Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

I submit that incarceration for violent and sexual offences is a situation where a GRC should not take precedence over unchanged biological sex. The MoJ may be acting lawfully but it is not acting decently nor doing its duty to protect biological-sex women. Indeed, the Ministry of Justice policy documents do not talk about women, but call them non-transgender women, automatically giving top billing to men identifying as women, with real women described as non-transgender. That is why I say that women are being erased from the lexicon. A male, no matter how he identifies, should never be housed in a women’s prison. Like many government departments and organisations, the Ministry of Justice has fallen for the minority, militant transexual agendists, giving far more rights to men who claim to be women than to women themselves. My amendment is a small first step to defend women. There will be many more amendments to come as people realise that the assault on women is now a clear and present danger. I commend my amendment to the Committee.

[Baroness Brinton (LD) [V]]

My Lords, the problem that Amendment 214 is trying to resolve is already addressed in the very strict codes of practice and guidance to the prison sector. Given that there is a full system of assessment of transgender prisoners, the prison environment in which they are currently placed and that in which they would like to be placed, it is worth running through the detail.

The noble Lord, Lord Blencathra, quoted from last year’s judicial review, but paragraph 75, where the explanation for the ruling starts, states:

“It is clear that the number of transgender women in women’s prisons is small, and the number who hold GRCs (and are therefore entitled to be treated as women in accordance with the Gender Recognition Act 2004) is very small.”


I say that in the light of the tone of the speech by the noble Lord, Lord Blencathra, which made it appear that there was a large invasion of trans women in women’s prisons.

The number of transgender prisoners is very small. However, the guidance on the management of prisoners is lengthy and clear, because transgender prisoners have human rights, as all prisoners do, and because they themselves are at serious risk in prison. The most recent statistics are from last year, and in its coverage of the data, the BBC noted:

“The total number of transgender victims far exceeds the number who were suspected of carrying out sex attacks, with only one such case in 2019.”


Between 2016 and 2019, of 97 sexual attacks in the women’s prison estate, seven trans women had been involved in sex assaults, either as the alleged perpetrator or assistant, with 90 of the sexual assaults being carried out by cis women. A further set of figures from the Ministry of Justice states that 11 trans women had been sexually assaulted in the men’s prison estate in 2019 alone. All this tells us that trans women are far more likely to be victims of assault in prisons than perpetrators and that many more women are assaulted by cis women in prison than by trans women.

However, even if the number of trans prisoners assaulting others is very low, it is right that there are safeguards in place, so what does the guidance say? It says that after a prisoner declares and can provide evidence that they are living in the gender that the offender identifies with, there will be an initial local transgender case board which will, as appropriate, make arrangements for transfers to other parts of the prison estate.

The Parole Board published Guidance on Prisoners who are Transgender in March of this year, which sets out the law very clearly for the prison and probation services regarding prisoners who are transgender. The operational guidance states that

“all transgender individuals, irrespective of whether they are located in the estate which matches the gender with which they identify, must be allowed to express the gender with which they identify. However, decisions to locate individuals who are transgender in prisons that do not match their legal gender can be made only on the recommendation of a Complex Case Board. This board will take into account risk factors to the individual and risk to others”.

To make it clear, for any trans prisoners who might also be deemed a risk to other prisoners, a complex case board has to be called for transgender offenders, which will look at the complexity and specifically assess the risk of harm, prior to making decisions about prison location. The views of the offender must be presented to the board, but a number of healthcare and psychology leads would be there to ensure that any move to a women’s prison would be safe.

Options that a complex case board can consider include moving a prisoner to a women’s prison but keeping them in segregation or, if even that is felt to be too risky, moving them into a segregated part of a men’s prison that is staffed as if it were a women’s unit. There are also now a small number of transgender prison units. It seems that this document sets out well all the steps that need to be taken to protect the trans prisoner—who, as I have already said, is at much higher risk of assault than non-trans prisoners—while also protecting the other prisoners from someone who might be deemed a risk.

There was the case of Karen White, who sexually assaulted two women while on remand at New Hall prison in Wakefield in 2017. It is worth remembering that the Prison Service had to apologise in that case because it had not followed the procedures outlined above, failing all prisoners at New Hall. White should never have been put in a women’s prison and, had there been a complex case board, it would have assessed her as being a risk and not put her in a women’s prison.

The current Ministry of Justice and HMPPS 39-page policy on “The Care and Management of Individuals who are Transgender” says at paragraph 1.6:

“The proper assessment of risk is paramount in the management of all individuals in our care. The management of individuals who are transgender, particularly in custodial and residential settings, must seek to protect both the welfare and rights of the individual and the welfare and rights of others around them, including staff. Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all in our care and management.”


The process is there to protect all prisoners and to respect the rights and safety of all prisoners. This amendment is redundant. The actual facts of what is happening with trans women in prisons does not match the opening speech by the noble Lord, Lord Blencathra.

--- Later in debate ---

Moved by

[Baroness Brinton]

214A: After Clause 124, insert the following new Clause—
“Home detention curfews
(1) The Home Detention Curfew policy framework is amended as follows.(2) In paragraph 4.3.1 at the appropriate place insert—“Offenders who have previously breached a protective order”.(3) In paragraph 4.3.5 at the appropriate place insert—“Anyone with a history of offences relating to stalking, harassment, coercive control or domestic abuse”.”Member’s explanatory statement
This amendment would exclude offenders who have previously breached a protective order and those with a history of offences relating to stalking, harassment, coercive control or domestic abuse, from the Home Detention Curfew policy framework.

[Baroness Brinton (LD) [V]]

My Lords, I have laid Amendment 214A and I thank the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Newlove, for also signing it.

The home detention curfew is a valuable and worthwhile scheme, allowing offenders to be released from prison to a suitable address and allowing for a smoother transition back into society. There are, however, a number of violent and sexual offences which rightly cannot be considered under this scheme, due to the risk the offender poses to the victim. This amendment seeks to expand the list of ineligible offences to include those which relate to ongoing harm or risk to a particular individual and which are not already excluded from the scheme. These offences include stalking, harassment, coercive control and domestic abuse.

The Minister knows from the many amendments that were tabled during the passage of the Domestic Abuse Bill and other Bills before it that in cases where perpetrators are fixated and obsessed, by the time they are convicted, many will have either a restraining order or another protective order in place. This amendment says that the home detention curfew should also not be considered in cases where such a restraining order or other protective order has already been breached.

The Government have described a key objective of this Bill as follows:

“We are changing release arrangements for serious violent and sex offenders, as well as for those whose risk to the public increases during their time in custody, so that they serve longer in prison.


These changes have the protection of the public at their core and ensure a firm but fair justice system.”


The victims of stalking, harassment, coercive control and domestic abuse, where the perpetrator has had a protective order made against them, often report that their perpetrator continues to try to control them, whether directly or indirectly, including from prison, sometimes without prison officials being aware.

One example is not untypical of the kind of perpetrator we believe should not be eligible for HDCs. The woman, who wishes to be anonymous, has been a victim of domestic abuse by her ex-husband and has been granted multiple restraining orders for her own protection since divorcing him. He was convicted in 2017 for breaching an order and in 2019 for two breaches of another order, and then faced trial for eight breaches of a third order as well as numerous counts of stalking against her, her partner and her family. This shows a clear history of breaching protective orders—over 10 times—and the victim is currently on her fourth restraining order.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Baroness, Lady Brinton, twice over. First, I thank her for tabling this amendment, which has enabled us to have this short but interesting debate. Secondly, I have to say mea culpa, because I failed to thank her for her contribution in the last group. I should have done so and I apologise for that. I hope that she will be able to hear what I am saying now, via the screen.

