Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am sorry to find myself intervening at this point but there is no bigger policy than the right to a fair trial. Of course that goes for complainants—and I agree with much of the thrust of what my noble and learned friend says—but there must also be justice for someone accused of any matter, but particularly such a serious one as a sexual offence. The example given by the noble and learned Lord, Lord Judge, warranted more of an answer, and one could conceive of others.

I say that while acknowledging that for decades, too much sexual history has been admitted; there is no doubt in my mind about that. That was why Section 41 had to be enacted in the first place. Scholars in this area will be able to look back at the Hansard of the passage of Section 41 and its various iterations at the time. The section was actually more tightly drafted to begin with but noble Lords in this place, including on the Benches behind me, came up with compelling exceptional circumstances where it would do a grave injustice to a defendant for startling similar fact-type evidence not to be admitted.

I understand that even since the passage and enactment of Section 41, a lot of complainants—and, with all respect to the noble Baroness, Lady Bennett, quite possibly women in particular—have felt that there has still not been enough sensitivity on the part of certain judges. However, it cannot be right that if I as a complainant, of whatever sex, assert that a particular type of sexual activity is something I would never and could never consent to and have never consented to, and yet I did the day before—how can it be anything but an injustice to the defendant for that not to be admitted? If I am a man and I say I have been raped by another man because I would never have consented to sex with a man, and yet there is ample evidence of a third party saying that there has been consensual sex —that cannot be fair to the man in the dock who says, “Yes, we had consensual sex” and then the complainant, because he is embarrassed due to his family, his faith or whatever reason, now says that it was non-consensual. That cannot be right.

I agree that we must do more so that juries, judges and indeed society do not assume that past sexual history is determinative of consent, but in my view to say that it is always absolutely irrelevant would not comply with Article 6 of the convention and therefore the Human Rights Act. I do not mean to be difficult but I could not possibly have potential injustices of that magnitude on my conscience, and I do not think this Committee could either.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, in replying, I preface my remarks by commenting on points made by noble Lords. The first was made by the noble Lord, Lord Thomas of Gresford, at the outset, while the Benches opposite were still thrashing out the batting order. If I may summarise the noble Lord’s position, I think it emphasised the importance of judicial discretion. A judge seized fully of the law and of the particular facts and circumstances applying to any case will most often be best placed to decide what should be done. I know that the noble Lord will recognise that my remarks cut both ways, and that he will hold me to them in the course of today’s debate. However, I fully accept what he had to say about the importance of judicial discretion.

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[Baroness Chakrabarti (Lab)]

My Lords, I support this whole group of amendments from my noble and learned friend and others. The reasons given by noble Lords are hugely compelling and, if anything, I think some noble Lords opposite are not enthusiastic enough. I hear the arguments about the public purse, but we would not be here if civil legal aid, in particular, had not been altogether obliterated and if there was not such a continuing injustice to bereaved families.

Frankly, I am not persuaded that there is something so awful about a greater equality of arms between hospital trusts and families who feel they have been sorely let down, or indeed between those families and a range of public authorities who can afford not competence but brilliance—they can afford the noble Lord, Lord Pannick, over there. I am not sure that “near competent” would be enough if you were faced with my friend the noble Lord, Lord Pannick. We need to have something like the intention behind this amendment; there should be some kind of equality of arms for these desperate people.

My heart broke when the noble Baroness, Lady Newlove, said that she has spoken to bereaved families who think of an inquest as an irritant. We should all be ashamed of that. Inquests, which are supposed to get to the bottom of things and be at least some kind of comfort to those families, should be the absolute opposite of an irritant.

I want to encourage my noble and learned friend not to let this go into the long grass, or to become an interesting probe that does not get anywhere because we are worried about the precise mechanism, because I am very concerned—we are still in the pandemic—about the coronavirus inquiry or inquiries that must come soon. There may not be another vehicle for amendments such as these, or legislation such as this, in time. It is incredibly important that, in a year or two, or whenever those inquiries happen, we have resolved this to some extent.

I fear we will not have resolved the general, dismal picture when it comes to civil legal aid, but at least we can come up with some kind of fix, however imperfect, to redress the balance of advice and representation for bereaved families. There will be a lot of very impoverished, vulnerable, bereaved families who will have nowhere near the access to private or public money. To be honest, whatever your ideological position, even the inequality between private corporations and bereaved families is bad enough, but surely, with public authorities and public money, there can be no excuse for such an imbalance in the use of that public money if we are really interested in the pursuit of justice.

[Lord Bach (Lab)]

My Lords, I also agree absolutely with the principles behind these amendments. It seems as though the Committee has been unanimously supportive up till now.

My question to the Minister is: why have we waited so long for something to happen in the area of inquests? I had hoped that there might be something in what has been rightly described as a Christmas tree Bill to help us along the way, but there is not. It has needed the amendments from my noble and learned friend Lord Falconer and others, including the noble Baroness, Lady Bennett, to raise this issue. I was privileged enough to chair a Fabian commission on legal aid, which reported more than four years ago. We considered this urgent—as I think the world did—then and for many years before. At one stage, Hillsborough was a classic example which aroused public interest in this issue.

Is there work being done at the moment within the Minister’s department to look urgently at this issue to see whether some solution cannot be found? Never mind the rest of civil legal aid—though my noble friend Lady Chakrabarti knows I agree with her absolutely on that—is there not something that can be done in this area as a matter of some urgency?

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[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for giving the Committee the benefit of his experience. Perhaps it is that experience which informed, or helped to inform, the remarks of the Chief Coroner, his honour Justice Thomas Teague, who has said publicly that one of his key objectives in his role is to ensure that the inquisitorial ethos of the inquest process is maintained. I hope that demonstrates a resolve within the system to address the failings or, at best, the over-eagerness, of counsel whose conduct the noble Lord described.

The amendment to increase the scope of legal aid at inquests would run counter to the approach of retaining their inquisitorial character. There is a risk that additional lawyers present at an inquest would not provide an overall improvement for the bereaved, that being something which ought to be a primary consideration, for the reasons expressed by my noble friend Lady Newlove. It is foreseeable—I think this is the point raised by my noble friend Lord Sandhurst—that the presence of additional lawyers could have the unintended consequence of turning an inquisitorial process into a complex exercise—

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. I do not doubt the sincerity of his concerns about trying to maintain informality in inquisitorial process. However, can it ever be conscionable for an inquest to involve a totally unrepresented core participant or bereaved family in circumstances where those whom the bereaved family suspect of being responsible for their loved one’s death are represented by professional lawyers, counsel and QCs? Can that basic inequality ever be conscionable, not least when we are dealing with lay people, with public concern and with public money that is all going to some parties and not to the bereaved?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Baroness for her intervention.

I was going on to say that, for bereaved families who need legal help, advice and assistance are always available under the legal aid scheme, subject to the means and merits test. This can help preparation—

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It is important that changing the law is in the interest of victims, as much as possible. They have suffered under this time limit for far too long and, as the former Victims’ Commissioner, I am tired of listening to these women—mostly women—who have gone for support but have been left out on a limb yet again. Leaders from across the violence against women sector contributed to this amendment. They have worked with victims and understand their real-life experiences and what law changes are needed to protect them, so I urge the Government to accept this amendment in full to reflect their work.

[Baroness Chakrabarti (Lab)]

My Lords, I support both noble Baronesses’ amendments and urge the Minister to accept them with alacrity or, if that is not possible, to work with the noble Baronesses and parliamentary counsel to achieve the compelling intentions behind both amendments.

The last thing my noble friend Lady Kennedy of Cradley needs to do is apologise to the Committee for not being a lawyer because, if I may say so, her speech in support of her amendment combined every ounce of detailed legal reasoning with a humanity of which any lawyer would be proud. The anomaly to which she refers goes back to the 1956 Act, which sat around on the statute book before the 1997 Labour Government conducted a sex offences review. Clearly, this anomaly has not been corrected.

This particular offence is very grave, and it should never have had a time limit. In criminal law, we understand why certain lesser offences should be time-limited. We would not want every ordinary common assault or minor act of shoplifting not to be subject to a time limit, with this sword of Damocles potentially hanging over young people for the rest of their lives. We understand the public policy reasons to have time limits, but I suggest that to have them for such grave offences is contrary to the rule of law and fundamental human rights. The anomaly to which my noble friend Lady Kennedy of Cradley spoke so well clearly puts this jurisdiction in violation of Article 3 of the European Convention on Human Rights, and probably Article 14, on account of the various types of discrimination that are also involved—between not just boys and girls at the time, but children and adults who did not consent. We rightly assume that young children do not have the capacity to consent.

My noble friend Lady Kennedy is so right that the rule against retrospectivity is a presumption against changing the substance of a criminal offence. She put the point well: it is not there to prevent us from dealing with procedural obstacles that are unconscionable, as she is attempting here. So I see no problem at all with retrospectivity, because it would be contrary to any notion of human rights or justice for a defendant charged today, tomorrow or as soon as this is enacted, to argue that he thought he was in the clear because enough years had passed since this terrible crime. Even with substantive changes to criminal law, there have been exceptions to the presumption against retroactivity, as we saw in the higher courts some years ago when the position on marital rape was changed. In one case, the defendant said, “This is not fair; I raped my wife when I thought I was allowed to.” In any event, this is a procedural matter that is standing in the way of dealing with a terrible anomaly and human rights violation that will be ongoing unless we deal with it.

As to Amendment 292C in the name of the noble Baroness, Lady Newlove, and her supporters, common assault can be a minor enough offence in certain contexts, such as the two young people who have a fight. It is fine to leave a short time limit for that, but domestic abuse is a very particular context in which the victim, whoever in the family they are, may well still be in the abusive situation within those two years. Rather than create a separate specific offence of common assault domestically, why not deal with it in the fairly neat way that the noble Baroness, Lady Newlove, has?

If the Minister or his colleagues disagree with me, no doubt they, with the aid of parliamentary counsel, can come up with the right fix. However, I say to this Committee that both of these matters need to be dealt with not in future but with this vehicle. Frankly, there are lots of things in this very large Bill that I do not agree with, but the Bill would do something good if these two matters were tackled immediately.

[Lord Russell of Liverpool (CB)]

My Lords, I was very happy to put my name to the amendment in the name of the noble Baroness, Lady Newlove, but first I will refer briefly to Amendment 277. The first thing I have to say is that, as any inhabitant of the West Midlands will know, the noble Baroness who moved the amendment is the noble Baroness, Lady Kennedy of Cradley. It is pronounced “Cradely”, not “Cradley”—it is a bit like “Chumley” instead of “Cholmondeley”.

My second point is this: the point made by the noble Baroness about the amount of time that sometimes elapses before individuals feel able to come forward is a moot one. Yesterday evening, I watched a new programme with my daughter. It was a documentary on a well-publicised streaming platform that begins with the letter “N”; I will not advertise it here. The programme is called “Procession” and deals with the way in which five men, all of whom were the victims of predatory Catholic clergy 30 to 40 years ago, have finally started being able to talk about what happened to them and come to terms with it. When something like that happens to one at that age—in this particular instance, these young men were even younger than the people we are talking about, aged between 13 and 16—it does not take a brilliant imagination to work out the sort of trauma that it must instil in people and how difficult it can be even to recognise it oneself, let alone bring oneself to talk to others about it. The noble Baroness’s point was well put; it will be hard to disagree with her.

