Criminal Justice and Courts Bill

Lord Foulkes of Cumnock Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, I have listened carefully to all the speeches and I must say I find the arguments on both sides very powerful—some very powerful, convincing arguments have been put forward. It is a great pity and does a disservice to this House that an artificial division is being created on such an important matter merely because the Liberal Democrats want to have a conscious decoupling from the Conservatives in the run-up to the general election.

[Baroness Hussein-Ece (LD)]

My Lords, I, too, was not going to take part but the previous contribution was not worthy. This is a very serious subject. I am the mother of a son who was mugged when he was a teenager. He came to the brink when he felt so scared that he wanted to carry a knife but luckily he did not—not to my knowledge, anyway. Young people, particularly young men, are more likely to be victims of crime and we need to have faith in the judicial system—as we have heard from noble and learned Lords this afternoon. We need to allow judges to take and judge each matter on its merits, case by case, and must not dictate from this Chamber and from Parliament.

We heard earlier from the noble Baroness, Lady Howells, about the issue of black youth. The argument was—with respect to the noble Baroness, Lady Berridge, whom I respect enormously—that they are disproportionately affected as they tend to be stopped and searched more. That means that others who may be carrying knives are unlikely to be stopped. That is a discrepancy that needs to be taken into account.

The idea that a 14 or 15 year-old boy who feels scared and vulnerable because he may not be in one gang or another but feels the need, however wrong it is—of course it is wrong, but there is no rationality here—to go out with a knife should then have his life ruined as a result of making one mistake is not something that we should support. We should leave it to the courts. We should be listening a little more to young people, which I do not think we are, about which things work and which do not. At a time when knife crime is falling I cannot for the life of me see why we should want to impose this mandatory obligation on the courts.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, Clause 25 would put in place a minimum custodial sentence of six months’ imprisonment for adults and a four-month detention and training order for 16 and 17 year-olds where an offender has committed a second or subsequent offence of possession of a knife or offensive weapon, unless there are particular circumstances that would make it unjust to do so. The clause also provides for a previous conviction of threatening with a knife or offensive weapon to count as a first strike.

Clause 25 was passed into the Bill in the other place and is now being considered by your Lordships’ Committee. The coalition Government are fully committed to ensuring that the public are protected. However, policy agreement has not been reached on this clause, and so it will be for the whole Committee to decide the issue. In these circumstances, noble Lords will understand why I am unable to answer many of the questions about the proper construction of the relevant clause, although I think I can simply draw the attention of those who have not had a chance to study it in detail to the fact that the initial offence has to be,

“without lawful authority or reasonable excuse”.

Then discretion is given with the words,

“unless the court is of the opinion that there are particular circumstances which … (a) relate to the offence or to the offender, and … (b) would make it unjust to do so in all the circumstances”.

The only other point that I make at this stage is that a number of noble Lords made the point that short sentences were not effective. I simply remind the Committee that only this year we passed an important Act which provided, for the first time, that those sentenced to less than 12 months would receive support in the community and support before leaving prison to assist in the resettlement process.

[Lord Foulkes of Cumnock]

I am completely confused as to who the Minister is speaking on behalf of. Is he speaking on behalf of the Government, the Conservative Party or the group of people who put the clause in the Bill? How are we therefore to treat his remarks? Is it to be a regular occurrence that we get Ministers coming to the Dispatch Box who are not speaking on behalf of this great coalition?

[Lord Faulks]

I hope it will not be a regular occurrence. I am endeavouring, in my short remarks, to assist the Committee as a whole on matters of construction but not to persuade it in one direction or another.

Criminal Justice and Courts Bill

Lord Foulkes of Cumnock Excerpts

Monday 21st July 2014 Lords Chamber

Moved by

[Lord Foulkes of Cumnock]

41: After Clause 28, insert the following new Clause—
“Assault on workers selling alcohol
(1) A person who assaults a worker who is required to enforce or comply with the Licensing Act 2003—
(a) in the course of that worker’s employment, or(b) by reason of that worker’s employment,commits an offence.(2) In this section—
“worker selling alcohol” means a person whose employment involves them selling alcohol under the provisions of the Licensing Act 2003;
“employment” in this context means any paid or unpaid work whether under contract, apprenticeship, or otherwise.
(3) A person who is guilty of an offence under this section is liable—
(a) on conviction on indictment to imprisonment for a term not exceeding two years or an unlimited fine (or both),(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory minimum (or both).”