The home detention curfew—HDC—scheme has operated since 1999. It provides a managed transition from custody to the community for lower-risk offenders who serve sentences of less than four years. They may be released a maximum of four and a half months earlier than the date on which they must be released in any event, but on average they are released on HDC within three months of their automatic release date.

Offenders who are released under the HDC scheme are released under strict licence conditions. An electronically monitored curfew of at least nine hours a day is mandatory. Location monitoring may be added in cases where practitioners advise that it is required. Importantly, research suggests that offenders released early on HDC are no more likely to commit further offences than if they were released at their automatic release date. Compliance with the curfew conditions is closely monitored and breaches are dealt with robustly, which can lead to a swift recall to prison where necessary.

As my noble friend Lady Newlove pointed out, certain offenders are excluded in law from HDC. They include registered sex offenders, terrorists and those imprisoned for specified violent offences. But, as I have said, most offenders serving sentences of less than four years are eligible for the scheme. I underline the word “eligible”. The fact that a particular offender is, in principle, eligible, does not mean that that offender is suitable for release under the scheme. As the noble Lord, Lord Ponsonby of Shulbrede, has just said, offenders can, for example, exhibit obsessional behaviour. No offender can be approved for release on HDC without a robust risk-management plan in place. Where necessary, the governor can set additional licence conditions that can include exclusion zones or location monitoring. If the result of the assessment is that the offender cannot be safely managed at the proposed curfew address, HDC will simply not be granted.

We recognise that the release of offenders with a history of stalking, harassment, coercive control or domestic abuse can cause additional distress. We do not believe that adding those offences to the list of offences excluded by law and putting a blanket ban in place would be proportionate, or an effective means of safeguarding victims while maximising the benefits of the scheme. But we are currently reviewing the HDC policy framework to ensure that all the appropriate safeguards are in place to protect victims and the public and that unsuitable offenders are not released on HDC. With these reassurances and for these reasons, I urge the noble Baroness to withdraw this amendment.

[Baroness Brinton (LD) [V]]

I thank noble Lords for their contributions to this brief debate. The noble Baroness, Lady Newlove, spoke powerfully of the practical impact on victims of these fixated offenders after HDC has happened. I echo her thanks to Claire Waxman and her staff at the London Victims’ Commissioner’s office for their briefing and their assistance.

The noble Lord, Lord Ponsonby, helpfully reiterated the fixated behaviour of these offenders and how it is in their nature to breach orders. All the examples that the three of us have given show that they are likely to do so—and to do so repeatedly.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

This is about a completely new topic that we have not addressed before, which is the unduly lenient sentence scheme. The scheme allows the Attorney-General to refer to the Court of Appeal a sentence which he or she regards as being unduly lenient. Only the Attorney-General can do it, there is a 28-day period for referral from the date at which the judge has passed the sentence which is impugned by the unduly lenient sentence application, and it applies only to particular identified serious crimes. From time to time, there is a review of which crimes to which it refers, and the crimes have been changed from time to time—always increased, not reduced. It does not apply to the crimes to which it applies if they are tried in the youth court.

One of the great campaigners for change in relation to this is Tracey Hanson, whose son Josh was brutally stabbed to death in October 2015. The person who committed the murder absconded in a private plane, and many years went by before he was finally arrested and charged, convicted of murder and given a life sentence with a minimum sentence of 26 years. Josh’s mother took the view, completely understandably, that this was an unduly lenient sentence. She knew nothing about the unduly lenient sentence scheme until she was told about it on the 28th day. She got in touch with the Attorney-General’s chambers, who said that it was out of office hours and too late to make an application. It would have had to be the Attorney-General who made it, not Tracy Hanson, so the opportunity was completely lost.

Amendment 196A proposes that the Secretary of State for Justice would nominate a government department —almost certainly the CPS—to inform victims and their families of the type of sentence that has been passed, the time limit for an application to be made by the Attorney-General, and that an application by a victim or their family for an increase in the sentence should be made to the Attorney-General, so you do not end up in a circumstance where the victim finds out only at the very last moment that this right exists.

Amendment 196B would allow in very exceptional circumstances the time limit of 28 days which applies to the ULS scheme to be extended. It should be extended only in exceptional circumstances. Those circumstances should include but not be limited to where the relevant body which is obliged to notify the victim or the victim’s family of the existence of the scheme fails to do so. If there was this limited discretion to extend the 28-day period, that would avoid the feeling of injustice that Josh’s mother and the rest of her family experienced.

My Amendment 196C says that, within 12 months from the date upon which the Bill becomes law, the Secretary of State shall undertake a review of the offences to be included within the scope of the ULS scheme to allow consideration of whether other offences should be added. Amendment 196D seeks to render cases tried in the youth court, where they are for one of the index offences, also subject to the ULS scheme. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I am pleased to support the noble and learned Lord, Lord Falconer, on Amendments 196A to 196D, and I thank him for so ably and eloquently presenting the importance of these changes. I am sorry that the noble Baroness, Lady Newlove, has been unexpectedly called away, but, as your Lordships’ House knows, she was the Victims’ Commissioner, and, through her work with victims, she has asked me to say that she is extremely supportive of this group.

I think that most people are aware of the fundamental right in our justice system to appeal a sentence handed down by a judge. Following a sentence hearing, a convicted offender will meet with their lawyer to discuss what comes next and what their rights are with regard to an appeal. This is a fundamental and correct part of our process, and we should hold it in high regard. But what many are not aware of—and this leads me to the necessity of these amendments—is the unduly lenient sentence scheme, which provides the right for anyone to appeal a sentence. This right is of particular importance to the victims of crime and bereaved family members, and the scheme is recognised as a key entitlement in the victims’ code of practice. Operated by the Attorney General’s Office, it provides this fundamental right, which is an important process for victims and bereaved families and can bring comfort and increased confidence in the justice system.

However, as we heard from the noble and learned Lord, Lord Falconer, these rights are not equal in policy or practice, and many victims find themselves learning of their rights by chance, too late or not at all, all of which can have a devastating impact on a victim’s recovery. The scheme, like an offender’s right of appeal, has a time limit of 28 days. This limit provides some assurance for those involved, which we think is important. However, this is where the parity between victim and offender ends, and the amendments tabled by the noble and learned Lord, Lord Falconer, would rectify the problem. While offenders are told of their right to appeal almost immediately following the sentencing, we know that many victims are never informed of their rights at all.

I will briefly tell you about someone who has been denied her rights under this scheme. Claire, a loving mother to a young daughter, was stabbed repeatedly and had her throat slashed by her ex-partner. Thankfully, Claire survived this most horrific of attacks, which was carried out in the presence of her daughter. The offender in the case was arrested and charged, and plead guilty to attempted murder earlier this year. He was handed a life sentence but with a minimum term of just eight years. No justice agency told her of the unduly lenient sentence scheme, and it was only while speaking to Tracey Hanson, whom the noble and learned Lord, Lord Falconer, referred to, that she became aware of it. She spoke to the police about it, and they incorrectly told her that she could not appeal due to the offender having received a life sentence.