On Amendment 292C, first, I put on record my thanks—indeed, our thanks—to Yvette Cooper, who has been pursuing this forensically in another place. Her latest attempt was made today when she asked the Home Secretary directly what her view on this is and whether anything will happen. I am not clear why we are debating this amendment at all because, on 5 July, Victoria Atkins, now in the Ministry of Justice but the then Home Office Minister, said this in the House of Commons when talking specifically about this same amendment:

“We take this issue very seriously, and I can assure the House that we will return with a proposal at a later stage. I certainly do not rule out an amendment, if appropriate, in the Lords. This must be looked into”.—[Official Report, Commons, 5/7/21; col. 572.]


There it is on the record.

As the noble Baroness said, the Home Office seems to have developed a sort of hotline with certain reporters in the BBC, where certain potential developments are briefed to the BBC, which puts them out fairly prominently. There is then complete radio silence; there is no acknowledgement by the Government or Home Office in any way, shape or form that a briefing took place, so we are left in a slight quandary as to whether it did or not. Unlike some noble Lords, those of us on the Cross Benches have a high enough regard for the BBC that we tend to believe it when it comes out with something like this, so I find this practice of putting these things out into the public domain then saying nothing about them somewhat unhelpful. Frankly, it is a sort of legislator abuse since many of us are trying to do our best in talking on behalf of others and it is confusing when the Government apparently say one thing to the media and then stand at the Dispatch Box and say something similar to what they have been saying, sometimes for many years. My noble friend Lady Newlove put the case clearly.

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[Lord Stewart of Dirleton (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy of Cradley, for her amendment.

For the victim of a crime to be told that the culprit cannot be prosecuted because a time limit has elapsed would doubtless be the cause of, at the very least, dissatisfaction and, at the very worst, anguish, and may very well lead to a loss of confidence in the criminal justice system. That is why, in respect of offences that are serious enough to be capable of being tried in the Crown Court, such time limits are virtually unknown in our system of criminal law in England and Wales. That differentiates England and Wales from many other jurisdictions, where time limits apply even to the most serious offences.

In England and Wales, the only exceptions are certain customs offences and offences of unlawful but consensual sexual intercourse, which I shall refer to as USI, with a girl aged 13 to 15 years committed before 1 May 2004, when the Sexual Offences Act 2003 came into force. The statute which that Act replaced, the 1956 Act—I extend apologies to the noble Lord, Lord Ponsonby of Shulbrede, for yet further legal history here—included a requirement that a prosecution for USI with a girl aged between 13 and 15 must be commenced within 12 months of the offence. That requirement was highly unusual even when it was enacted, and it was duly removed by the 2003 Act. I am sure that members of the Committee will echo the words of the noble and learned Baroness, Lady Hale, quoted by the noble Lord, Lord Thomas of Gresford, in relation to the 1956 Act.

That was an anomaly, as the noble Baroness, Lady Chakrabarti, and other noble Lords have described it in our discussion today. However, when it was removed in 2003 it was done so only prospectively, from the point when the Act came into force; in relation to offences that would fall to be charged under the 1956 Act, the time limit remained.

As your Lordships are aware and have heard again today, Parliament usually acts on the principle of non-retroactivity. Removing the time limit in circumstances where a prosecution was already time-barred, while it would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, would have exposed a person to criminal liability where there had been none before. Thus, Parliament’s aversion to retroactive legislation also applies to fundamental procedural preconditions for the bringing of charges against an individual. In relation to that—the point was canvassed by the noble Baroness, Lady Chakrabarti—I make reference to the case before the European Court of Human Rights called Antia and Khupenia v Georgia. Oh, for a Lord Russell of Georgia, that I might be corrected for any mispronunciation of the names of any plaintiffs in that matter.

For that reason, we do not consider it would be right to disregard the time limit in the increasingly rare cases in which it would apply. Since the changes in the 2003 Act were not made retrospective at that time, I submit that it would be difficult to justify now extending them to cases in which prosecution has been time-barred for at least the intervening 17 years—even allowing for the development in our understanding of sexual crime, as referred to by Members of this Committee who contributed to the debate.

I join the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Russell of Liverpool, and others in acknowledging the skill and humanity with which the noble Baroness, Lady Kennedy of Cradley, presented her amendment to the Committee. I am grateful to the noble Baroness for expressing a willingness to meet. I would be delighted to meet her at any time, but I think it would be more convenient for her, for the purposes purely of this amendment, to meet with my noble friend Lord Wolfson of Tredegar, the Minister in charge. I have taken steps by electronic means during the discussion in the Committee to arrange that my noble friend is made aware of her desire to meet, and an appointment will be fixed.

[Baroness Chakrabarti (Lab)]

Obviously I will go and read the Georgian case—I will call it “the Georgian case” so as not to repeat my earlier offence in relation to my noble friend—but, before any meeting, I will just say one thing. The Georgian case is now being cited as the reason why the Government will not move in my noble friend’s direction. I repeat my concern that we are currently in breach of the convention on human rights, not in relation to an Article 7 point but in relation to an Article 3 violation in relation to any woman, of whatever age, who now says “My statutory rapist will not be dealt with”. The Georgian case is up against cases such as X in the Netherlands and all the other cases where people were barred from getting redress in the criminal courts. That needs to be considered by the Minister as a senior law officer in Her Majesty’s Government.

If our positions were reversed and I had to face these two potential challenges in the European Court of Human Rights—a man who says “I had the opportunity to run Lord Pannick’s arguments about delay but none the less I was convicted of a historic statutory rape and I say that is a violation of my Article 7 rights” versus a woman who says “My rapist was not dealt with because of this time limitation”—I know which of those challenges I would rather defend as Her Majesty’s Government.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Chakrabarti Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Lord Sikka (Lab) [V]]

My Lords, it is my great honour and pleasure to join the debate. I wish to speak to Amendment 70, which seeks to constrain ministerial discretion to amend the list of relevant authorities.

We all know that, as time goes by, Ministers and Governments are tempted to expand the list of regulators. In this case, they would be tempted to expand the list of relevant authorities contained in the Bill. How would they do that? They could bring about primary legislation and allow Parliament sufficient time to scrutinise it, or they could have a rushed amendment through a statutory instrument. I do not favour the second choice.

I am a relative newcomer to the House, but a little amount of research has shown me that, in the last few years, the Government have made considerable use of statutory instruments to rush through legislation, often with little time or detailed parliamentary scrutiny. Statutory instruments can vary in length and breadth. As my noble friend Lord Cunningham of Felling noted on 10 January 2019 in the official record, one statutory instrument was 636 pages long and weighed 2.54 kilos.

The increased length of secondary legislation has not been accompanied by commensurate increase in the time and resources available to Parliament. The House of Lords Secondary Legislation Scrutiny Committee, in its report published on 20 February 2019, expressed considerable concern about the extensive use of secondary legislation and argued that it prevents Parliament effectively fulfilling its scrutiny function. The participants in such debates often receive little briefing to help them prepare for the debate beyond the standard explanatory memorandum provided with the draft secondary legislation. This is often at very short notice. The impact assessments which have accompanied some of these statutory instruments have been deficient.

On 22 May 2019, in the other place, the Shadow Chancellor pointed out, at Hansard col. 6, that statutory instruments often contain “deficiencies, ambiguities and errors” which cannot be properly scrutinised by a rushed passage through Parliament. The deficient parliamentary process in turn leads to more statutory instruments to correct previous errors, and thus an overload is created.

The use of statutory instruments diminishes parliamentary powers to scrutinise the Government and their legislation. During the debate on the present CHIS Bill, many noble Lords have indicated their unease at the daunting list of relevant authorities contained in the Bill and their possible scrutiny and public accountability. There have been concerns about the use of children and vulnerable people who may be used and then discarded, left alone with their families to face private nightmares, flashbacks and mental health problems. Noble Lords have raised concerns about the rule of law, the rights of negatively affected individuals, human rights, and much more. Any future amendment to the list of relevant authorities will raise the same issues again. Such matters cannot be dealt with through statutory instruments and minimal parliamentary debates. They require public consultation, primary legislation, full debate and scrutiny by Parliament, which forces Ministers to justify their policies and practices. For these reasons, I urge the House to support my amendment.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to follow all those who have spoken in this group. The size of the group and the number of speakers are indicative of the seriousness with which the length of the list of agencies is viewed by Members of the House. I thank the Minister for her fortitude and patience on this fourth day in Committee on this important Bill, and for her letter earlier today inviting Members of the House to further briefings.

I repeat that she has made the case for the value of putting this kind of policy on a statutory footing, and I do not think anyone is really disagreeing with that in principle. The problem is that the detail of the Bill, by accident or design, creates a real constitutional over- reach with a grave risk of what the noble Baroness, Lady McIntosh of Pickering, called unintentional consequences. That is not to impute the Government with bad motives in this respect but it is to be really concerned about the unintended consequences of the overreach contained in various components of the Bill, in part because it grafts a criminal conduct regime on to what was previously just a surveillance regime, with no extra safeguards to speak of in terms of authorisation; in part because it creates no statutory limits on the types of offences that might be authorised; and of course in part because of this very long list of agencies that do very different work.

Ultimately, I say that the real overreach which makes that combination of challenges particularly problematic is that what is at stake is that the status quo, whereby an authorisation leads to a public interest defence—in practice, almost a presumption that the person authorised would not be prosecuted—will be replaced with total landmark immunity, lawful for all purposes, civil and criminal. That is what makes the list of agencies and the ability to amend it by Henry VIII powers so very grave and ripe for abuse well into the future by a Government of any stripe, whether, as I say, by accident or design.

I ask the Minister to reflect on whether Amendment 63, which is my favourite in this group, can be considered for adoption by the Government. I ask the Government to reflect and adopt some constitutional humility rather than overreach, and to accept that we are genuinely trying to help to improve this legislation so that it can do what it needs to, which is to put criminal conduct on an open, accessible, primary legislative footing, but not create the graver dangers of abuse well into the future.

[Baroness Whitaker (Lab)]

My Lords, it is a great pleasure to follow my noble friend Lady Chakrabarti. I echo her thanks to the Minister for her offer of a briefing. I support Amendments 67 and 70. On Amendment 67, I have little to add to the clear exposition by the noble Baroness, Lady McIntosh of Pickering. This is a really intrusive provision, and the criterion of economic well-being, to which it seems to be related, is too loose to be safe as far as the liberty of a citizen goes. The authorising officer is not even a relevant professional; it is the chair of the Competition and Markets Authority.

On Amendment 70, my noble friend Lord Sikka has covered the ground most persuasively. I simply add my voice to the alarm, echoing the concerns of the noble Lord, Lord Hodgson of Astley Abbotts, that such procedures, which are important to democracy and to liberty, should be capable of amendment only by statutory instrument outside the full parliamentary powers of scrutiny.

