any better.
I have also tried to imagine the doorstep conversations in elections under the draft Bill. I would have to ask for a person’s vote and explain, “No, I do not want your vote for me as your elected representative but as your elected reviewer, your elected scrutineer, your elected delayer”. I think that the final comment will have been shouted through a door shut in my face, and quite rightly.
What would my election literature look like? My whole CV condensed onto an A5 flyer? I do not believe that that would improve public confidence in our politics one bit.
The two elected Chambers will also clash at grass-roots level. As the noble Lords, Lord Faulkner of Worcester and Lord Forsyth of Drumlean, said, senators will take on case work in part of their areas. I think that I can feel a cold draught coming from the other place as chills go down their spines at the thought of theyworkforyou.com having senator and MP competitive league tables. Of course, if this would deliver a better service for constituents then it would be worth considering. The very valuable work of an elected representative dealing with constituents inquiries is rather like customer service from a big retailer, but I cannot think of any retailer that advises you to phone up twice, to speak to two people, to get two customer reference numbers and to have two people contacting the suppliers, as the likelihood of conflicting answers would increase.
On a serious note, hundreds of civil servants are at the end of hotlines from offices in this Palace doing their best to deal with complex cases. I believe that such duplication will be a waste of public resource as well as immensely frustrating to the civil servants who will find it impossible to tell a senator that they cannot deal with an inquiry because the MP called two days ago.
Much of what I now say regarding the Lords Spiritual applies to the current Chamber as well as to any reformed House. I would like to deal with the reality which is outlined in paragraph 91 of the White Paper, a paragraph with which I agree—that although historically they are here as independents, the reality is that they are seen as representatives of the Church of England.
I am impressed by the Lords Spiritual, who bring a sense of service to their community and a spiritual, moral and ethical perspective that enhances the independent nature of debate in your Lordships’ House. I believe that the work of this House is improved by each of the Benches having a blend of part-time and full-time Peers. I am deliberately avoiding using the term “working Peers” as it implies that other Peers do not work, which is not true. I believe that there would be much merit in having a blend of Bishops: some part-time with diocesan responsibilities and some full-time akin to working Peers. It would be most welcome to have Bishops more fully involved in the life of this House
Unfortunately, under the draft Bill, none of the recommendations of the royal commission is developed. Surely the churches in the other home nations should be represented and the wisdom of the leader of the largest voluntary provider of social services in the country—namely the Salvation Army—would be extremely valuable. Perhaps canon law will still deny this House the insights and immense wisdom of the Archbishop of Westminster but there are very gifted laity in the Catholic Church. What of the black-led denominations whose story often includes having to found their own denominations as many of the established ones were not the most welcoming? To my knowledge there is not a single attendee now, let alone a leader, from within those denominations in your Lordships’ House, and I think that the House is poorer for that.
There are no perfect proposals, but the division of the 12 places on the basis of church attendance within the UK would be a good starting point. On the latest British social attitude surveys that would give us 3.5 Anglicans, 3.5 Catholics and five others. I know that I am expecting a lot from a Bench that believes in miracles.
In looking into the history of this House, it was most encouraging to learn that the 14th century church was rather radical and that women owned land. So in 1306 a writ of summons was sent to abbesses to attend Parliament—but alas, there is no evidence that any of these women attended. Whether by laity or working Bishops, there needs to be a clear timetable outlining and guaranteeing when the Benches of the Lords Spiritual will include a substantial number of women. Places in the nation’s legislature are not on a men-only basis for any organisation.
The public want a House that functions. I would support a fully elected House, with proper recognition of the democratic power of the people and a means to resolve disputes between Chambers. However, I am not convinced that we will ever come up with such a solution. On the options presented to me, I would support a wholly appointed Chamber based on a statutory Appointments Commission, and I would submit myself to reselection if required.
I pray in aid of my conclusion the result of a vote in a House of Lords Chamber event in 2010, when a majority of the 16 to 18 year-olds who had the privilege of debating this issue voted for a fully appointed House. I concur with the comments of many of your Lordships about the loss of wisdom and expertise to this House under the reforms. I cannot express that point better than Ed Gerlach, from Western Sixth Form College, who took part in that Chamber event. He said:
“I agree that we should have appointed Lords. They are from different fields and will know what they are on about from a variety of different backgrounds. People were saying that a lot of them are middle aged people, but they have been around longer and know better what they are on about. They are the people who we should trust. I agree that we should perhaps have a few younger people but you cannot use that as a criticism. They know what they are on about because they have been around the longest. I do not mean that in any disrespectful way”.
And neither, my Lords, do I.