The problem is the lack of clarity about this scheme, and the lack of responsibility for telling a victim meant that Claire was unable to request that the sentence be appealed within the 28 days. And so the man who slashed her throat her in front of her young daughter may be released in as little as eight years. We must stop failing victims who bravely come forward to bring offenders to justice and whom we repay with this appalling treatment and injustice.

The revised victims’ code of practice, which came into force in April and codifies the rights and entitlements of victims of crime, assigns this responsibility for informing victims to witness care units. While this is useful and important, it fails to realise that many victims and bereaved family members will have no contact at all with witness care units, leaving many still unaware of their rights. So we must ensure that victims and bereaved families are informed in good time after sentencing, because it is absolutely vital that they are able to use their right to appeal if they so want.

These amendments also seek that the Secretary of State conduct a review of eligibility under the scheme, opening up the possibility of including further serious offences, with the aim of delivering this vital right to more people. Gareth Johnson, MP for Dartford, speaking in the other place, talked passionately of the experience of his constituents: the family of Gemma Robinson, who was brutally beaten by her partner, who was the subject of a restraining order following a previous assault against her. Following this, her partner was arrested and charged with Section 18—grievous bodily harm—an offence recognised under this scheme. Tragically, Ms Robinson took her own life prior to his appearance in court and the charge was reduced to Section 20, malicious wounding. This offence, as it stands, is ineligible for the unduly lenient sentence scheme, so Ms Robinson’s family could do nothing as a sentence of just 3.5 years was handed down.

I thank the London victims’ commissioner, Claire Waxman, and her office for their tireless work in pushing for reform to the unduly lenient sentence scheme. I thank the noble and learned Lord, Lord Falconer, for tabling these amendments and making the possibility of reform a reality. I urge the Minister to support this amendment, not just for those whom the system has failed but for those whom it can stand to benefit in future—those victims and families who feel that in their case justice was not done.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments all refer to the unduly lenient sentence scheme, which is set out in Sections 35 and 36 of the Criminal Justice Act 1988. It allows anyone to ask for certain sentences imposed by the Crown Court to be considered by the law officers where the sentence is felt to be unduly lenient. The law officers—it is ultimately their decision, for reasons I will come back to—may then decide to refer the case to the Court of Appeal. Once it gets there, it is a matter for the Court of Appeal to decide whether the sentence should be increased.

I should underline that it is not a right available to anyone to ask the court to reconsider the sentence. The way the system works is that the request is made to the law officers; their role is to ask the court to increase the sentence. That was set out deliberately and rightly in the scheme. We prosecute in this country in the name of the Crown; we do not have, with very few exceptions, private criminal prosecutions. The instances of the scheme going wrong or people not knowing about it, as we have just heard in the cases of Tracey Hanson and the appalling murder of her son Josh, and the terrible attack on Claire in front of her young daughter, are terrible to hear about. One can only imagine the consequences for those families.

I therefore understand the motivation behind Amendment 196A. It is critical that victims, prosecuting authorities and members of the public are aware of the ULS scheme. I heard the noble Baroness, Lady Brinton, talk about a lack of clarity. She quite rightly referred to the revised Code of Practice for Victims of Crime, or the victims’ code—I am grateful to her for doing so—which came into force on 1 April this year. It provides victims with the right to be informed about the existence of the scheme and includes, as we heard, a requirement for the witness care unit to inform victims about the scheme promptly when sentencing takes place. In addition, the Crown Prosecution Service references the scheme in its leaflet entitled Information for Victims. There is provision in place to ensure that victims and their families are informed of the scheme.

It is not the case that it is left to victims or bereaved families to contact the law officers. The Crown Prosecution Service can and does make requests directly to the Attorney-General for cases to be referred to the Court of Appeal in instances where the prosecuting authority considers the sentence to be unduly lenient. Those requests are considered by my right honourable and learned friend the Attorney-General in the way that she considers all such requests. While I understand the motivation behind Amendment 196A, I suggest that it is not required.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Garnier (Con)]

Many things could be added to the Bill and many could be taken away but the general thrust of the law, as my noble friend well understands, being a barrister of considerable experience, is that where a burden is placed upon a defendant in a criminal matter, it is set to the civil standard of proof.

[Baroness Brinton (LD) [V]]

My Lords, I am grateful to the noble and learned Lord, Lord Garnier, for explaining his amendment in such helpful detail. However, my focus is on suggesting that Clause 63 should not stand part of the Bill. The principal reason—much of which we debated the other day, so I will not go into it in great detail—is the effect on the Gypsy, Roma and Traveller community. It is particularly about the use of the vague and expansive provisions of significant “disruption” and “distress”. “Damage” may be easier to define, but there are perhaps some issues about that as well.

Clearly, a range of provisions is already on the statute book which criminalise committing criminal damage. Section 1 of the Criminal Damage Act 1971 allows courts to grant injunctions against people engaging in antisocial behaviour—I could go on. The real concern is that this is clearly targeted at the Gypsy and Traveller community. To repeat a point that I made the other day, the definition of “significant” is not clear in the Bill. The Supreme Court recently characterised “significant” as follows:

“like the skin of a chameleon, the adjective takes a different colour so as to suit a different context.”

However, “disruption” itself has also been controversial in the context of public order legislation and is hugely open to interpretation. Part 4 directs authorities to focus exclusively on disruption caused by roadside camps, rather than inviting this to be balanced against the relative disruption caused by evicting Gypsy and Traveller families, to ensure that the response is proportionate.

“Distress” is also a broad and highly subjective category. The National Police Chiefs’ Council asked, in its evidence to the Joint Committee on Human Rights,

“whose distress? Is it the landowner’s? Is it a perception?”

This nebulous term may, in this context, also be informed by stereotypes and prejudices against Gypsy, Roma and Traveller communities. We heard noble Lords last week making assumptions about the distress that the presence of camps alone may cause—of having an encampment nearby—and that this was also the source of crimes. Most noble Lords who said this also said that they could not prove it, but certainly among the community there is considerable distress already.

As I said, there are existing powers to address this. Section 61 of the Criminal Justice and Public Order Act 1994 gives the police the power to remove people from land where the landowner or occupier takes reasonable steps, and Section 62A allows the police to direct trespassers to remove themselves and their vehicles and property from land where a suitable pitch or relevant caravan site is available within the same local area. This is particularly important in terms of the data that we heard about the other day—that there are fewer authorised encampments available. There are more unofficial ones, but it is a real problem for people travelling from one area to another and intending to carry out their lawful business if they cannot find somewhere to go. The difficulty with Clause 63 is that it heaps further problems upon them but uses terms which are not well defined and are utterly nebulous, and which put this community at further risk of having their way of life criminalised.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

[Baroness Hayman (CB)]

My Lords, this amendment is in my name and those of the noble Baronesses, Lady Cumberlege and Lady Brinton, and the noble Lord, Lord Pannick. I am grateful to all of them for their support.

This amendment seeks to provide protection for mothers from being photographed or videoed without their consent while breastfeeding their babies. I suspect that few Members of the House will have been aware that such unpleasant, intrusive and distressing behaviour takes place at all, and will be surprised that it is not actually an offence. I suspect that even fewer would seek to defend what the then Minister, Victoria Atkins, described in Committee in another place as

“this unacceptable, creepy and disgusting behaviour”.—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 24/6/21; col. 748.]

Ms Atkins paid tribute in that debate to the many women who have shared their experiences and distress, and their demands for a change in the law in recent months, as do I.