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[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I am afraid I am going to disappoint a lot of noble Lords for whom I have huge respect, but I am afraid I do not think this Bill is necessary. That is not to say that the old system was good, because it clearly was not, but this Bill is worse. It could have been better, but it is not, so I would like to see it scrapped. However, in the meantime, our job in your Lordships’ House is to try to improve it and to get the Government to listen and understand why they are improvements.

In the previous group, the noble Baroness, Lady Chakrabarti, talked about overreach. That is part of the problem I have with this Bill, but it is not the only part. As some noble Lords have said, it is a dangerous world and we have to do what we can to keep people safe, which is all very true—and all the examples the Minister gave of how to use these powers are very reasonable. However, at some point, we have to ask ourselves, “What are we prepared to lose to keep ourselves completely safe?” In the previous group, the noble Baroness, Lady Whitaker, talked about liberty and democracy, and those are some of the things we are losing with this Bill. It is an erosion. Your Lordships’ House is very concerned about the erosion of democracy —about more and more powers going into statutory instruments.

The two amendments I have tabled require that unlawful conduct that goes beyond the criminal conduct authorisation, or that should not have been authorised in the first place, be reported to the police or a relevant oversight body—for example, the Independent Office for Police Conduct. My Amendments 75A and 75B reveal a deafening silence in the Bill about what happens when something goes wrong. I hope the Minister can explain that to us. What happens when an authorisation is granted that clearly should not have been? What happens if somebody goes beyond their authorisation and commits additional criminal offences? Amendment 75A would require that the authorising authority refer to the police any criminal conduct that was not authorised. Amendment 75B would require “unlawful or improperly granted” criminal conduct authorisations to be referred to the relevant oversight body—for example, the IOPC.

This is a gaping hole in the Bill: we are talking about state-authorised crime, and the police and other government authorities must not be complicit in criminality that goes beyond the legal authorisation in this Bill. Otherwise, it creates an additional quasi-authorisation where handlers can just sweep things under the carpet when it is dangerous to admit they have done them. They can pretend they did not happen. I hope the Minister will recognise these gaps in the Bill and work to address them on Report.

[Baroness Chakrabarti (Lab) [V]]

My Lords, once more, it is a pleasure to follow the noble Baroness, Lady Jones of Moulsecoomb, who has brought so much to the scrutiny of this Bill. What I want to say about her amendment is: why not? Why not improve the Bill by providing for greater clarity and specificity about the process that would be employed when things go wrong? In life, in all institutions, whatever the good intentions, sometimes things go wrong. It is our duty as legislators to be clear about what the process would be in those circumstances. Once more, her amendments and the review proposed in Amendment 79 by the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, are no-brainers. I look forward to hearing from the Minister about why there should not be greater clarity and specificity about safeguards.

It is also a pleasure to precede the noble Lord, Lord King. Since he is about to follow me, I want to address some remarks to him and the Minister. He spoke incredibly eloquently in the last group about the dangerous nature of our world in these times and incredibly passionately, and eloquently, once again, about all the terrible terrorist and serious criminal plots that have been foiled with the use of covert human intelligence sources—by undercover operatives and agents. With respect, however, the noble Lord, Lord King, seemed to conflate three very distinct propositions that we cannot afford to conflate when discussing this precise legislation.

The first is the concept of using covert human intelligence sources, which I think we all agree have to be used; it is the use of such sources that has presumably helped to foil all those terrible plots and keep us as safe as we can be. There is no such thing as a risk-free society but, of course, we want to be as safe as we can be. That is the first concept: using undercover operatives at all. We all agree that sometimes has to happen.

The second concept is authorising those undercover operatives to commit crimes. The noble Lord, Lord King of Bridgwater, will have to accept that is a further step and is not to be conflated with authorising an agent to go undercover. To authorise him or her to commit criminal offences is, perhaps, a necessary evil to keep their cover, but it is, none the less, a further evil that is a challenge to the rule of law. I agree with him that that already happens, and the suggestion is that should be put on a statutory footing. I will give him that.

However, the third concept that he completely elided with the previous two is that of granting an undercover agent of the state—who may be from the terrorist community but turned, or from the criminal community but supposedly turned—total immunity from civil liability and criminal prosecution. To send them into those situations with an advance immunity that even uniformed police officers and soldiers do not have is what is new in this legislation. That is why the legislation is causing such grave concern. It is not just the status quo on a statutory footing; it is going further. That is the challenge, not just to the rule of law but to the safety of our communities—that anybody, let alone a civilian who may be from the criminal fraternity, should be given this kind of licence or golden ticket to commit crime with immunity. I would be grateful to hear from the very distinguished noble Lord, Lord King, and the Minister on that. The status quo would just be that they had a public interest defence, which is a very strong presumption against prosecution. That is the current system; why should it not be replicated in this Bill?

[Lord King of Bridgwater (Con) [V]]

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, for drawing attention to the points I made, and I am sorry if I sounded too aggressive on some of them. The point I did not make, which I shall make now, is on how much crime is committed. One would expect that, in most cases, it would not be the commission of crime so much as association with people while they committed crimes, with the person in question not necessarily being directly involved but having some complicity, which is one of the problems.

The requirements, as I understand them, if they are in that situation and a criminal conduct authorisation is issued, are that it has to be proportionate, it may not be issued if what is sought to be achieved can be done in another way, and it has to be part of an effort to prevent more serious criminality. Those three conditions are perhaps not mentioned very much but are important.

I have left out some issues that I might have discussed. We have just talked about possibly leaving the Department of Health and Social Care out of the Bill. Think of this moment when organised crime, throughout the world, is seeing how it can get into the vaccines business in one way or another. The challenge that that will pose will feature in our news broadcasts and papers in the days ahead. It will obviously be a big issue. One recalls that the NHS was practically brought to a grinding halt from its systems being hacked and disrupted.

There is this, as well, if it is not too dramatic. At the time of Brexit, when we may be moving towards no deal, there is an idea to take from HMRC its ability to keep every possible assistance. In trying to deal with some of the problems it will have, it will need all the help it can get.

My concern about these amendments, and referral to the police or judges to overview the operations of CCAs, is that a clear structure is set up. The Investigatory Powers Commissioner is a very senior judge and the judicial commissioners are very senior. My concern all the way along is that nobody has challenged how vital covert intelligence sources can be, in a range of different fields. The question is whether we can still keep those covert sources coming. The more we expand the range of people who have access to that information, the bigger the danger of leaks, and then there will be fewer sources available in the future. That is why I think the structure set up of the Investigatory Powers Commissioner and his judicial commissioners, with a tribunal and an annual report to Parliament on its operations, has important safeguards. Going much further than that starts to undermine the security of the information and imperil the safety of some brave people, who are giving evidence to help keep our country safe, in a range of different fields.

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[The Deputy Speaker (Lord Rogan) (UUP)]

The noble and learned Lord, Lord Thomas, has withdrawn, so I call the noble Baroness, Lady Chakrabarti.

[Baroness Chakrabarti (Lab) [V]]

My Lords, not for the first time in consideration of this Bill in Committee, the noble Lord, Lord Hodgson of Ashley Abbots, comes to your Lordships’ House with an excellent amendment, a very good idea and an even better speech, which I cannot improve on. Transparency does influence conduct, and the information that he suggests ought to be included in reports speaks to common sense. We ought to know on a regular basis the number and nature of criminal conduct authorisations issued under the new legislation, the operational benefits that have been obtained from those authorisations and, crucially, the kind of damage to property and people—the incidental harm—that has come about as a result of those criminal conduct authorisations.

I do not want to labour the point—it has been a long Committee—but I want to have one final attempt at putting a question to the Minister to which I do not think I have yet heard the answer. This is my last opportunity to put this in Committee before we go forward to Report.

Why is it necessary to go further than the status quo in the scheme for this legislation? Why cannot undercover operatives, whether they are highly trained police or MI5 officers, or whether they are—and perhaps they are in greater number—members of the civilian community, including the criminal community, just be subject to the current law, which is that when they are authorised to do this work, including with criminal conduct, they will know that their conduct will be second-guessed after the fact? They currently have the ultimate incentive —and we have the ultimate safeguard—to behave proportionately and as well as possible, which is that they might, just possibly, if they over-step the mark, be subject to legal sanction after the event. That is the law that applies to uniformed police officers and people driving police cars and ambulances at high speed, with a very strong public interest defence. It is probably a presumption against prosecution, but it is that tiny risk of being judged after the fact that makes most people behave well according to the criminal law. Why should that be replaced with a total, advance and blanket immunity from prosecution and civil liability? Why quite go so far and therefore cause some of the greatest concerns that have been excited by this legislation?

I hope that the Minister will not mind me putting that fundamental, simple question one more time. I look forward to her answer, and indeed to our further work at the next stage of the Bill’s passage.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Chakrabarti Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Lord Cormack (Con)]

My Lords, I rather wish this Bill were called the “Authorised Criminal Conduct Bill”. I find it very difficult to get my mouth around this very cumbersome title, and I utterly loathe the term “CHIS”. I wonder if my noble and learned friend who will reply could earn himself undying gratitude from those of us who care about the English language by coming up with something else.

These are probing amendments, and they seek essentially one thing: clarity. The noble Baroness, Lady Hamwee, made that very plain in her admirably brief introduction to this short debate. Clarity is of such importance when we are swimming in such murky waters and dealing with such very questionable matters.

The noble Lord, Lord Anderson of Ipswich, said that he felt the matter of retrospection had probably been dealt with by the remarks of, I think, the Solicitor-General in another place. But there is still a certain lurking doubt, and it would therefore be good to put something on the face of the Bill while it is in your Lordships’ House to make it plain beyond any peradventure that retrospective authorisation is not possible.

I do not want to detain the House any longer, but clarity, I would emphasise, is what we are after here.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be very brief, because others have put the point so well and also because of the next debate to follow. I would simply say that this degree of micro-precision becomes particularly important because the Bill goes further than the status quo and creates these advanced criminal and civil immunities. I will leave it at that, because I think we are all really quite keen to hear the Minister’s response.

[Lord Rosser (Lab) [V]]

As drafted, the Bill refers to criminal conduct as conduct

“in the course of, or otherwise in connection with”

the conduct of a covert human intelligence source, and as

“conduct by or in relation to the person”

who is specified as the covert human intelligence source. As has been said, the amendments would establish that criminal conduct is conduct by the covert human intelligence source in the absence of any explanation as to why the additional words to which I have referred are needed, and what the consequences would be, and for whom, if they were not in the Bill. A further amendment in this group also puts on the face of the Bill that a criminal conduct authorisation cannot retrospectively give clearance for behaviour that has already happened before the date the authorisation is given.

The Joint Committee on Human Rights also raised these issues in its report on the Bill when it said that the definition of what amounts to “criminal conduct” for the purpose of an authorisation is wider than simply criminal activity by a covert human intelligence source, and referred to the wording which the amendments in this group would delete. The only explanation for this which the Joint Committee on Human Rights could find was in the draft code of practice, which states that

“a criminal conduct authorisation may authorise conduct by someone else ‘in relation to’ a

covert human intelligence source,

“namely those within a public authority that are involved in or affected by the authorisation.”