[Lord Foulkes of Cumnock (Lab)]

My Lords, we now move away from great events around the world to rather more mundane matters here at home. None the less, they are very important matters. Noble Lords will recall that last year my colleagues in another place and I in this House moved an amendment to the Anti-social Behaviour, Crime and Policing Bill which would have created a separate legal offence for assaulting a worker in the course of his work. Our goal was relatively simple; it was to create a new, tougher penalty for assaulting people when they are carrying out their work which would encourage prosecutions, act as a deterrent and, most important of all, do justice to the physical and mental suffering of the hundreds of thousands of workers who are assaulted in the course of their employment. Unfortunately, although many noble Lords, including Cross-Benchers and even members of both parties in the coalition, were sympathetic to the general aims of my amendment, it did not succeed.

One of the main concerns raised at the time was that the amendment was too wide in its scope and would cover so many workers that it would be ineffective. I have taken all those criticisms on board in drafting the amendment before the Committee today. Once again, I have had the help of the Union of Shop, Distributive and Allied Workers, one of the most effective unions in the country looking after the interests of its many members in shops and centres around the United Kingdom.

This amendment, unlike the previous amendment, focuses specifically on those workers who are required to enforce and comply with the Licensing Act 2003. They are acting in a policing capacity and if they do not carry out what they are required to do, they are committing an offence. This amendment would create a separate either way offence of assaulting a shop or bar worker selling alcohol. In doing so, it also takes into account another criticism made by the Member of Parliament who is now the new Solicitor-General when a similar amendment was tabled by my colleague, Labour’s shadow Justice Minister, Dan Jarvis. The right honourable Member for Swindon South, our new Solicitor-General, expressed sympathy with the aims of the amendment, but commented that if we were truly serious about higher penalties such an offence should be either way, not summary as was originally intended. I hope, therefore, that my seriousness on this issue has been affirmed to the Solicitor-General, and to those in his party in this House and elsewhere who may have already been sympathetic to the aims of the amendment, as I have taken on board the fact that it should be an either way offence.

For noble Lords who are still sceptical of the case for granting workers who sell alcohol special protection through a separate criminal offence and those leaning towards supporting the amendment, I shall give one example—I have many more, but because of time and because I knew there are other amendments I shall give just one—which captures the issue the amendment seeks to resolve. It is the story of Barry and Teena who own a pub in Leek called “The Priory”. One Sunday night, after the bar had closed, revellers approached Barry in order to purchase some more drinks. It happens again and again like that. Barry rightly refused to serve them. He would have been breaking the law if he had served them. At that stage, one of the revellers threw a glass at Barry’s arm, jumped over the counter and punched the couple’s son, Mark, in the face, splitting his lip. Teena came out to see what was happening and was immediately assaulted by a woman standing behind the bar. Her nose was broken, and when the blood was gushing out of her nose and face, she suffered an asthma attack and needed to be hospitalised. The police arrived, and two people, one man and one woman were arrested. Astonishingly, both were let off with just a caution after that attack. Barry and Teena were two people upholding the law on our behalf, and if they had not done that, they would have been breaking the law. I have other stories, and perhaps I will have another opportunity of telling them.

Why do we need the amendment? This tragic episode and others underline three things which are currently wrong with our criminal justice system. First, and most importantly, the incredibly dangerous and vital public function of workers who serve alcohol goes completely unrecognised. These are men and women who are charged, like the police, with enforcing the law. They must refuse service to those who are underage or too intoxicated. If they refuse to do so, they face legal action, and even the potential loss of their licences and thus their livelihoods. Unlike the police, they have no additional protection for the additional service and for the grave danger it puts them in. What they receive, like all workers, is a clause in the sentencing guidelines—noble Lords who took part in the debate last year will recall this—which makes the assault of a worker providing a public service one of 19 aggravating factors.