I particularly congratulate Julia Cooper, who began the campaign for a change in the law after her own experience, and initiated a petition that has now been signed by over 30,000 people and supported by organisations such as the National Childbirth Trust, La Leche League and Mumsnet. Her experience was this: during a visit to a park in Greater Manchester, she noticed a man first staring at her as she fed her baby and then attaching a long-range zoom lens to his camera and taking photographs. She confronted him and asked him to delete the photos. He refused, saying it was his right. She then approached a park warden. He also unsuccessfully asked the man to delete the photos and then said that there was nothing more he could do because the law offered no protection. The response of Greater Manchester Police was exactly the same: sympathetic but powerless. Other women have come forward with similar stories and described how deeply distressing and violating an experience it has been, and their shock at having no recourse when their privacy has been invaded in this way.

This amendment therefore seeks to provide protection and a remedy for individuals affected by this unpleasant behaviour, and to deter and, if necessary, punish those who perpetrate it. But the context is not simply a matter of protecting the individual. Successive Governments have supported and protected women who breastfeed their babies, and continue to promote this public good. The Department of Health encourages women who can and choose to do so to breastfeed their babies because it brings powerful public, as well as individual, health benefits. Only last week, the Chancellor allocated £50 million to support breastfeeding in his package of help for young babies and young families. The Equality Act protects breastfeeding mothers from discrimination in employment and the provision of services. So it is illegal for a cafe owner to refuse to serve a breastfeeding mother, but not for a man to hover over her with a camera, videoing her as she feeds her baby in a playground.

Far fewer babies are breastfed in this country compared with many others in Europe and beyond. It is very obvious from repeated surveys on the issue that embarrassment and the logistical difficulty of combining feeding a baby with “normal life” is one of the main deterrents that keeps breastfeeding rates in this country so low, with all the detrimental effects on individual and public health. Failing to sanction unwanted, intrusive photography can only add to women’s reluctance and their fears.

Noble Lords will recall that, in 2019, Parliament took action against another unpleasant, intrusive aggression against women, upskirting, by passing the voyeurism Act. But the provisions of that Act are very narrowly defined and do not protect women in the circumstances we are discussing today. This amendment mirrors the provisions of the 2019 Act by adding the photographing or videoing women breastfeeding without their consent to the list of prohibited acts under the Sexual Offences Act 2003, to which the provisions of the Voyeurism (Offences) Act then apply.

When this issue was discussed in Committee in another place, the Minister did not query the need for action, and obviously shared the disquiet among Members at the present situation. She suggested that the matter could be considered in the strategy on violence against women and girls, but that strategy has now been published without any reference to the issue. Her main argument, however, was that we should wait for the Law Commission, which is reviewing the law around the taking, making and sharing of internet images without consent. That is a very broad subject, and we know how slowly grind the wheels of such a report’s journey to legislation. Even when the Law Commission recommends action, there is no guarantee that it will be agreed. Fewer than 50% of Law Commission reviews commissioned in the past decade have, as yet, led to legislative change. Rather than waiting on a review that may or may not be accepted by the Government after more consultation, and then for a relevant legislative vehicle, we have the chance in this Bill to act on the specific, clearly defined issue and to protect mothers and babies now.

I am ashamed to say that it is nearly 50 years since I first entered Parliament. One thing that I have learned in that time is that legislative time can be as precious a commodity as financial resources. This Bill gives us the opportunity to protect women from the damage and distress that is currently occurring. I hope that the House and the Minister will agree that we should grasp that opportunity. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I have added my name to this amendment. I start by thanking the campaigner, Julia Cooper, who the noble Baroness, Lady Hayman, quoted earlier, for her extraordinary diligence and campaign and her 30,000-signature petition to Parliament. I also thank the excellent Pregnant Then Screwed charity and Stella Creasy MP for their briefings.

The noble Baroness, Lady Hayman, has spoken eloquently on the need to add to the offence of voyeurism that of those breastfeeding. I echo her comments on the critical need to encourage mothers to breastfeed for as long as possible—hopefully for a minimum of six months. The truly long-term health benefits to babies are well evidenced, not least in the extra immune protection they are given, lasting for years. It is good that Clause 13(6) of the Equality Act 2010 currently protects breastfeeding women by saying that any business that displays less favourable treatment, or denies a woman access to goods or services, because she is breastfeeding can be in breach of the Act. This has been tested in the courts under the employment discrimination in McFarlane and another v easyJet Airline Company Limited, where the employer did not provide reasonable adjustments for new mothers who returned to work while still breastfeeding. However, there is no protection in itself of the act of breastfeeding, so it cannot be used to require the police or the courts to act to tackle the practice of taking photos or videos without consent.

I was pleased to be a member of the Liberal Democrat team supporting the Voyeurism (Offences) Act 2019, which created the criminal offence of up-skirting. Offenders now face up to two years in jail and being placed on the sex offenders register for taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks. This law banned the degrading practice, with the intention of deterring perpetrators, better protecting victims and bringing more offenders to justice. As the law specifies the location in the body to which the Act applies as being below the waist, this legislation does not protect those who breastfeed from a similar intrusion. I remind your Lordships’ House that we did not need to wait for a Law Commission to decide whether that Act should go through.

Julia Cooper’s experience, outlined earlier by the noble Baroness, Lady Hayman, is chilling. The 30,000 people who have signed her petition, and the evidence taken from Pregnant Then Screwed, show that this is not an isolated incident. Polling by YouGov in May this year shows that 75% of the public think that breastfeeding voyeurism should be banned. One new mother told Pregnant Then Screwed: “Just a few weeks ago, in my first time out with my new-born, feeding on a park bench, a man walks past, gets a camera out and, pretending to take a photo of something behind as he walks by, the camera tilts down on me. He caught me off guard so I didn’t say at the time, but I am now far more conscious of who is looking and would call them out. But we shouldn’t have to think like this.”

Why should we not follow the recommendation of Victoria Atkins MP, the Government proposal that the ongoing Law Commission review on taking, making and sharing intimate images without consent is the correct vehicle for legislation? This review is currently expected to report in the spring of 2022 and might make recommendations to expand the list of protections under voyeurism legislation, but even this is not guaranteed.

This simple amendment echoes the up-skirting legislation by seeking to amend the Sexual Offences Act 2003. It also uses the language of the 2019 Act and would require consent to photograph or record breastfeeding without prosecution, ensuring that women breastfeeding are given the same protection. If passed as part of this Bill, it would quickly—in legislative terms—give protection to women who breastfeed, without compromising the Law Commission review, which would have time to consider this change, if necessary, in more depth.

It is important to say that the amendment has the support of the National Childbirth Trust, the La Leche League and the Breastfeeding Network. Those of us in favour of the amendment are pleased that the Government think that it is unacceptable for breastfeeding voyeurism to take place. I thank the Minister for that, but will he say why, if the Government support the principle of the amendment, it would be acceptable to delay its implementation for years, which would be the result of taking the Law Commission route? Why not use the route of the up-skirting legislation, which did not have to wait for the Law Commission? I hope that the Minister will be able to support the amendment.