No doubt the Government will wish to respond in some detail setting out why the words “in connection with” and “in relation to” are essential, what exactly they mean and, giving examples, explaining why it is considered necessary to enable a public authority to authorise criminal conduct by someone other than the covert human intelligence source, which some might feel is rather at odds with the title of the Bill.

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Moved by

[Baroness Chakrabarti]

3: Clause 1, page 1, leave out line 17
Member’s explanatory statement
This amendment is linked to the amendment in name of Baroness Chakrabarti at page 1, line 19.

[Baroness Chakrabarti (Lab) [V]]

My Lords, Amendment 3 is linked to Amendment 5, which is at the nub of all this. I am supported in that amendment by the noble Lord, Lord Paddick, and the noble Baronesses, Lady Ritchie of Downpatrick and Lady Warsi.

Over many years, including in recent days, when the devil is in the detail in general and when the rule of law is in jeopardy in particular, your Lordships’ House really comes into its own. This is necessarily the case when, as with this Bill, the proceedings in the other place were so truncated and when such a complex but vital area of policy was not foreshadowed in an election manifesto. I say that to emphasise the importance of your Lordships’ consideration of the detail of the Bill.

I will begin with two preliminary points that are vital background to Amendment 5, in particular. To head off the noble Lord, Lord Cormack, at the pass, I will try to use the phrase “undercover operative” instead of “covert human intelligence source”, or CHIS. I cannot say “undercover officer”, because of course, so many of the people involved in this activity are not officers of any state agency. They are not James Bond or even Constable Bond, they are members of the community, including the criminal community, as we know.

First, I accept that undercover operatives must sometimes commit crimes in the public interest. It is unsavoury, but it is vital sometimes to keeping their cover or just operating. As we heard from the Minister a few moments ago, that includes the offence of being a member of a banned organisation, but might also include being in possession of banned items in such an organisation or in a criminal fraternity of some kind, and the crimes might go further still into minor property offences, and, who knows—subject to the public interest, in a particular, very dangerous but potentially life-saving operation. I want to put that on the record at the outset.

Secondly, I must accept that current litigation still before the courts that challenges the legal foundation of present arrangements whereby undercover operatives will sometimes be authorised and guided in crimes connected with their work potentially risks the viability of current arrangements in a way that would not be satisfactory to me or anyone trying to discharge the burden of government.

This amendment has been drafted with the acceptance that the Bill is necessary to create a clearer statutory foundation than is currently the case, but there is a very important difference between regularising current arrangements—necessary and even vital evils in the public interest—and, on the other hand, violation of the rule of law. It can be a very fine line, and it is that line that I attempt to correct and safeguard with Amendment 5.

Amendment 5 removes the current “lawful for all purposes” civil and criminal immunity used in the Regulation of Investigatory Powers Act and is completely appropriate in that place for the purposes of surveillance; in other words, a necessary and proportionate interference with people’s privacy. It may be perfectly appropriate for surveillance, subject to appropriate checks and balances, but not, I would argue, for other criminal offences. They may be significant property offences or even offences against the person, or other serious interferences with, if not violations of, people’s rights and freedoms. That is why “lawful for all purposes” is not appropriate. We could even be getting into physical harm to people, which does not happen in the case of privacy intrusion or surveillance by themselves.

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[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord clearly heard what I said about the view that we have lost intelligence and failed to recruit CHIS, and that failing to introduce a power in these terms is likely to impair the recruitment and retention of CHIS. I do not have to hand the figures that he seeks, but I undertake to write to him.

On the “brown envelope” scenario, when it is drawn to the attention of a presiding judge passing sentence that a member of a criminal organisation—a gang, a conspiracy or whatever—has actively assisted the police and the investigating authorities in bringing the prosecution, it is important that we maintain a proper boundary. A person becoming aware that the police are aware of criminal activity, who elects to go to the police in their own interests in order to assist them, and by so doing earns a degree of mitigation, is very different from a person becoming a CHIS in the course of criminal activity, or one who is associated with criminal organisations for that direct and specific purpose. The noble Lord shakes his head, but I insist that we must maintain boundaries. A person who, during or prior to a prosecution, assists the prosecution and the police, is different from a person inserted into an organisation with the purpose of deriving intelligence about its activities.

The noble Lord, Lord Thomas of Gresford, spoke about the appointment of a committee to look into these matters; as he said himself, this was a matter which occurred to him shortly before this debate. I will look into the implications and communicate further with him.

[Baroness Chakrabarti (Lab) [V]]

This Committee has made it a privilege to be a Member of your Lordships’ House, which today I have heard at its best, expressing with great care and detail the sheer strength, depth and wisdom of noble Lords’ concerns about the Bill in its current form. Many other noble Lords have similar concerns, but for various reasons were unable to participate. The noble Baroness, Lady Ritchie, rightly pointed up the Northern Ireland experience, and with all matters of human rights and the rule of law, we ignore that voice and that particular experience at our peril.

The noble Baroness, Lady Warsi, rightly pointed out that supporters of these amendments come from all sides of the House. That should give the Minister pause for thought. So much has been said in these polarised times in our nations about extremism versus moderation. Sometimes I do not even know what these words mean any more, save that the ultimate moderation that holds our nations together is the rule of law. My friend—if not my noble friend—the noble Baroness, Lady Warsi, rightly describes this as a very conservative principle and tradition. However, equally for liberals and progressives, there can be no human rights or even democracy without the preservation of the rule of law.

The noble Lord, Lord Thomas of Gresford, pointed to our legal traditions, but also made a particular point about successful work of his own at the Bar deconstructing the mens rea of someone who had no criminal intent because they were acting in the public interest; that ties in with my amendment very well indeed. The noble Baroness, Lady Jones of Moulsecoomb, may have used colourful language which offended the Minister, but it is how many members of the public will feel about what is being provided for here without the safeguard of the amendments that I have put forward.

My noble friend Lady Bryan was right to point up the excellent briefing from Justice. I neglected to declare an interest as a member of Justice, but I hope that noble Lords will forgive me, because I suspect that many of them, particularly noble and learned Lords, are members of that wonderful law reform organisation. My noble friend Lady Bryan made the crucial point: where are the hard cases of undercover operatives who are just doing their work and doing no more than necessary being prosecuted by rogue prosecutors against the public interest and common sense, because we have not seen them?

Of course, there is only one thing better than one Lord Thomas, and that is two Lords Thomas contributing so eloquently to a debate, particularly when one of them is the former Lord Chief Justice of England and Wales. I will let that hang in the air for a moment, because I know that the Minister will not have ignored that very powerful intervention from the noble and learned Lord, Lord Thomas of Cwmgiedd. What is wrong with the current law? Where is the evidence? How can we do our duty without the ability to examine the case for moving from the status quo that has served our nations so well in this difficult and grey area and held the ring for so long?

My noble friend Lord Hendy was absolutely right to bring up the ongoing Mitting inquiry, in which he represents some of those who have been subject to abuse of power. There have been abuses under the current law; how much greater will the possibility of abuse be if we cross this Rubicon into granting blanket advance immunities to so many agents of the state, including from the criminal fraternity?

What of the victims, as my noble friend Lady Blower so rightly pointed out? She reminded us of perhaps the greatest jurist of my lifetime: Lord Bingham, who articulated equality before the law as a vital rule of law principle. She also reminded us that Article 13 of the ECHR requires an “effective remedy” for victims of crime. I know that the Minister attempted to address this, but how can “lawful for all purposes” possibly square with giving an appropriate remedy to a victim of a crime that is suddenly rendered no longer a crime?

The noble Lord, Lord Paddick, has been a police officer for 30 years, and, as my noble and learned friend Lord Falconer suggested, that gives his practical experience in the field particular weight. I imagine that noble Lords listening and those who will read his intervention tomorrow will be very careful to consider his wholesale dismantling of the argument against maintaining the so-called tension, which operates as a safeguard against the abuse of power. It is good for operating on the mind and ethical framework of any CHIS or undercover operative, particularly one who is not even an officer of the state but is a mere agent and, I repeat, quite possibly from the criminal fraternity.

My noble and learned friend Lord Falconer also rightly took us to the very powerful report from the Joint Committee on Human Rights, which expresses so many concerns about the Bill in its current form. There is so much potential for violations of human rights and abuse if the Bill is unamended. I have tried to engage constructively by way of this amendment, which does minimal violation to the scheme of the Bill and addresses the problem posed by the ongoing litigation but, none the less, preserves the status quo that has served us so well and is about preserving the rule of law.

It is said to be a breach of the rules of theatre to break the fourth wall, but, for all its beauty and glory, your Lordships’ House is not a theatre; it is a legislature. I want to be fair to the Minister, who is new to your Lordships’ House and to this Bill and who cannot possibly have been involved in the earlier stages of the policy formulation that led to its precise drafting. It is very difficult to be in the Chamber for one of these Committees, to listen to all the arguments—particularly when they are so powerful and come from all sides—and to respond on the spot, on your feet and immediately, as he has had to do. None the less, I hope that he will listen to the sheer breadth and depth of concern, which might well be addressed by way of my amendments or something like them.

The noble and learned Lord takes issue with my analogy about other citizens and passers-by. He says that these agents of the state are not mere passers-by, but that argument cuts both ways. The mere passer-by is mostly not from the criminal fraternity and normally does not have a vested interest, of whatever kind, in getting a particular outcome, quite possibly, even as an agent provocateur, as we have seen in the past. Why should an undercover operative, a CHIS, quite possibly a civilian or even someone from the criminal fraternity, have a protection in law that even a uniformed police officer does not have when he or she puts themselves in harm’s way on a daily basis? The so-called tension is a healthy one, and it should not be resolved by way of the absolute immunity that is the ultimate evil in this Bill.

Finally, I am beginning to suspect that the “lawful for all purposes” formulation was not adopted with a great deal of deliberation. I am beginning to suspect that it was used because it was used before and is in the framework of RIPA, where it is, pretty much, appropriate because that is about surveillance. As the Minister has said, it has been used in certain narrow confines before, but this Bill authorises unlimited criminal conduct and, potentially, very serious crimes, as the Joint Committee on Human Rights has pointed out. Therefore, a “lawful for all purposes” advance immunity that is appropriate for bugging, surveillance and minor criminal damage is simply not acceptable or conscionable in this case.

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[Lord Anderson of Ipswich (CB) [V]]

My Lords, this group of amendments focuses on compensation for crimes committed pursuant to a criminal conduct authorisation. I suggest that the applicable principles should be these.

First, it would be unfair to expose undercover operatives to personal civil liability for doing something they were expressly authorised by a public authority to do, just as it is generally considered unfair and contrary to the public interest to prosecute them for that. This, despite my profound respect for the noble Lord, Lord Paddick, and for all his police experience is my problem with Amendment 6.

Secondly, some means of compensation should exist for injury or loss caused by a crime committed pursuant to a criminal conduct authorisation: not from the person who perpetrated the crime but from the authority which authorised it, or from the state more generally. So what should that means of compensation be?