There are two problems with the current regime. First, it fails to recognise the additional danger that those who have to sell alcohol face vis-à-vis workers in most other professions and their vital contribution to public order and safety. According to the Health and Safety Executive’s latest figures, alcohol was the trigger to threatened or actual violence in 38% of cases. The second problem is leniency. The regime has produced a system with disincentives to prosecution and which is too lenient. Unfortunately, the fact is that until we start acknowledging the service done by and the added danger faced by those who serve the public alcohol, in a similar manner to how we do with the police, prosecutions will fail to reflect the seriousness of the crime, and victims like Barry and Teena will continue to be deprived of proper justice. At present, as the assault of workers who sell alcohol usually falls into the category of common assault, with the relatively lenient punishments on offer, it results in the Crown Prosecution Service deciding that it is not worth prosecuting. This has been the experience of a range of groups which are supporting my amendment: USDAW; National Pubwatch; the Wine and Spirit Trade Association; the Retail of Alcohol Standards Group, whose members include almost all major supermarkets; and the Association of Convenience Stores. They all support the amendment. Lenient sentencing and a lack of prosecutions feed into a vicious cycle whereby incidents go unreported as workers lose faith in the justice system. Action must be taken.

My amendment will address the problems in three ways. First, by creating a separate offence for assaulting someone who sells alcohol, one that carries a harsher penalty of either up to six months in prison and a fine of up to £500 for those charged summarily—I take what was said earlier about short prison sentences—or, up to two years in prison or an unlimited fine for those convicted on indictment at the Crown Court, the amendment recognises the additional danger faced by this set of workers and their special public service. Secondly, in doing so the amendment will create a greater deterrent through stiffer penalties. I do not want this to happen. I do not want people to be committing this offence and filling up the prisons with all the extra costs involved. That is why having these serious penalties will mean that it is less likely to happen because of the greater deterrence. Thirdly, I hope it will encourage more prosecutions as a new separate offence is easier to determine than common assault, as the Minister knows. I am very pleased that he is dealing with the amendment today. We are not related, but I have developed a friendship with him since he joined this House, and I know he takes his work and this kind of matter very seriously indeed. Common assault, which is currently how such acts are classified, has a number of mitigating and aggravating factors. As this carries stiffer penalties, it would incentivise the CPS to make more prosecutions.

In conclusion, I believe that the amendment would offer greater protection to workers selling alcohol—something that it is often all too easy for us in the comfort of this Chamber to take for granted. The time has come finally to acknowledge the grave danger often faced by those who serve us and enforce our law in the pubs, clubs, bars and shops that all of us frequent and love so much. The time has come for those of us in this Chamber who benefit from their actions to do something to acknowledge that and return the favour to them. I have much pleasure in moving this amendment. I beg to move.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, I am grateful to the Minister for replying in his usual courteous and helpful way, which I greatly appreciate and which I know the House generally appreciates. I was encouraged by three things that he said. First, he said that the Government do not agree at the moment, which indicates that they are open to looking at the issue further. Secondly, I liked the suggestion that he made about the Solicitor-General and the Attorney-General being able to appeal if sentences are too lenient. I will certainly draw that to the attention of USDAW and others.

There were other Members who wanted to take part in this debate. The noble and learned Lord, Lord Hope, wanted to be here and apologises for not being able to. He said that he would have raised the question about the experience in Scotland. The noble Baroness, Lady Coussins, and the noble Viscount, Lord Montgomery, also wanted to be here. We had rather a long debate earlier, for which I must say I take some of the blame. Only some—a very small part, in fact, I say to the Whip who was nodding rather too enthusiastically there.

Thirdly, the most helpful suggestion of all those that have been made came from my noble friend Lord Kennedy and was very kindly picked up by the Minister—that he is willing to meet a group, including my noble friend and myself, of USDAW and representatives of the trade to discuss this further. I will pass on that very kind invitation and I am sure that it will be taken up. In the light of all those helpful comments, I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Digital Bill of Rights

Lord Foulkes of Cumnock Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Faulks]

The noble Lord is right that this is a source of anxiety and a matter which continues to alarm all sorts of people and organisations. The consumer has a role to insist on this information being provided. That, rather than legislation, is probably the answer for the moment.