[Baroness Cumberlege (Con)]

My Lords, with great alacrity, I support the amendment put forward so clearly by the noble Baroness, Lady Hayman. The noble Baroness, of course, has had a very distinguished career. We think of her as our first Lord Speaker in this House, but she also has a wide experience in health and other matters beyond. However, I just thought: “Breastfeeding? Why is she coming forward with an amendment on breastfeeding?” Then I understood that, when she was in the House of Commons, she was the first woman in Westminster to breastfeed. That must have taken a lot of courage and I congratulate her on that. Not only that, but, of course, as a Member of Parliament in the Commons, she also had the skills to manage the organisation of her constituency as well as a new baby. We know that new babies can be all-encompassing.

The noble Baroness, Lady Hayman, and I are fellow practitioners in breastfeeding. She has four sons and I have three sons. My aunt had six sons, and I thought that the writing was on the wall: three is plenty. I have to say that they have grown up and they are very nice young men. We, the practitioners of breastfeeding, know that breast is best. There is no argument about it: it is best for babies and best for mothers too. In fact, my husband said to me the other night: “It is best also for us, you know—the partners—because we don’t have to get up at two in the morning to feed the baby.” So he said there was a bonus there.

When I was a junior Minister in your Lordships’ House, I did my very best to promote designer food for babies. That is what we called it. We know that it improves the baby’s immune system, the respiratory system, the digestive system, the heart and circulation, the joints and muscles and much more. It is such an important start to life.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

The Ministry of Justice had a review in 2019 and found strong evidence for extending the law to include those individuals who had influence or authority over 16 and 17-year-olds by virtue of the roles and activities they undertake within a sport or religious setting. But the review dealt only with abuse in sport or religion and took evidence or consulted on the basis of only those activities, even though the same situation can arise in individual music teaching, ballet teaching, or rehearsing and training in drama. All of those engaged in all such activities operate in a position of trust which can be abused. So, where is the difference? Ministers may argue that they can attend to these other areas later, but what happens if we get cases in the meantime where there is not available to the prosecution what would be available to them in cases involving sport or religion? I do not understand the logic of that, but I am sure the Minister will explain it to me. He may still have to do quite a bit to convince me we can separate out sport and religion without looking at these other areas.

[Baroness Brinton (LD) [V]]

My Lords, my noble friend Lord Beith is right to lay his Amendments 111 and 112 to the Bill, asking whether to restrict Clause 45 and the Sexual Offences Act 2003 to those listed in positions of trust, currently including sport and religious activities. He has explained why his amendments have specifically added dance, drama and music, and I entirely support his argument. I am afraid that, over the years, there have been too many examples of young people aged between 16 and 19 and even, frankly, in their mid-20s, who have been abused or coercively controlled by people with whom they have been working on various activities. My noble friend cited the example of dance; I am afraid the same is true of the music sector, where a lot of teaching is one to one and supervision has to be taken to some extent on trust. That means the structures of safeguarding and support to ensure that that position of trust is not abused need to be rigorous.

Formal sports activity, for one of my children, started as an after-school club. Some children were then selected by the same school coach for the county team. There were then journeys to county practices and preparations, and competitions across England. There are now too many examples of sexual abuse by gymnastics coaches and staff, which is why the Whyte review was commissioned. Its interim report was published earlier this year and I look forward to seeing the entire report because, frankly, this is a problem in sector after sector, within sport and elsewhere, and I am beginning to wonder whether we need a formal review on each one before action is taken.

But this is not just a sporting issue, or even one just for dance, drama and music. Another activity that is currently excluded is chess. An almost identical process to the gymnastics example that I gave earlier was in evidence at the same school of my children, starting at primary and continuing through 11 to 18 secondary school. It started as an after-school activity and progressed to competitions at county or national level. There was one gatekeeper—the coach—and nobody else. To be clear, I am not aware of any cases of abuse in chess in the UK, but that is not true in other countries, notably the US, where there have been some scandalous cases in Philadelphia, California and Florida, which read almost identically to those that we have seen in gymnastics and other sports in the UK.

The root of the problem, as outlined by the organisation Mandate Now, is:

“The sexual and physical abuse of a child, or neglect, is not a reportable offence in either England, Wales or Scotland despite child sexual abuse being a crime in all jurisdictions. Bullying, emotional or verbal abuse, like sexual abuse currently, can only be addressed by ‘guidance’ which is unenforceable.”


That is why protection for those in a position of trust is absolutely essential. As the noble Baroness, Lady Grey-Thompson, discovered in her excellent review of the duty of care in sport in 2017, if there are no structures to ensure that organisations—in this case, schools and the governing bodies of the activity concerned—can hold their people to account, abuse and coercive control can flourish undetected.

I have a question for the Minister. I am struggling to understand why only one or two activities are being added at a time. As I said earlier, will the Minister say whether it will take a formal independent review of each area of activity before it is understood that anyone in a position of trust with these young people needs to be regulated in the same way?

Assisted Dying Bill [HL]

Baroness Brinton Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, we have had an extraordinarily moving debate from both sides of the argument as well as from all parts of the House. It is typical of your Lordships’ House that we have respected one another’s views even if we disagree.

I thank the noble Baroness, Lady Meacher, for her Bill and for the way in which she set out why an assisting dying law is urgently needed in the United Kingdom to address the unacceptable suffering of dying people and the dangerous lack of protections in the current law, but also for explaining how protections and safeguards are stronger than in former Bills that have come to Parliament. Safety and end-of-life choice are not mutually exclusive. That is why I support the Bill.

I congratulate the noble Baroness, Lady Davidson of Lundin Links, on her maiden speech, a moving picture of her journey from officially opposing former Bills in Scotland to welcoming this one. I say to her that she has joined the right legislature if she wants to break convention; I think Prime Ministers of all Governments in recent decades regard your Lordships’ House as a place to challenge conventions. She will feel at home here very quickly.

As a Christian, I thank the most reverend Primate for his comment that people of faith hold different views. Polling by Populus in 2019 showed that 80% of people of faith also supported assisted dying, and evidence from around the world—such as Spain, 10 states in America and Australia—shows that where there are strong communities of faith there can also be a right to an assisted death. There is nothing sacred about suffering nor holy about agony. Yes, life is precious and God-given, but we can still help people avoid a terrible death at the end of that precious life, when death is near anyway.

No one who supports the Bill sees palliative care as needing less support. We all want to see the work of the noble Baroness, Lady Finlay, and others fully funded, so that everyone who needs it can have access to it. In a perfect world, no one’s final days—or, as the noble Lord, Lord Ramsbotham, said very movingly, over a year in the case of his wife—should be in continuous agony or severe distress.

Various speakers have talked about palliative care funding being reduced after the introduction of assisted dying legislation. When the Australian states of Victoria, Western Australia and Queensland passed their assisted dying legislation, their Governments increased funding for palliative care services by between 17 million and 170 million Australian dollars; that is between £9 million and £90 million. Research from the United States has found that assisted dying laws contribute to open conversations and careful evaluations of end-of-life options, more appropriate palliative care training for doctors and greater efforts to increase access to hospice care. These benefit all dying people, not just those who want an assisted death. The fact is that states with assisted dying have very few people who choose to use it.

As a disabled woman, I was moved to hear the noble Baronesses, Lady Campbell of Surbiton, Lady Masham and Lady Grey-Thompson, and the noble Lords, Lord Campbell-Savours, Lord Low and Lord Shinkwin. Like others in this House, they are divided in their views, but their and many other speakers’ key issues about the protection and the rights of the disabled are absolutely vital. The noble and learned Lord, Lord Neuberger, was right to point out that if legislation and regulations are abused, it is up to Parliament to legislate against that abuse and our police to ensure that it stops.