The first and obvious route, already referred to by the noble and learned Lord, Lord Falconer of Thoroton —but not, I think, responded to by the Minister—is via the Criminal Injuries Compensation Authority and its equivalent in Northern Ireland. That is not expressly referred to in these amendments, but can the Minister confirm whether it is available to the victims of crime committed pursuant to criminal conduct authorisations under the scheme of the Bill and if not, why not?

The second possible route to compensation, suggested by Amendment 8, is for the CHIS who perpetrates a crime to be capable of being sued and then, if necessary, indemnified by the authorising authority. I see the attraction of that, but of course criminals are rarely perceived as having deep enough pockets to be worth suing. I can also see considerable practical difficulties in keeping their status as a CHIS secret once the indemnity comes into play. It was interesting to hear from the noble Baroness, Lady Massey of Darwen, that this amendment is based on an Australian model. It would be interesting to know how much that model is actually used.

The third possible route is by proceeding directly against the authorising authority in the Investigatory Powers Tribunal. Amendment 71 is designed to give effect to that, but I wonder whether it actually adds to what is already in RIPA. A new subsection (5)(g) is proposed for its Section 65, so as to include conduct authorised under new Section 29B. But new Section 29B will be in Part II of RIPA, which is already specified in Section 65(5)(d).

How would a person be made aware of the possibility of proceedings in the IPT? The Investigatory Powers Act 2016 already requires IPCO not only to inform a person of a serious error, where it is in the public interest to do so, but, by Section 231(6), to inform them of any right they may have to apply to the IPT. By Section 232, IPCO is required to give any necessary assistance to the IPT. So far so good, although I wonder how often, as a matter of practice, it will be considered by a judicial commissioner to be in the public interest to inform a person of a serious error of this kind. To do so will often risk blowing the cover of the CHIS, notwithstanding the fact that the IPT proceedings themselves are very secure.

In short, it seems to me that the Amendment 8 route could be created, and that the Amendment 71 route may already exist, but that both are likely to be hamstrung in practice by the requirements of keeping secret the existence and identity of a CHIS. That rather points up the advantages of ensuring that the Criminal Injuries Compensation Authority is available to the victims of crimes committed by undercover operatives in the same way as it is to the victims of other crimes. I hope the Minister will feel able to comment.

Finally and more generally, I make a procedural suggestion, following the proposal of the noble and learned Lord, Lord Thomas of Cwmgiedd, that a special committee be appointed to take evidence from the police and MI5 on matters considered too sensitive, perhaps, for the ears of the rest of us. I know the Minister is thinking about that proposal, but should it not meet with favour, an alternative might be to task the Independent Reviewer of Terrorism Legislation with investigating the position and reporting back. The current reviewer, Jonathan Hall QC, is highly expert in all matters relating to police law, not only counter- terrorism. He is widely respected for his impartiality and has, of course, the very highest security clearance. I recall, as independent reviewer, performing a similar function when the Bill that became the Justice and Security Act 2013 was going through Parliament, and though I cannot commit the independent reviewer, I should be happy to share that experience if others see merit in the idea.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I can be brief on this group—because I gave my views on the importance of removing both civil and criminal immunity in the earlier discussion—save to take the opportunity to wholly welcome the cogent, powerful and accessible report of the Joint Committee on Human Rights, and to congratulate my noble friends Lady Massey and Lord Dubs, as well as all the other members of that committee. The committee has been one of the greatest success stories coming from the Human Rights Act. Some once thought the Act would be just a recipe for litigation, and human rights would be just a box of lawyers’ tricks to wield in court, but the Joint Committee on Human Rights has been the missing ingredient that allows for human rights principles to be included in the consideration of legislation before it is even passed. I say this knowing that that the Minister will take that report incredibly seriously when he considers his approach to the next stage of the Bill.

On civil immunity, it is worth saying that, for a lot of victims, this is as important as criminal immunity. For a lot of innocent third parties, who may have lost property or even suffered grave injuries through no fault of their own, it is very important that there is the possibility of compensation. It may not be enough for it to be left to the CICA, although I will be interested in what the Minister advises. It would seem completely unconscionable for a state agent to be authorised to commit a crime, for an innocent citizen to suffer grave damage to property or person and for there to be no mechanism for them to have compensation. Further, the civil courts, when combined with investigative journalism, have been a place where a great many scandals and human rights violations of recent decades have been exposed, so “lawful for all purposes” is just as potentially worrying in the civil context as it is in relation to the criminal law.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is an interesting pair of amendments, because they go to the territorial extent of the Bill. Does the Bill seek to authorise state agents to commit crimes in foreign countries? That opens a whole legal and diplomatic mess. What happens if somebody is given permission to commit crimes abroad but is then caught and prosecuted in that foreign jurisdiction? Can the UK Government really seek some sort of immunity for their agents in that sort of situation? It raises the further question: to what extent do the Government think this recreates the status quo under the current system? Do they claim to have the ability to authorise crimes by their agents in other countries at the moment?

[Baroness Chakrabarti (Lab) [V]]

The noble Baroness, Lady Ritchie, points out an enormous sensitivity, in relation not just to extraterritoriality but to immunity, in the context of Northern Ireland in particular. Noble Lords are particularly jealous in their protection of the Good Friday agreement, as we have seen in other debates, and they should be no less jealous of that precious peace in their consideration of this Bill. As we have just heard from the noble Baroness, Lady Jones, it will not just be a problem in relation to the peace in Northern Ireland but will be a significant issue for our diplomatic relations with all sorts of countries and our status in the world, at a particularly sensitive moment for that status, if the Minister is not able to give some reassurance in her reply.

I have no doubt that for ever, a tight group of agents of the state probably have been informally or rather more formally authorised in the context of espionage work—perhaps vital espionage work—to sometimes commit criminal offences. But again, it creates a much bigger problem, including for diplomatic relations, if we are purporting to give immunity not just to direct officers, employees or trained personnel but to “civilians” around the world of necessarily dubious genesis. So I look forward to the reply from the noble Baroness, Lady Williams.

Legal Services Act 2007 (Chartered Institute of Legal Executives) (Appeals from Licensing Authority Decisions) Order 2020

Baroness Chakrabarti Excerpts

Monday 9th March 2020 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I support the order. I declare an interest in that a close family member is a judge in the First-tier Tribunal—but not, I believe, in the General Regulatory Chamber.

I have been a strong supporter of CILEx from its inception. Indeed, I addressed some of its early conferences due to, as I mentioned in relation to the previous order, my experience 50 years ago of the integrity and probity of legal executives who needed a body to represent their interests in the way that that has happened. I am delighted to see that it has been given this particular power. The strange thing is that there was a temporary appeals provision with a panel set up by CILEx itself; clearly that was unsatisfactory. Far better that it should go through the tribunals system. What are the fees of the tribunal likely to be? Will they be more expensive than the present appeals system, unsatisfactory as it is?

[Baroness Chakrabarti (Lab)]

My Lords, again I will be completely uncontroversial, and I can be very succinct: the First-tier Tribunal is undoubtedly more appropriate than the interim arrangement.

[Lord Keen of Elie]

I thank noble Lords for their contributions. I agree with the observations of the noble Lord as to the importance of CILEx as an institution. I recently met with its representatives, as I do on a regular basis; they bring to regulation a degree of innovation and forward thinking that is to be welcomed.

On the potential cost, fees will be set by the Courts Service. Generally, there are only about 10 of these appeals each year. I do not anticipate the level of fees being an inhibitor to the discharge of these functions.

Legal Services Act 2007 (Approved Regulator) Order 2020

Baroness Chakrabarti Excerpts

Monday 9th March 2020 Grand Committee

I have only one question. It was thought the right policy that oaths should not be administered by the solicitor, or commissioner for oaths, who was handling the case, but should be taken elsewhere to another solicitor. If he did not give the articled clerk the shillings and the guineas, he did not get the work, because the articled clerk knew where to go. Is that still going on, 50 years later? Is that intended to be the practice when it comes to dealing with chartered accountants?

[Baroness Chakrabarti (Lab)]

My Lords, I agree that this is straightforward, uncontroversial and a perfectly appropriate exercise of the relevant power. I am afraid that I have no anecdotes, questions, guineas or shillings, or any other contribution.

[Lord Keen of Elie]

I am most obliged to noble Lords, if only for their brevity. I am not certain what happened to the shilling or the guinea, but I understand that the practice remains that, where the oath is to be taken, it is taken by a lawyer in a different firm or entity.

The noble Lord referred to the administration of oaths by accountants. That is not necessarily the case. The institute will be the regulator, but it will regulate, in due course, alternative business structures that will include lawyers. Generally speaking, it is to enable those lawyers to be engaged in this reserved activity that this order is being made.

Divorce, Dissolution and Separation Bill [HL]

Baroness Chakrabarti Excerpts

Committee stage & Committee: 1st sitting (Hansard - continued) & Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 3rd March 2020 Lords Chamber

Moved by

[Baroness Chakrabarti]

6: Clause 1, page 2, leave out lines 10 to 12
Member’s explanatory statement
Omits new section 1(6) of the Matrimonial Causes Act 1973, as recommended by the Delegated Powers and Regulatory Reform Committee.

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[Baroness Chakrabarti (Lab)]

My Lords, in moving Amendment 6 I shall speak also to Amendment 16, both amendments having been recommended by the Delegated Powers and Regulatory Reform Committee. The reasons set out in the DPRRC report are, in a nutshell, that the matters dealt with under the Henry VIII powers in the Bill are too central to its purpose and therefore not appropriate for the procedure, at least not as currently set out in the Bill. I hope that, in the light of that report, the Minister will consider either accepting my amendments or, perhaps, subjecting these powers to the affirmative procedure.

[Baroness Meacher (CB)]

My Lords, I rise to speak to Amendment 6, proposed by the noble Baroness, Lady Chakrabarti. I apologise to the noble Baroness that I did not get a chance to have a chat with her before this evening, as I had originally added my name to the amendment. As the noble Baroness explained, the Bill as it stands proposes minimum periods of 20 weeks and six weeks for the two stages of divorce and dissolution proceedings. I thank the Minister for the very helpful meeting we had last Wednesday, where he clarified that a statutory instrument to shorten the period for divorces would indeed be subject to the affirmative procedure. The question has been whether there is any reason at all why the Lord Chancellor should be given a Henry VIII power to reduce the length of either of the two periods through delegated legislation.

The Bill is very clear that, in a particular case, an application may be made to the court to shorten the period for the proceedings. For example, if one of the partners is dying and wants to sort out their affairs before they die, it would of course be perfectly reasonable for them to make an application to the court to reduce the period required. Also, if there is a need to protect an abused spouse, time may be of the essence. However, to shorten the minimum period for divorce or dissolution in all cases is quite another matter. We have to think about that.

The then Minister for Justice, Paul Maynard MP, emphasised in the Commons Public Bill Committee on 2 July 2019:

“The 20 week period is a key element in a reformed legal process.”