[Lord Foulkes of Cumnock (Lab)]

Is the Minister aware of the vile, personal internet abuse heaped on supporters of the union in Scotland, including the author JK Rowling—in her case merely for giving £1 million to Better Together? Will he condemn this and indicate whether a Bill as proposed by my noble friend, or some other legislation, could be introduced to protect all of us who suffer such attacks?

[Lord Faulks]

I am happy to agree with the noble Lord that this is an appalling practice, and I deplore what has been said about those with a particular viewpoint. The internet being used in this way is the enemy of democracy. We should nevertheless be hesitant before we prevent access to the internet. Russia, China and some of the Arab states prevent access to the internet. Once you start doing so, you prevent some of the advantages, economic and otherwise, of this extraordinary phenomenon, now 25 years old.

Queen’s Speech

Lord Foulkes of Cumnock Excerpts

Monday 9th June 2014 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

Before the Minister moves on from the matter of strengthening the provisions of the Proceeds of Crime Act, perhaps I may say that I was a Minister at the time and helped to introduce it in the other place. Can he confirm that all the strengthening of the Act will apply to Scotland as well as to the rest of the United Kingdom?

[Lord Faulks]

Subject to correction, I think that I can reassure the noble Lord of that.

The Bill will also introduce a new participation offence directed at those who help sustain the operation of organised crime groups and ensure that the penalties for serious cyberattacks properly reflect the harm caused.

The Government are also taking the opportunity provided by the Bill to strengthen the protection of children by clarifying the law on child cruelty, closing a gap in the extraterritorial reach of the Female Genital Mutilation Act 2003 and introducing a new offence of possession of a paedophile manual.

The Government also plan to introduce a modern slavery Bill. Modern slavery is an appalling crime. Traffickers and slave masters, who are often part of organised crime groups, use whatever means they have at their disposal to coerce, deceive and force individuals into a life of abuse, servitude and inhumane treatment. I am sure that the whole House will join me in deploring the fact that this crime is taking place now in Britain.

The modern slavery Bill will give law enforcement agencies stronger tools to stamp out this complex crime, and it will ensure that perpetrators can receive the sentences they deserve—including, where appropriate, life sentences. The Bill also takes action to enhance protection and support for victims through a new statutory defence for victims who are compelled to commit crime.

Although not specifically referenced in the gracious Speech, the Government intend to introduce a draft Bill to reform the Riot (Damages) Act in the fourth Session. The draft Bill will be the culmination of detailed work undertaken since the events of August 2011 to ensure that the 1886 Act is modernised and provides clarity to stakeholders, individuals and businesses as to what compensation arrangements are to be put in place for the future. In November 2013, an independent review of the Riot (Damages) Act, commissioned by the Home Secretary, was published. The reviewer made a number of recommendations and these form the basis for the public consultation which we will launch shortly. We then plan to present a draft Bill for pre-legislative scrutiny.

Finally, I wish to mention the Government’s firm commitment to health and education. This Government believe in higher standards for all and we are committed to getting every child’s education right, which is why a substantial reform programme is well under way. This programme includes restoring rigour to exams, reforming vocational qualifications, bringing in performance-related pay, reforming teacher training, transforming schools through the academies programme and increasing the total number of apprenticeship places to 2 million by the end of this Parliament.

To improve education attainment and child health, all infants will receive a free school meal. Free childcare will be extended to more of the most disadvantaged two year-olds and a Bill will be introduced to help working families with childcare costs.