The noble Baroness, Lady Lister, reminded us that the disabled community in Victoria, Australia, was involved in designing the legislation. Disability Rights Oregon has never received a single complaint about any negative aspect of Oregon’s assisted dying legislation.

Opponents to the Bill talked about people in countries where assisted dying is legal citing that they feel a burden on family and loved ones. The vast majority of people who have an assisted death in places where it is legal cite the loss of autonomy and dignity as the two major contributing factors for wanting an assisted death. Not wishing to be a burden is a concern among all dying people but is cited relatively infrequently by those requesting an assisted death. It is certainly there, but behind concerns over autonomy and effective pain relief.

My noble friend Lord Purvis talked about visiting both Oregon and Washington. In those states, these concerns are recorded by doctors based on conversations with the person requesting an assisted death. They are not reasons for seeking an assisted death, nor motivations given directly by the terminally ill person.

The noble and right reverend Lord, Lord Eames, and my noble friends Lady Smith of Newnham and Lord Clement-Jones spoke movingly about balance and the need for strong safeguards. UK clinicians already assess life expectancy and decision-making capacity and, hopefully, detect coercion. Under the Bill, this process goes further and will be done in triplicate: two independent clinicians and a High Court judge. If five states in Australia, New Zealand and 11 states in the US are able to develop, implement and monitor their assisted dying laws, which balance protection and autonomy, we can too.

We know from front-line clinicians in Australia and the US that open, honest end-of-life care conversations that include the discussion of all available options, including palliative care, are of great value and comfort to the patient. They often result in the patient deciding not to choose assisted dying, and that is just as it should be. If only we had a culture in our country of open, honest end-of-life care conversations. We have much to learn.

Claims that the current law works well and protects vulnerable people do not stand up to scrutiny. If we are serious about the risks to vulnerable people, we must accept that, under existing law, a hypothetical bad relation could encourage an elderly or disabled person to bring their life to an end. There are far fewer safeguards on, for instance, withdrawal of treatment, “Do not attempt resuscitation” orders, or voluntarily stopping eating and drinking in comparison to the safeguards provided in the Bill, where the decision is in the hands of the individual, not other people.

I thank my noble friend Lady Harris of Richmond and others for letting us hear the voices of those whose loved ones’ deaths have not been good. Three years ago, my sister in Spain was in hospital with terminal and multiple cancers. Her doctor did not believe in deep sedation, and my young nephew and niece had to watch as their mother lived her final days in total agony. This year, Spain has introduced assisted dying with proper safeguards and, just as importantly, a complete change in the way it handles end-of-life care. The two can go hand in hand. Deaths like my sister’s should not happen again.

That is why a clear law, as proposed in the Bill, would protect vulnerable people, as no one could access an assisted death without going through multiple up-front safeguards; any potential coercion that could be detected in advance, rather than after someone has died, would be stopped. As my noble friend Lord Glasgow said, assisted dying is a moral and clinical issue whose time has come, and the UK public agree.

The many personal stories told today add to the clear evidence that the blanket ban on assisted dying is dangerous and cruel. I believe the Bill proposes a robust, safe and compassionate alternative. I hope your Lordships’ House will give it a Second Reading and move it on to Committee.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I was unable to speak at Second Reading on this topic of the police covenant. As the noble Lord, Lord Coaker, has already noted, this is an extraordinarily large and complex Bill, and Second Reading speakers were limited to a mere three minutes, meaning that, inevitably, some matters could not be raised. I apologise for raising what is from my perspective a new issue. Before I begin, I pay tribute to my noble friend Lady Harris for her many years of campaigning for the well-being and support of police officers.

I support all the amendments in this group, Amendments 1 to 7, which seek to ensure that police officers and former police officers have access to health services and particularly to mental health support, and to set this down in the Bill as an equivalent of the Armed Forces covenant. I will come on to the covenant later in my contribution.

We must recognise that our police officers and other emergency service personnel are on the front line day in, day out, often facing many things daily that ordinary members of the public would hope never to see once in their lives. That for decades police officers have “manned up” and internalised problems, because that was the culture, perhaps makes mental health pressures even more inevitable. The Police Federation reports that resilience in the service is at an all-time low and that officers are being put under inordinate amounts of pressure, which is taking its toll on their health and well-being. Even worse, the unprecedented cuts to the police service have meant that officers are under more strain now than ever before. While many are asked to do more and more with fewer resources, and have risen admirably to the challenge, it is inevitable that the increased pressures they are facing will have an impact on them, mentally and physically.

The Police Federation campaign “Protect the Protectors” noted that between 2015 and 2017, over 20 police officers took their own lives each year. That is almost two a month. Something must change. Research has shown that emergency workers are twice more likely than the public to identify problems at work as the main cause of their mental health problems, but they are also significantly less likely to seek help—the “man up” culture. Therefore, it is good that in 2017, the Police Federation developed a nine-point plan for police organisations to work with it, supporting serving staff and ensuring that the well-being and mental health of staff is properly delivered as soon as it is needed.

There are 48 organisations that have worked in partnership with the Police Federation and with the mental health charity Mind. The guide that they have produced has all the information that employers need to set up and deliver mental health support in all blue-light organisations. This week, another excellent campaign, the Blue Light group, has reported that 87% of emergency responders have experienced stress and poor mental health. The noble Lord, Lord Coaker, was looking for good news, and it is that 83% of those who accessed this support through their organisation found it helpful. Mind tells me that the Home Office funding for this essential work—which has been running since 2015—is due to run out in March 2022. Can the Minister confirm that the Home Office will continue the support and funding for this vital work, not just support for blue-light workers but a blue-light service for blue-light workers?

Some officers are very badly affected and need more than can be offered by counselling and other internal support. The Police Federation tells the story of Richard, a DCI with a provisional diagnosis of PTSD when he sought help, which explains much of the pressure and distress that so many officers face.

End-to-end Rape Review

Baroness Brinton Excerpts

Tuesday 22nd June 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, we can certainly agree on the last point. The focus of the criminal justice system is indeed to make sure that rapists are answerable for their crimes—and they are heinous crimes.

I obviously cannot comment on the particular instance that the noble Baroness mentioned. Of course, the CPS is quite properly an independent agency; decisions to prosecute or not to prosecute cannot and must not be taken by Ministers. But what I can tell the noble Baroness and the House is that the CPS is committed to reversing the negative trend in prosecution volumes seen over recent years. The CPS and the police are putting together a joint plan. The CPS is itself committed to a range of actions to drive forward improvement. This includes consulting and publishing revised rape legal guidance, including new content on challenging rape myths and stereotypes. From what I heard of the example given by the noble Baroness, that is a good instance of “rape myth”, and it behoves everybody engaged in this debate to make sure that the public know the facts and are not distracted by myths.

The noble Baroness asked me a couple of precise questions on funding—in particular, the division of the £70 million figure as between rape victims and domestic abuse. May I please write to her on that point, together with the other point on funding which she put to me?

[Baroness Brinton (LD) [V]]

The Statement says that Operation Soteria will transform how the police and CPS handle investigations into rape and sexual offences, and the Operation Bluestone pilot in Avon and Somerset has shown that there is an effective way of working. Can the Minister say if it is true that Operation Soteria will involve only four police forces and has funding for only one year? This is hardly a universal rollout of a new culture of transforming rape services. Can he say when it will be rolled out and properly funded across the country? Victims and victims’ organisations have rightly made it clear that not one day should be lost.