There is currently no minimum period, and with respect to the second stage, the Minister said that part of the objective was

“to improve the financial arrangements. People may wish to delay a little longer until such a point. It is not a maximum period; it is a minimum, and the process might well take longer.”—[Official Report, Commons, Public Bill Committee, 2/7/19; col.35.]

As the Minister knows, I expressed my concern at Second Reading about a future Lord Chancellor having the power to allow for a more rushed process, without proper parliamentary scrutiny. Certainly, the decision to apply the affirmative procedure to any statutory instrument reducing the time period is, in my view, an important improvement. The Government argued in a memorandum that the Lord Chancellor

“will be able to make adjustments to the time periods, for example, if policy considerations meant that it would be appropriate to shorten one or both of the time periods.”

I do not want to be difficult, but when I asked the Minister during his presentation to the Cross-Bench meeting what policy considerations might justify reducing the timeframe for divorces in a general sense, neither he nor the civil servants present could provide an answer. However, during the meeting last Wednesday, the noble and learned Lord, Lord Mackay of Clashfern, came—probably quite inadvertently—to the rescue and suggested a justification for the use of this power. The noble and learned Lord suggested that if, for example, there were repeated applications to the court to reduce the length of time from 26 weeks, then a more general reduction in the minimum period would be helpful. Repeated applications to the court are unhelpful to the people immediately affected; I imagine there are delays and all sorts of things, including perhaps costs.

This sounds a very sensible justification for the Henry VIII power. The concern of the Delegated Powers Committee, on which I sit, had been that Ministers at that point had offered no rationale for the Henry VIII power. Now, thanks to the noble and learned Lord, Lord Mackay, to whom I must give due credit, we have such a rationale, as well as confirmation from the Minister that the affirmative procedure would be applicable. I am therefore personally satisfied that this matter has been acceptably resolved—I had intended to say “satisfactorily resolved”, but it has certainly at least been acceptably resolved. However, I must emphasise that I am not, of course, speaking for the Delegated Powers Committee as a whole; I am speaking purely as one member.

--- Later in debate ---

[Baroness Chakrabarti]

My Lords, I am hugely grateful to the Minister and to the noble Baroness, Lady Meacher, who does not speak for the committee but is clearly a very important member of that committee. In the light of the assurances given, I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Divorce, Dissolution and Separation Bill [HL]

Baroness Chakrabarti Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I support the amendment moved by the noble Lord, Lord McColl, and the remarks of my noble friend Lord Morrow.

I have never been a judge to grant people a divorce, but I have been a minister for over 50 years, marrying people and endeavouring to keep families together. I am delighted that, over those years, people have come to me with the intention of divorce but made another decision on reflection. To this day, they are very happy families. After reflection, speaking to me and receiving advice, they were able to make another decision and heal the breach in the relationship.

The Government were elected on a promise to strengthen families and acknowledge that a strong society needs strong families. To the best of my knowledge, there was no mention in the manifesto of the no-fault divorce. I believe that time for reflection would be helpful. I would like this Committee and the Government to consider the amendment that the noble Lord, Lord McColl, has brought before us.

[Baroness Chakrabarti (Lab)]

My Lords, I agree with the noble and learned Lord, Lord Mackay, not for the first time. I particularly want to associate myself with the very humble reflections of the noble Baroness, Lady Burt, and the unparalleled expertise of the noble Baroness, Lady Shackleton, and the noble and learned Baroness, Lady Butler-Sloss. I do not want to repeat what has been said. However, I might shorten what I say about other amendments if I make a few comments now, because I think the noble and learned Baroness, Lady Butler-Sloss, is broadly right: this is a good Bill that will generally not benefit from much amendment, subject to concerns of the Delegated Powers Committee.

As was rehearsed by many in your Lordships’ House at Second Reading, divorce is not generally a happy matter. I suspect that it is mostly in Hollywood cinema that people celebrate and have parties upon divorce. I have heard of such things, but they are perhaps the exception and not the rule. This is therefore an unhappy subject and an unhappy moment in lots of people’s lives—as it happens, a very significant portion of the population. For some people, it is a story of liberation after trauma; for others, it will be a matter of loss and trauma. It is not a happy matter. The law should be about legal protection and not legal fiction.

I understand the sentiments of noble Lords who would like people to reflect before they put themselves through this trauma. But I would have more in common with that sentiment if we were seeking to provide counselling for every adolescent and adult in the country, or, indeed, if we were seeking to reinstate the availability of legal aid for people contemplating and going through divorce. In my experience, good family lawyers will always go through a process of reflection with their clients before advising them to go through this traumatic process. Those matters, unfortunately, are beyond the scope of the Bill—I know this because I had a go. I am told by the Public Bill Office that reinstating legal aid for people with contested contact matters is also unfortunately not in the Bill.

In the future, I would happily talk to any noble Lords who want to persuade the Government that legal aid should be reinstated, at least for matters concerning the children. That would be a very good thing. As I said to the Minister, who very kindly met me yesterday, it seems perverse that if the state seeks to take your children you have access to a lawyer, but if your ex-partner is depriving you of contact you do not. That is a real concern, as are the issues about adequate provision for counselling, mediation and so on; provision is needed. I do not see how people will reflect and reconcile when they have extra hoops to jump through by way of legal process. For that reason, I hope the noble Lord, Lord McColl, will think again about this amendment.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, just as he did at Second Reading, the noble Lord, Lord McColl of Dulwich, has expressed his desire to ensure that those intent on divorce should have the opportunity to consider reconciliation. Of course, we agree with that, which is one reason we are building in a statutory pause: the new 20-week period between application and conditional order. It is also why we are retaining the two-stage order, as well as the bar on divorce applications in the first year of the marriage.

The noble Lord expressed concern, as did others, that the Government’s statistics give the impression that a significant number of divorce petitions never reach decree absolute. There is, however, no evidence that these represent cases of reconciliation. Indeed, analysis of court data by the Nuffield Foundation, referred to by the noble and learned Baroness, Lady Butler-Sloss, shows that the majority of non-completions are due to the technical difficulties of the legal process for unrepresented parties, the obstruction of respondents and, in some cases, protracted negotiations over finances. Indeed, a sample of 300 undefended cases were analysed, in which 51 were found not to have completed. Only one of those cases was identified as having ended in an attempted reconciliation. It is not only the recent Nuffield research that indicates this. Research undertaken by the University of Newcastle, following the Family Law Act 1996, also found that the decision to divorce was not taken lightly or impetuously; it was typically a protracted one based on months, if not years, of painful and difficult consideration.

I appreciate the intention behind the amendment; the noble Lord, Lord McColl of Dulwich, spoke of the profound importance of marriage to society and I could not possibly disagree with that. However, we believe that this amendment would have the potentially perverse effect of encouraging speculative applications. Someone facing marital difficulties might file an application saying, “I think my marriage may be over, though I’m not sure. I can always make my mind up after 20 weeks, or after as long as it takes.” As the noble Baronesses, Lady Burt and Lady Shackleton, observed, that is not the process that parties go through in reality. Indeed, as the noble and learned Lord, Lord Mackay of Clashfern, observed, it is inconsistent with the idea that you are applying on the grounds of irretrievable breakdown.

Applying for divorce should, of course, always be a last resort; certainly, we have seen no evidence that it is anything else. In the vast majority of cases, the applicant reaches the decision after considerable soul-searching and, indeed, after attempts have been made to mend difficulties in the marriage. It should never be seen as a warning shot. Divorce is not a remedy for marital difficulties; it is a remedy for a marriage that is no longer functioning because it has irretrievably broken down. It is right, we suggest, to continue to demand irretrievable breakdown at the point of the initial application as the grounds on which decree could then proceed. Of course, divorce should never be automatic, but again neither this Bill nor any other is going to make divorce easier for those affected by it.

We consider that the existing ground for divorce, namely irretrievable breakdown, should remain, and I urge the noble Lord to withdraw this amendment.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I need no conviction that children are better when their parents continue together, undivorced. I am strongly in favour of helping people who run into difficulties in their marriage. Various things can happen that require help. One of the amendments today refers to part of the 1996 Act that is still in force, providing money to help people to overcome these difficulties.

I need no conviction that divorce is bad for children, but I do need conviction that, if the parents are determined to divorce, nothing can be done to make it better for the children. That is where the arrangements under the Children Act are important. I believe that they are as good as can be achieved, but the important thing is that I would much prefer no divorce at all. We must concentrate on trying to keep parents together and keep the marriage going as a marriage and not in any other way.

I cannot see that the court can say, “This divorce is not good for the children” or “This divorce is good for the children”. Can noble Lords imagine a judge having to decide whether a divorce is good for the children? The answer is no in every case I know of: it is not a good thing for children that their parents have reached the conclusion that they have to divorce, as I said earlier. It is like tearing the children apart, because they love both parents and are very upset when anything happens to part them—but, sadly, the responsibility for staying together is with the parents. I strongly believe that doing everything that can be done to help them to stay together is the best help for the children.

[Baroness Chakrabarti]

My Lords, as I said, it has taken decades of distinguished professional experience for some noble Lords to make the contributions they are making to this debate. However, I have no doubt that it has taken a mountain of courage and not a small amount of eloquence and self-possession for the noble Baroness, Lady Meyer, to make her contribution—for which I am sure we all thank her. I thank her and the noble Baroness, Lady Howe, for giving us the opportunity to talk about children with what I hope will prove to be a probing amendment that puts the interests of children into this discussion.

However, for the reasons stated by other noble and learned Lords, the place and moment for a court to consider the best interests of the child—for example, under the Children Act—should be in matters of contact and finance. At the risk of sounding like a broken record, I say once more that the place for your Lordships’ House to consider what we should do ought to be in putting back legal aid for such contested family matters.

[Lord Keen of Elie]

My Lords, I begin by correcting a misapprehension disclosed by a number of noble Lords. We have produced a family impact assessment in respect of the Bill. Indeed, it was published with the Bill and can be found on GOV.UK. I invite those noble Lords who expressed an interest to have regard to that.

I have no doubt that this amendment is well intentioned, but its effects could be quite draconian. It would in effect require the court to weigh up whether the interests of the marriage’s children should override the autonomous decision of one parent—or indeed both parents, in a joint application—to seek a divorce. It could result in a parent being trapped in a failed or even abusive marriage. It could also reintroduce contested divorce in cases where there are children, because it would allow a parent to put forward arguments that divorce is not in the children’s best interests. It is difficult to see how this would serve the best interests of the children or even the parents. Indeed, this amendment could cause a worsened parental conflict through the legal process of divorce, with further damaging consequences for the children involved.

I understand why some may regard it as important for the court to consider the impacts on children of the decision to divorce, but that ought not to be a matter for the divorce process. The decision to marry or divorce is an autonomous one. It is not for the law to stand in the way of one or both parties who no longer wish to be in a marriage. The legal process of divorce should focus only on ending the legal relationship between the adult parties. Issues that may arise from the divorce, such as disputed arrangements for children, can and are dealt with now under separate statutory provision.

--- Later in debate ---

[Lord McCrea of Magherafelt and Cookstown]

My Lord, I support Amendment 21 and Amendment 3. Amendment 21 speaks about funding for marriage support services, and says:

“In subsection (1)(a), at the end insert ‘, both before and during a marriage’.”