During the course of this Parliament this Government have developed a new health and care system which is more patient centred, led by health professionals and focused on delivering world-class health outcomes. We strengthened the role of the Care Quality Commission, with new chief inspectors, a new inspection regime and a new statutory duty of candour on the part of the healthcare providers. With local authorities leading local public health systems and Public Health England providing national leadership and vision on health protection and improvement, this Government have given public health a higher priority and dedicated resources. Through the Care Act 2014, we have delivered the most profound change to the care and support system for a generation, enabling people needing care to be treated with dignity and respect, improving the quality of that care and easing the burden of care costs. During the final Session of this Parliament, the Government will be focused on ensuring that the new health and social care system works with both purpose and integrity.

Some have criticised this Government for having too little by way of legislation in the Queen’s Speech. I reject that criticism. In the areas of law and justice and home affairs alone there is a great deal for Parliament to consider. Experience tells me that much of the detailed scrutiny will take place here in your Lordships’ House. The legislative programme as a whole contains some highly topical and important issues, which will benefit from such scrutiny. However, this Session will be concerned not just with legislation. I appreciate that in the speeches that follow mine there will be a range of issues raised by speakers; those issues, whether they are concerned directly with the Queen’s Speech or not, are likely to set much of the agenda for this final Session.

This coalition Government have achieved much already, but there is more still to achieve. I look forward greatly to the contributions to the debate from all around the House, which will help to indicate how best we can consolidate on these first four remarkable years of government.

Commonhold and Leasehold Reform Act 2002

Lord Foulkes of Cumnock Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Maddock (LD)]

My Lords—

[Lord Foulkes of Cumnock (Lab)]

My Lords—

[Noble Lords]

This side!

Justice: Cautions

Lord Foulkes of Cumnock Excerpts

Tuesday 11th March 2014 Lords Chamber

[Lord Faulks]

My Lords, the House may be interested to know that the use of out of court disposals rose significantly between 2003 and 2007 but has fallen significantly since 2007 and continues to fall under this Government. The use of cautions is at its lowest point for almost 30 years, and nearly at half the level seen in 2007. Furthermore, crime continues to fall. Recorded crime is down by more than 10% under this Government and the independent Crime Survey for England and Wales shows crime is at its lowest level since records began.

[Lord Foulkes of Cumnock (Lab)]

My Lords, would the Minister, or one of his colleagues in the Ministry of Justice, arrange to meet with Kenny MacAskill—

[Noble Lords]

Oh!

[Lord Foulkes of Cumnock]

Well, I am consistent. Will he meet the Scottish Justice Minister to look at the position in Scotland and see what we can learn from each other?

[Lord Faulks]

I am sure—as was the Minister who previously answered Questions—that there is a great deal to be learnt from Scotland. Should the opportunity arise, I will certainly take advantage of it.

EU Treaties: Justice and Home Affairs Opt-Outs

Lord Foulkes of Cumnock Excerpts

Monday 1st July 2013 Lords Chamber

Asked by

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government when they expect to make a decision regarding Justice and Home Affairs opt-outs under Protocol 36 to the European Union treaties.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the Government are carefully considering the block opt-out available to us under Protocol 36 to the treaties. On 15 October last year, the Home Secretary announced that the Government’s current thinking was to exercise the opt-out and then seek to rejoin measures that are in the national interest. Further information will be made available to Parliament in due course.

[Lord Foulkes of Cumnock]

My Lords, will the Minister confirm that the Government have been carefully considering this matter for months and months and that the all-party European Union Select Committee unanimously said that the proposal would be a danger and a threat to national security and would undermine our fight against international crime? According to the leaked memo to the Daily Telegraph, it is a fight between his party and the other party in the coalition. They cannot make up their minds. Surely the question of national security and the fight against crime should rise above these party differences. Will he use all his influence to get the members of the Government to think again about this important issue?

[Lord McNally]

My Lords, the passion of the noble Lord, Lord Foulkes, is explanation in itself of why the Government are taking such care and time to look at matters that he himself has acknowledged relate very much to national security and the national interest. That is precisely why the Government are taking their time in making these decisions.

Leveson Inquiry

Lord Foulkes of Cumnock Excerpts

Thursday 29th November 2012 Lords Chamber

[Lord McNally]

I hear what my noble friend said, but this is one of those dilemmas. In each House, my right honourable friend and I could have sat silently while a Conservative made the points, or we could have done what I think is the sensible thing, which is to set out clearly the attitudes of the three major parties that are going to have responsibility for seeing this through. I think we took the right decision and do not agree with my noble friend.