[Lord Wolfson of Tredegar (Con)]

My Lords, it is not only Operation Soteria that we need to focus on. As part of Operation Soteria, we are working with pathfinder police forces to test the latest technology, including advanced analytics such as machine learning, to, for example, get data off phones as quickly as possible. We will certainly make sure that all police forces have access to the best technology available, so that all victims around the country can see the improvement that the Lord Chancellor and I—indeed, the whole Government—want to see in rape prosecutions. That will involve work not only with the police but with the CPS.

Domestic Abuse Bill

Baroness Brinton Excerpts

Wednesday 21st April 2021 Lords Chamber

We have 20 years of evidence to demonstrate that the current system is not working. It is too late for more guidance and more words; it is time to act. I therefore urge the Minister to accept my amendment, so that perpetrators are no longer able to act with impunity, so that fewer women and girls live in fear and fewer lives are tragically lost at the hands of serious and serial domestic abusers and stalkers. I look forward to the Minister’s response, specifically on the inclusion of perpetrators of stalking on the register and new database and on the perpetrator strategy. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I strongly echo all the points made by the noble Baroness, Lady Royall, but am profoundly upset that Ministers seem to have gone backwards since we last debated this matter in the Lords on Report. The Minister referred to the 30 deaths that we reported at that time, but at least 16 further women have been murdered since Report on 15 March—a mere 36 days ago. This is deeply shocking evidence of the current failures.

As a new Member of your Lordships’ House, I was invited to join the independent parliamentary inquiry into stalking law reform chaired by Elfyn Llwyd MP. At the start of its report, there is a quotation that is important in the context of Amendment G1 today. Tracey Morgan, a victim and now a supporter of many other victims, said to us then,

“The victims I hear from are saying the same things I was 15 years ago—what’s changed? We need to do more. This is about murder prevention.”


Ten years on, nothing has changed. That is 25 years of Tracey’s experience and hundreds of murders. One key perpetrator recommendation from our stalking inquiry remains outstanding, which is having a register of serial stalking perpetrators. Why are they not mentioned in the Government’s amendment?

The Minister insists that Motion G1 is not needed because the problem is one of better management to make the various parts of the multiagency system work better everywhere. We all know that there are pockets of excellent practice, but the safety of victims and the de-escalation of the behaviour of these dangerous perpetrators should not be a postcode lottery. It should be consistent and should give confidence to victims and all those working with them. It should save lives.

I think we all agree that the current MAPPA arrangements need to improve. In 2017, HMICFRS inspected a number of MAPPA cases; this resulted in its report, Living in Fear. The headlines in that report are deeply shocking, with 100% failure in 112 cases inspected across six police force and CPS areas. Victims were left at risk and let down by under-recording and inconsistent services, with patterns missed and incidents being treated as isolated. Victims said that they wanted the police to understand the bigger picture and to receive specialist-led training. There was often no risk identification, assessment or management of stalkers.

In Committee, I talked about the need for a golden thread to run through all interactions with victims and perpetrators. This is particularly vital for perpetrators because we know that their behaviour escalates and becomes more obsessive and violent as time goes on. Only by getting them into the MAPPA process can we achieve that and ensure that this golden thread provides an oversight of behaviour.

Last week, Channel 4’s excellent documentary “24 Hours in Police Custody” had an episode called “Death Us Do Part”. It focused on the 2019 Bedfordshire Police investigation into a severe attack by a female perpetrator on her male partner. She gave him two bleeds on his brain and a fractured eye socket. We saw the frustration that the excellent police domestic violence team faced. The attack on Paul Jenner came just two days after his partner’s early release from prison after a previous serious attack on him. It was evident that there was no contact with HM Prison and Probation Service. The custody sergeant even commented that they knew her well and that it is as if a switch gets turned on and she cannot stop herself attacking him. The investigating officer was struck that after she was arrested, she was already texting her partner, who became frightened and unwilling to co-operate. The officer and her team finally persuaded him that they could help him, but their efforts were constantly undermined by the coercive control that the perpetrator had over him. Sadly, he died a few days later. Given the number of attacks she had made on him over many years and the increasing severity of those attacks, she was well known to everyone in the system. That is why serious and serial domestic violence perpetrators need to be on the register and why there needs to be a duty for all the multiagency partners to work together. If that had happened, this “never event”—a predictable event that should never have been able to happen but did—could have prevented because that golden thread would have prepared and supported Paul Jenner and his partner on her release from prison.

Stalking Awareness Week started on Monday. Robert Buckland QC—incidentally, he was a member of the stalking law reform inquiry with me a decade ago—made a moving video as Secretary of State for Justice, and I agree with the noble Baroness, Lady Royall, that he has been a champion for getting on top of stalking. He said of stalking: “We need to call it out. We need to stamp it out. We need to do all we can to deal with the menace of stalking in our society.” I agree. However, that will never happen until a duty for multiagency response is enshrined in legislation, with a database and register to provide that golden thread to identify and stop stalking and domestic abuse perpetrators and save lives. I beg the Government to reconsider.

[Lord Russell of Liverpool (CB)]

My Lords, I am not a fan of acronyms at the best of times, but I feel that this evening does call for one, and it is DVAOA—which, as everybody will know, stands for “déjà vu all over again”. So here we are again.

Last Thursday, in another place, there was a lamentable performance by the Government, I must say. For those who have not watched it, I suggest you take a stiff gin and tonic and then sit back and enjoy it. Particularly if you are of the Government’s persuasion, it is not very nice to watch. To her credit, the noble Baroness the Minister, as one might have expected, has performed immeasurably better, and I am very grateful to her for the opening speech, which I thought contained some very positive elements. Because of that, I will rein in the rant that I was going to deliver and make it a rather smaller rant than I would have delivered otherwise.

Why am I and others on our feet again? Some of what the noble Baronesses, Lady Royall and Lady Brinton, have said very comprehensively has already covered that, but I was going to wave three exhibits. The first was the report that Robert Buckland, our Justice Minister, undertook about stalking and the recommendations that he made. The second, exhibit B, would be one of a certain Alex Chalk, Parliamentary Under-Secretary at the Ministry of Justice, who, in his own stalking review, which he did with a fellow Gloucestershire MP, strangely used exactly the same wording as Robert Buckland’s report, basically saying

“Consideration should be given to the production of a register of serial perpetrators”.


Last but not least, exhibit C is from our Home Secretary herself, Priti Patel, who in 2013 edited a report called Rebalancing the Scales for victims. One of the contributions, which she was responsible for editing, said very clearly that a database should be established comprehensively to cover all perpetrators and stalkers.

On Thursday in another place, the Government effectively admitted that the current system is not working as it should, that the current database is out of date and is not working as it should, and the Minister in the Commons, in a much more pared-down way, indicated some of what the Minister said earlier this evening. But what we are really talking about, and this goes back certainly as far as 2004, is a fundamental failure of management and leadership.

I do not have a background in government or public service; I have a background in business, and where I come from, over all those years, the sort of failure of management and leadership that has been consistent through changes in government, changes in Minister, changes in special adviser, would be regarded as a sacking offence, and certainly as a career-limiting offence. Given the awful, relentless toll of women dying, week in and week out, I think that, in the world I come from, it would also be regarded potentially as corporate manslaughter. Noble Lords know what the penalties are for corporate manslaughter: they are considerable. But because this is a Government, and because we are dealing with statutory agencies, that is not an option—but it really is not far off, and it is shameful. And the death toll relentlessly keeps going up, and will keep going up, whatever fine words we say.