The reality is that many young people are not really prepared for marriage. Many go into it with great expectations: that everything will be rosy, everything is going to be beautiful, and that they are going to have a great life. They do not realise that the reality of life for everyone can be facing difficulties and hardships—not only financially, but in family circumstances.

There are many reasons for family breakdown and, certainly, each one is a tragedy. There used to be an old statement in our home: “a family that prays together, stays together”. It is also true that a family that talks together can stay together. The tragedy today is that families no longer talk together the way that they once did, because they are talking into an iPhone or an iPad. I was raised on a farm, and when I was a child there was a large family table we sat around and talked together. The reality is that, in the homes built today, you could not do this because the kitchen or living room is so small the family could not get around the same table. So where do they go? They go to their rooms. They used to sit before a computer but it is not like that any more; they just sit with an iPad. I sat in a home recently, where a family was gathered for a family bereavement. There was a young person of 17 years of age there. We were having conversations about the grandmother at the home, the background of the family and their upbringing and the day that young person’s mother got married. That young person heard nothing. We sat for 35 minutes. He did not speak, and neither was he listening because he was completely absorbed in his phone.

The Government should do more to encourage families to talk together. Then, I believe, many of them will stay together. The tragedy is, even within relationships, husbands and wives no longer converse as they used to. If you have a problem, the best way is to share it because a problem shared is a problem halved. Therefore, there should be more preparation for young people before marriage, and during marriage they should receive more encouragement. Certainly, when it comes to the possibility of a family breakdown, society should encourage the family unit to stay together—not to make them unhappy, but to build relationships again.

[Baroness Chakrabarti]

My Lords, I am so grateful to all noble Lords who spoke about this group. We do not support families by lecturing them, hectoring them or even creating obstacles to divorce. We support families with fellowship, with community, with solidarity and with social infrastructure. As I have said, I would like people to have access to lawyers—we wicked lawyers, but when you need us we are not so wicked—in time times of trouble, but also to counselling and relationship support long before there is trouble and, indeed, all through their lives. I really have taken on board the points that were made by two noble Baronesses at least about timing, because this support should be available very early in life and, as noble Lords opposite have said, perhaps even before people entertain the idea of marriage. That was the reason for supporting the noble and right reverend Lord, Lord Harries, in Amendment 3, although I take the points about timing and do not want to delay noble Lords further on this.

I hope the Minister will take the opportunity, in responding to this group, to set out what the Government propose more generally by way of this kind of provision for counselling and relationship support, because it seems, to me at least, all-too scant at the moment.

[Lord Keen of Elie]

My Lords, I will begin with Amendment 3, moved by the noble and right reverend Lord, Lord Harries of Pentregarth. I am grateful to the noble and right reverend Lord, not only for his thoughtful contribution to the debate and the scrutiny of the Bill but for meeting me to discuss his proposals.

The Government share the sentiment underlying this amendment, and the observations of a number of noble Lords that couples considering divorce should have available to them information about the services in question, and that where reconciliation is still possible, the legal process should not dim that prospect. On the second point, the Bill introduces for the first time a minimum timeframe of 20 weeks from the application to when the court can be asked to make the conditional order of divorce. The Bill also retains the two-stage procedure for obtaining a divorce under the distinctive procedure of English law, so that each step on the way to divorce requires an intentional and, indeed, conscious decision to end the marriage.

The Government’s view is that best prospect of saving a marriage is when difficulties first arise, not much later when divorce proceedings have begun. In the University of Newcastle evaluation of pilots to test the information-meeting provision that was central to the no-fault provisions in the now-repealed Part II of the Family Law Act 1996, the report noted:

“If the objective of providing information is to facilitate marriage saving, the evidence suggests that it will be more effective if it is provided while spouses are still together and before they make the decision to live apart.”


The Government share the desire to encourage more couples to resolve any disagreements about children or financial arrangements through mediation, avoiding, wherever possible, the need to seek a court adjudication. For these reasons, the Government do not support this amendment but believe that its laudable ends can be achieved by other means.

Terrorist Offenders (Restriction of Early Release) Bill

Baroness Chakrabarti Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, the Opposition support the logic that terrorist offenders—even minor terrorist offenders—should not be released from prison on an automatic early-release basis; they should be subject to assessment by the Parole Board. That said, it is a daunting burden and a grave duty of any legislator to be faced with emergency legislation, let alone emergency legislation affecting both public safety on the one hand and the rule of law on the other. Inevitably, the Executive present us with an emergency, and such is the nature of sensitive intelligence—reports relating to specific offenders and their potential associates—that we lack equivalent information. Therefore, to some extent, we have to trust in the emergency, but it would be better if we could be granted a little more trust as well.

I have seen a letter sent by Peter Dawson, director of the Prison Reform Trust, to the Lord Chancellor and Justice Secretary. It is a letter to which I do not think there has yet been a reply, and no doubt there cannot be a reply this evening. However, it highlights one point that needs to be considered before any further legislation in this area. Peter Dawson is an experienced former prison governor and a distinguished former Home Office civil servant; I hold Home Office civil servants in quite a lot of regard. Following the debate on the Bill in the other place, he wrote:

“I noticed your response to the general issue raised by Kate Green MP about recall arrangements during the second reading debate. You mentioned that either arrest or charge on suspicion of a further offence might trigger recall, but of course recall can and very often is triggered at a much lower threshold. In the specific case of Sudesh Amman, in the days following his release, there was sufficient concern about an imminent risk to public safety for the police to mount a covert surveillance operation by armed officers. Why was that concern considered insufficient to justify a decision by the National Probation Service to protect the public by recalling Mr Amman immediately to prison, as the law currently allows?”


It might be that the Minister will not be in a position to respond to that in his remarks, but that kind of scrupulous detail in relation to the law as it currently stands needs to be considered before the deep dive that we are promised later in the year, after this specific measure, which broadly we support.

We also heard from the noble Baroness, Lady Jones, about rumours and suggestions that some of those serving offenders on whom this legislation will bite are not of the jihadi persuasion but might be minor “terrorist” offenders who have been convicted of criminality in connection with other kinds of activism; she mentioned an animal rights activist. No doubt the Minister can give us some answers in relation to the scope of this legislation and the particular offenders who will be affected.

It is also right that I echo concerns raised by the noble Lord, Lord Pannick, and others about the lack of an Intelligence and Security Committee at a time when we are looking at one version of emergency terror legislation, and why we do not yet have a Hall report. These other mechanisms are there to assist your Lordships’ House and the public in grave times such as these. There cannot just be emergency legislation in a vacuum without the supporting mechanisms that have been provided.

That said, I am prepared to accept the emergency, and have no choice in doing so. But if there is an emergency that requires this legislation—I do not mean this rhetorically; this is really the central thrust of my concern—it is, for the most part, an emergency of the Government’s own making. It is an emergency made by all those who failed for at least a decade to protect the Ministry of Justice from 40% cuts—some of the most savage cuts in Whitehall. That has a direct bearing on the nature of capacity, regime and intervention in the prison and probation systems. It is an emergency of overstuffed, understaffed prisons; some parts of prisons are almost controlled by dangerous offenders. As was eloquently put in the other place by no less than the former Prime Minister, prisoners—most of whom will leave at some time—are highly likely to be far more dangerous when they leave than when they entered; that includes prisoners suffering from mental health and substance-abuse problems who were convicted of minor non-terrorist offences, who have gone into the estate and been radicalised there.

With respect to the comments made by the noble Lord, Lord Blencathra, it is all very well to talk about minimum mandatory sentences or longer sentences for terrorists, but what about the other prisoners who are going into the estate? They would never be sentenced to life in prison, but they are being radicalised. I have even heard serving prison officers speak of their own vulnerability in this kind of regime—vulnerability to radicalisation as well as to physical harm. Such are the dangers of this crumbling criminal justice system on its knees, the cuts to the Prison and Probation Service, and a system too much run for private profit and not for public safety. I noted the remarks from the other side of the Chamber on the failure of privatisation in relation to accountability and public trust in the system.

I support the basic principle of this Bill: discretionary release in the hands of the Parole Board, rather than early automatic release for terrorist offenders. I am glad that that was the limited measure proposed in the light of this emergency, but of course there were many alternative briefings to which we were all subjected suggesting other things that the Government might have been considering and might yet consider. I have heard talk of derogations from the European Convention on Human Rights, of leaving it altogether, and of further experiments in executive punishment without charge or trial—all those have been mooted and briefed on. I am grateful to the Lord Chancellor, at least at the time being, for adopting this more limited measure, and indeed for taking the trouble to consider its compatibility with human rights and to make the Section 19 statement, as mentioned by the noble Lord, Lord Faulks, and others.

On the point of legality and the desperately interesting forensic debate that has gone on in your Lordships’ Chamber on Article 7 of the convention and common law traditions on retrospection—between a positively fantasy football league of eminent lawyers—I will say this. It is quite something to be faced with the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown, on the one hand, and my noble and learned friend Lord Falconer and no fewer than three Independent Reviewers of Terrorism Legislation—the two former ones, and Jonathan Hall with his report—on the other. This suggests a grey area. I have always been completely forthcoming when I have believed that a measure is patently unlawful and will fall foul of the courts: this is not one of those cases. It is of course for the Government to investigate and ultimately defend the legality of their policy and legislation in the courts.

Your Lordships heard the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown, eloquently explain the case law that supports the idea that to retrospectively change release arrangements within the envelope of a sentence does not offend the principle against retrospective punishment. However, your Lordships also heard from my noble and learned friend Lord Falconer, the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Garnier—another fantasy football team—about the danger that, whether or not this offends Article 7, it would certainly offend the sense of basic fairness of a lot of people and prisoners, which is quite important when trying to establish and promote the rule of law in our communities.

I therefore humbly submit to your Lordships that, in the light of that genuine grey area, and given that, whatever we would like, these provisions will almost certainly at some point be tested in the courts, it would be sensible for any Government to listen carefully to the amendment in the name of the noble Lord, Lord Anderson, and to adopt it if it presents no challenge to the basic public policy ambition of this legislation: that is, to prevent dangerous offenders being released automatically into the community while they still pose a risk. As your Lordships have heard from the noble Lord, Lord Anderson, my noble and learned friend Lord Falconer, and others, this amendment does no harm to that central ambition of the Bill: that in future, those convicted and sentenced of the relevant offences will not be eligible for release until the two-thirds point in their sentence, and not without the permission of the Parole Board. If the amendment were accepted by the Government, those already convicted, sentenced and serving in prison would not be released automatically as now, as they understood when they were sentenced. They will have to persuade the Parole Board, but at least they will be able to go to the board at the halfway point. It is to some extent a compromise: it does not offend the public protection ambition of the Bill but goes some way towards that sense of fairness and instinct against retrospection, whether it would ultimately fail in court or not. I will be particularly interested in what the Minister says about that amendment, which can only improve the legal defence ability of this legislation in the domestic court and the Strasbourg court.