[Lord Foulkes of Cumnock]

On the specific point made by the noble Lord, Lord McNally, this is a different House from the House of Commons and very different in its procedures. I have agreed with everything that the noble Lord has said so I hope he will forgive me if I ask him: in what capacity was he speaking from the Dispatch Box? Why could he not have done what has been done on a number of previous occasions—the noble Lords, Lord Alderdice, and Lord Dholakia, have done it—and expressed a point of view from the Liberal Democrat Benches? That is what is done in this House, which is different from the other place.

[Lord McNally]

This House would not then have had the benefit of hearing what my right honourable friend the Deputy Prime Minister said in the other place. I was trying to work out how long the noble Lord and I have known each other. I think it is—

[Lord Foulkes of Cumnock]

It is 45 years.

[Lord McNally]

So he knows the affection in which I hold him. However, I do not think that this is an issue for the barrack-room lawyers. It is a time for statesmanship in all three parties.

Justice and Security Bill [HL]

Lord Foulkes of Cumnock Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Wallace of Tankerness]

That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1, Schedule 1, Clauses 2 to 15, Schedules 2 and 3, Clause 16.

[Lord Foulkes of Cumnock]

My Lords, how is it possible to get clarification of what the noble Earl, Lord Attlee, said in reply to a question? I was not clear whether he said that a Private Notice Question, if we tabled one, would be answered by him this week. It is unsatisfactory that we have not had an apology or any explanation for one of the worst débâcles we have seen for years.

[Noble Lords]

Order!

[Lord Foulkes of Cumnock]

This is in order. Surely the Deputy Leader of the House can answer.

[The Minister of State, Ministry of Justice (Lord McNally)]

You are not in the other place now and you are abusing the procedure of this House. That matter is not before the House at the moment.

[Lord Foulkes of Cumnock]

With respect, we are considering the business of the House, and when my noble friend Lord Barnett raised the matter previously, he was abused by the Leader of the House for doing so. My noble friend was told by the Leader of the House that consideration of the business of the House—currently relating to consideration of the Justice and Security Bill—was the point at which to raise these matters. Surely the Deputy Leader of the House can give us an answer. Will we get an answer to a PNQ if it is tabled later this week?

[Baroness Royall of Blaisdon]

My Lords, perhaps I may explain to my noble friend and other noble Lords that to date we do not have business questions in this House. It is very difficult to raise them and we must ask the Procedure Committee to look at the matter. I agree that there should be space to ask business questions. I should also explain that PNQs are a matter for the Lord Speaker of this House, but I advise the Government that tomorrow I will certainly table a PNQ on the west coast main line for consideration by the Lord Speaker, because it is imperative that we receive answers to these questions.

Crime: Self-defence Homicide

Lord Foulkes of Cumnock Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord McNally]

I think that I have made that clear. We are consulting on guidance. However, the trend of the Question tabled by the noble Lord, Lord Mackenzie, was that somehow policemen could make an instant judgment. Circumstances are very varied in these situations and the Director of Public Prosecutions has made it clear—and I think that the draft guidance implies this—that although police are invited to use common sense and discretion when assessing circumstances, the Director of Public Prosecutions cannot abandon his responsibilities in examining whether or not a crime has been committed and should be prosecuted.

[Lord Foulkes of Cumnock]

My Lords, will the Minister make clear to the viewers and listeners from north of the border that all the answers he has given so far apply only to England, and perhaps also to Wales?

[Lord Elystan-Morgan]

Including Wales.

[Lord Foulkes of Cumnock]

Yes, including Wales, thank you. Will the Minister consider having some discussion with his counterpart in Scotland about lessons learnt from Scots law, which very often—and, I think, in this case—is superior to English and Welsh law?

[Lord McNally]

I am very happy to have such discussions. The noble Lord would be amazed, in the 18 months I have been in this job, how often the advice is: “They actually do this a lot better in Scotland”.