As I said, the Minister has been very helpful. I was going to say that, until the point she spoke, I was much clearer about what the Government did not want to do than about what they do want to do, and I am very grateful that she has given some clear indications about the direction they want to go in. We have had, as I am sure the Minister has, some fairly intensive conversations with the domestic abuse commissioner’s office about how she sees things, going forward. She too knows and admits that the current system is not working, but, naturally, given her role and the nature of her relationship with government, she wants to be positive and to try to make it work. I am very keen to be positive, too, and to try to make this work.

Assisted Dying Bill [HL]

Baroness Brinton Excerpts

Friday 16th January 2015 Lords Chamber

[Baroness Grey-Thompson]

My Lords, I wish to raise two brief points. The first is on the rate of diagnostic error, which has already been mentioned. The Royal College of Pathologists gave evidence to the Select Committee looking at the Bill of the noble Lord, Lord Joffe, which heard that diagnostic errors are common. The report says:

“The Royal College of Pathologists drew attention to ‘a 30% error rate in the medically-certified cause of death’, with ‘significant errors (i.e. misdiagnosis of a terminal illness resulting in inappropriate treatment) in about 5% of cases’”.

Secondly, I wish to raise a point of clarification with my noble friend Lady Meacher. She does not appear to be in her place, but it is a question that applies probably equally to the noble and learned Lord, Lord Falconer. My noble friend talked about autonomy at the point that somebody chooses the right to end their own life. To me, that suggests that the drugs or medication would be in the person’s possession and in their home, as it is in Oregon. I should like some clarification on whether the Bill is suggesting that the person would have the drugs available to them in their home. For me, it is important to understand the timeline of how the decision-making process will take place and whether there would be a tiered approach. An awful lot of people who write to me assume that, if the Bill becomes law and they are able to choose the time that they end their life, it will be in their own home and with their friends and family around them, not in a medical facility, and that they will not have to go through a huge series of hoops in those final moments. It is really important for me to understand whether these drugs that will kill people will be in a person’s possession in their home.

[Baroness Brinton (LD)]

My Lords, the noble Baroness, Lady Campbell, has spoken movingly from her own experience and, indeed, her expertise. I am sure I am not alone in respecting her greatly for that and for ensuring that this House hears the views of people in the disabled community who are worried that this is a thin end of a wedge.

I suffer from a life-limiting illness. In most cases, it is not terminal but it is degenerative if it is not got under control. To answer one of the points raised by the noble Baroness, Lady Campbell, I, too, have the risk of catching a very serious infection because my immune system is compromised by the medication I am on. I would not expect anything short-term such as that to be considered by my medical practitioners—or even by myself, as happened to me at Christmas—as being part of the longer-term degeneration of a terminal condition. It would be worrying if we believed that the Bill was giving that thought some traction. The timescale for approval reflection within the Bill means that in the case of a temporary or short-term illness, any medical practitioner would be likely to advise someone that they should not be making a decision at that time because it would not necessarily mean that the rapid progress of the disease itself was an issue.

I want to make some very specific points on some of the amendments in this group. First, I am concerned about the impracticality of Amendment 13. Often when someone discovers that they are in the terminal stages of an illness, they will move to be with family; they are therefore likely to move GP. My mother, who died just before Christmas, had three GPs in the last stage of her life. She was at home. She then moved into a nursing home. She then had to move to another nursing home for more supportive care. She might have had four GPs had she moved to a hospice. Should Amendment 13 go through, I am concerned that that would have ruled her out from being able to make a decision, should she have desired it. I understand the intentions of the noble Lord, Lord Carlile, in raising this, but the practicalities for many at the end of their lives mean that I think it is unworkable.

On Amendment 20, I hear everything that the noble Baroness, Lady Finlay, says but my counter to that is that a patient will listen to advice and a doctor will give them a wide range of advice on the likely progression of their disease and, indeed, any comorbidities. This is also moving into the area of Amendment 21. The evidence of where assisted dying happens, particularly in America, is that the time between somebody starting to get the initial advice and going through the process and, having concluded that, then deciding that the time is right to take their life is the exact reason why we need six months and not six weeks. A patient should reflect and make sure that what they are doing is right for them and at the right time. Often people who support the principle of assisted dying are worried about those last few weeks and want to have the safety net of the decision having been made by the professionals in their back pocket, so to speak, so that should their life become intolerable they do not have to start the process at that point. That is why either three months or six weeks will mean that a patient will not get the timescale they need to consider appropriately with their family, friends and medical practitioner whether this is the right thing for them.

I am perplexed by Amendments 22 and 45, which imply that treatment that delays the progression of a terminal condition would be considered an available treatment for a dying person and would therefore exclude them from having an assisted death if they rejected such a treatment. If I have read this right, the noble Baroness, Lady Finlay, is arguing that it changes the fundamental right of a patient to refuse treatment because that treatment might increase the length of their life, even if the quality of that life were to be intolerable. For example, one reason that many people say that they would like assisted dying is that they do not want to go through another round of chemotherapy on a new drug, perhaps for the fourth or fifth time, and live with the very difficult consequences of that treatment. That is exactly what the Bill is about: patients coming to an informed decision about when they wish to end their life, even if another treatment is available, when medical practitioners have said that their condition is terminal.

[Baroness Finlay of Llandaff]

Before the noble Baroness finishes, will she acknowledge that, quite often, when patients do not undergo further intervention and further treatments they dramatically improve? Indeed, a very good study from America showed that where people had early palliative care, not only was their quality of life better but they lived longer. They were having fewer interventions, not more. The difficulty with all this is that conditions fluctuate. Patients at one point in time cannot believe that they could improve. It is often stated by patients, when their symptoms and their distress are under control, “I never believed I could feel this well again”. When they are in that trough, they are of course inclined to believe that it will go on for ever and that they will go on going downhill and therefore want to curtail their lives.

[Baroness Brinton]

I accept the noble Baroness’s premise that it is vital for medical practitioners to set things out. As I have said, the counterargument to that is that data from Oregon and some other states in America show that people do not make the decision and implement it immediately. There is always a timescale, because I believe that, intrinsically, most people really hope that things will improve.

When the measure has been used in America, it has usually been because there has been such a downturn, when medical practitioners have said to the patient that they cannot help them further. I understand that there will be some people for whom they are seriously concerned and may want to turn to it, but I would also think that a medical practitioner would ask them whether they are depressed at that particular moment and whether it is the right time to make that decision. This Bill allows the practitioner to say, “I don’t think you’re ready for that decision at this particular time”.

I want to say why I believe that the amendment in the name of the noble Baroness, Lady Finlay, is a tripwire. I have been on a series of drugs for my particular condition. My local clinical commissioning group insisted that I went on a drug knowing that it would not work particularly well for me, but would not allow me to have treatment afterwards if I did not have that drug. For six months, I had the drug and it is one of the reasons why I am in a wheelchair, because my condition deteriorated. My worry about the amendment is that it is such a tripwire and could be used to cause real distress to people who are quite clear that they do not want further treatment. To use that to prevent them getting any other treatment or making their own decision seems intrinsically wrong.

[Baroness Finlay of Llandaff]

My Lords—