However, even with that exquisitely drafted amendment and the wonderful seminar that some noble Lords enjoyed earlier today, this legislation will be vulnerable to challenge if adequate resources are not pumped into the prison and probation system so that offenders have a realistic prospect of engaging with programmes and of an early hearing before a properly resourced Parole Board. If those resources are not provided, the right to engage in programmes and to appear before the Parole Board will be completely illusory. Therefore, resources go not just to the practicality of trying to keep people safe but to the legality and efficacy of protecting prisoners’ rights as well. Resources are the central problem in all this.

Of course, there is no risk-free society, and this is an incredibly difficult area of public policy and legislation, as all noble Lords have acknowledged. However, it is so much harder because of the environment of savage cuts that has been created over the past decade. Even beyond that decade, our politics have not served this area of policy well; there has been a lack of resources, combined too often with overblown rhetoric, and even attacks on the rule of law itself. The rule of law binds not just citizens but Governments too, and if we undermine it by blaming judges and human rights instruments, and by treating it as an irritant, that message will go home to the public and to those who feel that they have just cause for disfranchisement. The rule of law is surely the one thing that binds us all together, not just in your Lordships’ House but in this country, even in polarised and difficult times. I hope that, when the Government and those on the Benches opposite engage with the deep dive that is yet to come after tonight, they will remember that and restrain the more carnivorous instincts in No. 10.

[Baroness Buscombe]

Does the noble Baroness believe that sharia councils do not interfere with our rule of law? Do they fully respect our rule of law?

[Baroness Chakrabarti]

There is one law of the land and it binds everyone. Sharia councils do not provide an alternative legal regime; there is one law of the land, which is what I am talking about. If people seek to argue otherwise—I take the noble Baroness’s point—they need to be disabused of that. There is one law of the land which binds us all, in this House, in government and in opposition; it binds the citizenry, the suspects and the victims. I think we can agree about that.

[Baroness Deech (CB)]

Can the noble Baroness reassure us on the efficacy of the programmes for stopping radicalisation? I have read—I do not have the evidence—that at least one of the terrorists had successfully completed such a programme, and that other convicted terrorists are encouraged by their hierarchy to go neatly through the programme to secure release and be seen to have been deradicalised. In other words, there may be nothing we can do, no matter how much money is thrown at these programmes.

[Baroness Chakrabarti]

As always, the noble Baroness, Lady Deech, points out genuine challenges in this area. We have to try, and to put in sufficient resources to make the best attempt. We certainly cannot have a situation whereby those going into prison, not for terrorist offences, are being radicalised there and coming out more dangerous than when they went in. They will not be touched by this legislation. If and when they offend, people will not say, “That was a convicted terrorist”; they will just think that they were yet another person who has done the rounds, been in and out of prison for whatever offence, and come out more dangerous than when they entered.

We will have to break shortly, and then we will have the opportunity to consider amendments. So many noble Lords talked of their ambitions for the future, and I hope that when considering this Bill, and in future debates, they will remember not just the legalities but the practicalities of trying to ensure that this emergency is not a permanent one that takes us into the seventh circle of hell, debating more emergency legislation, to little effect, well into the future.

Terrorist Offenders (Restriction of Early Release) Bill

Baroness Chakrabarti Excerpts

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Cormack (Con)]

I would rather make my own comments, because the noble Lord did not give way at the point at which I wished to intervene when he was talking about the two cases that are the reason behind this emergency legislation. He talked about the Streatham stabbings. What he failed to acknowledge was that the really dangerous terrorist was the one at Fishmongers’ Hall, who had feigned conversion and then turned on the very man who had been his mentor. That, in a nutshell, illustrates why it is important that we have this emergency legislation. I made it plain in my speech at Second Reading that this is only the beginning. We want substantial legislation; my noble friend has promised it and we must hold him to that promise. But we need to pass this tonight without further ado, and I very much hope that the noble Lord, Lord Anderson, who made an extremely good case with great eloquence, will feel able to withdraw his amendment.

[Baroness Chakrabarti (Lab)]

My Lords, I associate myself with the noble Lord, Lord Anderson, and my noble and learned friend Lord Falconer. I have listened to this debate and heard no compelling reason why this amendment has not been adopted by the Government. In answer to the noble Viscount, Lord Hailsham, the difference between one aspect of the retrospection and the other is that one does not compromise public safety, pure and simple.

By accepting the amendment of the noble Lord, Lord Anderson, nobody is let out, even with the administrative challenges of getting up a Parole Board under the appalling and savage cuts and debilitation to the system that I spoke about earlier, without Parole Board approval. That is the distinction between his amendment and the status quo ante, which is that people come out automatically, regardless of their risk, at the halfway point.

In answer to others, I have so much respect for the noble Lord, Lord Cormack, but his point was about people who are not even on the radar. That problem is ongoing and not dealt with by this Bill. Saying that people should be held for as long as possible is not an answer to the amendment in question now. By definition, those who are affected by this Bill are subject to finite sentences that are not always very long, because these are not by definition the most serious terrorist offenders, as the noble Lord understands. These are people who were subject to the regime that we have been examining because they were at the lower end of the scale. To quote once more the former Prime Minister, these people are coming out at some point, and there has to be some principle in the way that we engage with this.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we all understand the purpose of this amendment and of the other amendments in the group, albeit that I will come on to deal with the point that arises with regard to the second amendment if I may. But I begin by referring to one or two observations made by the noble Lord, Lord Anderson. He observed that when sentenced these persons were not regarded as dangerous by the court, but I cannot wholly accept that proposition. Their offences may not have been part of the extended determinate sentence regime at the time they were sentenced, but of course a number of terrorist offences were added to the extended determinate sentence regime only in 2019. It cannot be assumed that these people were regarded as non-dangerous at the time they were sentenced, so I cannot wholly accept that.

The second fact that I have to raise concerns the suggestion that those due for release in coming days are past the halfway or two-thirds point. I am advised that the prisoners due for release shortly are approaching the halfway release point in their sentences. That is simply the advice that I have been given. Therefore, there remains an issue over their release. The noble and learned Lord, Lord Falconer of Thoroton, said, “They can wait for the Parole Board to get its act together”, but I rather think that if that happened we would face a challenge under Article 5.4 of the convention, and therefore that is not a complete answer at all.

Indeed, the noble and learned Lord talked repeatedly about fundamental points. That leads me to fundamentally disagree with him on a primary point that he kept on making, which is that the legislation would change the sentence and that they should be sentenced by the court. The legislation does not change the sentence; they have been sentenced by the court. As I alluded to earlier, there is lengthy legal authority for the proposition that the court has regard to the appropriate sentence that should be imposed for the crime irrespective of what point there may be executive action for release during the period of that sentence. In other words, it does not distinguish between the custodial and non-custodial elements. That is why the provisions of the Bill are entirely Article 7 compliant apart from anything else.

I understand the concern that arises when we have to look at the presumption against retrospective operation of the law. One thing that the Bill does is to bring the earliest release point for the standard determinate sentence into line with the earliest release point for extended determinate sentences and therefore to produce, if nothing else, an element of consistency. We have been clear that terrorist offenders should serve time in custody that better reflects the seriousness of their offending, particularly in light of recent events, and the measures in the Bill are in keeping with that approach.

I repeat the point—albeit some noble Lords do not feel that there is much force in it—that applying these measures retrospectively will ensure that terrorist prisoners who are currently serving sentences are incapacitated for longer. There is a reason for that in light of what happened, for example, in November last year.

I want to raise one further point. As I read Amendment 2, it would apply not only to those serving fixed determinate sentences but would also reduce the release point for those who have been convicted and sentenced under the extended determinate sentence regime. I suspect that is an unintended consequence—it is not the primary grounds on which I resist the amendment. In light of this debate, I urge the noble Lord to withdraw this amendment.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019

Baroness Chakrabarti Excerpts

Tuesday 11th February 2020 Grand Committee

[Lord Beecham (Lab)]

My Lords, I thank the Minister for his explanation of the order. I concur very strongly with the comments of the noble Lord, Lord Marks. The documentation produced about the order makes it clear that the proposals are meant to punish the offender by ensuring that they do not consume alcohol. However, as has rightly been said, there is little to back that up. What will be the role of the probation service in supporting those involved, given the pressures on the service to which the noble Lord referred? For that matter, what is the role of the NHS? If one of its patients is involved, will doctors or general practitioners also be involved and invited to support individuals through the period during which the order applies? It would seem sensible for another professional who knows the person in question to offer support, in addition to the very overstretched probation service.

It is clear that, while the proposal is seen in the impact assessment as

“punitive as well as rehabilitative”,

there needs to be clear evidence that adequate support is available for those going through the process. Otherwise, it may be simply the temporary response to which the noble Lord, Lord Marks, referred, without any guarantee of a significant impact on future conduct. The objectives described in the impact assessment’s limited explanation of the proposal, which says that AAMRs

“are meant to punish the offender by ensuring they do not consume alcohol during the period in which the AAMR is in force”,

may be attained, but the long-term situation does not seem to be addressed by anything alongside this order. I therefore invite the Minister to say what discussions, if any, have taken place with the Department of Health and Social Care on what support can be given to patients of general practitioners who are in this position. Without that support, the chances of an enduring response are somewhat limited.

[Baroness Chakrabarti (Lab)]

My Lords, I do not want to be repetitive, but I will add a couple of extra thoughts. No one has spoken against the principle of these orders, or of this legislation. The concerns are more about the adequacy of the rollout process, particularly the information that has been made available. I note that the legislative framework was passed in 2012 and, as the Minister said, the final rollout across the jurisdiction will not be until 2023 or 2024. That is a very long time between the passing of law and order legislation and rollout across England and Wales. The piloting of such orders is a very good idea if it is done well and the data is independently evaluated and shared with the public, professionals and so on. However, if the pilots, followed by incremental rollout, go on for too long, it creates a different legal and punitive regime for people across the jurisdiction, with the potential under Article 14 for arguing that people are not being treated equally in sentencing and rehabilitation. Does the Minister have thoughts on what good governance looks like and the appropriate balance between experimentation and piloting new orders, on the one hand, and equal treatment in sentencing across the jurisdiction, on the other?

In the light of previous contributions, I am sure the Minister will say whether he now thinks that the concerns addressed by the Secondary Legislation Scrutiny Committee have been met. As the noble Lord, Lord Marks, said, the comments about limited information being “unacceptable” are very strong. I also hope that the Minister will respond to what my noble friend said about the tension whereby such an order is described as being both a punishment and a rehabilitation measure in the context of abstinence. It is hard to see how telling offenders that their abstinence is a punishment is going to achieve voluntary abstinence and rehabilitation at the end of the relatively short enforced abstinence.

I am also interested in the choice of pilot areas, from the point of view of equal treatment and Article 14, particularly given that there is such a long period before national rollout. How are areas chosen for such pilots? Is the same methodology applied to both datasets to aid evaluation? Is there an independent element in the evaluation? Many of the comments seem to come from enthusiastic stakeholders and the offenders them- selves, many of whom said that they would drink less at the end of the process. With respect, they would say that, wouldn’t they? What is the non-profit-driven, independent element that does not involve those who are monitoring the orders, or the offenders themselves?