Police, Crime, Sentencing and Courts Bill

Lord Garnier Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Garnier (Con)]

My Lords, I thank the Minister for performing what I think must have been quite a difficult task in explaining so clearly this long and complicated Bill. In referring to my interest as a barrister in private practice, as set out in the register, I also say how much I am looking forward to hearing the maiden speech of another barrister, my noble friend Lord Sandhurst, who will bring his experience and wisdom to our proceedings, to our collective advantage.

I entirely agree with the Constitution Committee’s report on the Bill, published on 9 September, and with earlier speakers—I have said as much myself in relation to other Home Office and Ministry of Justice Bills over the last 30 years—that the Bill is far too big. I have seen worse examples of this habit of introducing excessively large Bills, but it seems to be a habit ingrained in these two departments. At least this Bill has only one volume, but it has 177 clauses, 20 large schedules, extends to almost 300 pages and covers a large number of disparate subjects. I make no personal criticism of my noble friend on the Front Bench, or other Ministers in this House who have the conduct of this Bill, because I doubt whether they have any say in the matter, but this insidious habit affects Cabinet Ministers from all parties as soon they are appointed to office in these two departments.

I am not sure whether it comes from a desire to appear to be actively responding to what is often mistakenly thought to be some acutely felt public need or to persuade colleagues on the Cabinet sub-committee on legislation that because the Bill is so big, it must be important and should come higher up the programme than other Bills vying for recognition and parliamentary time. Having attended that sub-committee, I know there is always strong competition for a place in the parliamentary legislative programme every Session, but it sometimes looked as though someone had swept an entirely random collection of ideas from Home Office or MoJ shelves into the Bill. Not for the first time, we are presented with a criminal justice Bill that contains some good and worthwhile provisions, others of lesser value or utility and, judging from my right honourable friend George Eustice’s recent press article, will soon have a plainly unnecessary additional provision to criminalise something that is already a crime—namely, dog theft. I think that in this House we can tell the difference between an Early Day Motion or virtue-signalling and a useful addition to the criminal law.

Bills that are too big do not receive proper scrutiny in the other place, where Governments strictly guillotine Bill Committee and Report stage schedules. This Bill is hugely controversial on several fronts and your Lordships’ House will want to give it the attention it deserves. There is no time in a crowded Second Reading debate to set out detailed arguments, but there is much wisdom in the Delegated Powers Committee’s report published yesterday. Many of us would like to see the Bill amended—some of us to take things out, some of us to put things in, and some of us to do both. There is much to be considered in the provisions of the Bill on public order, data gathering, life and minimum sentences, and delegated powers. I agree with the noble and learned Lord, Lord Falconer, in relation to IPPs. While having concerns about those matters, and respecting the long-standing right to protest, I would like to alter the law on aggravated trespass so that those who disrupt a lawful activity should have the burden of proving, as opposed merely to asserting, that the activity they would like to disrupt, or have already disrupted, is unlawful.

Large criminal justice Bills cause unintended consequences, and I trust that the Committee and later stages of the Bill will not be rushed or truncated. Bills of this sort do not make easy work for the judges and lawyers who have the job of applying their provisions, once enacted, in real cases involving real people. When shadow Home Affairs and Justice Minister, I used to ask Labour Home and Justice Secretaries, including the noble Lord, Lord Blunkett, how many of the provisions in the approximately 60 criminal justice statutes enacted by their Governments since 1997 were respectively still in force, had not been implemented or had been repealed before implementation. The answer was roughly one-third in each category. Let us therefore try to enact about 33% of this Bill well and coherently and just write newspaper articles about the rest.

Operation Midland

Lord Garnier Excerpts

Thursday 11th February 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, its primary focus was to learn the lessons of what went wrong during that period so that those mistakes would never be repeated. Obviously, the IOPC then declined to investigate further.

[Lord Garnier (Con) [V]]

My Lords, Lord Brittan demonstrated that it is possible to maintain one’s dignity in adversity. In the last months of his life, he was cruelly assailed by baseless allegations made by malicious users that would have broken healthy men. It is sad that he did not to live to witness his own exoneration and that his widow is still troubled by the acts and omissions of the police identified by the Henriques report. Does my noble friend agree that police officers who have taken an oath to uphold the law but who suborn it by perverting the course of justice by deliberately misleading a judge should not just be investigated for misconduct but prosecuted?

[Baroness Williams of Trafford (Con)]

My Lords, as I said, the IOPC has declined to investigate in certain areas. I know that certain cases have been given to Merseyside, as a separate force, to investigate, but it is sad that Lord Brittan did not get to see his name cleared and I understand the grief that his widow will be going through.

Antique Firearms Regulations 2020

Lord Garnier Excerpts

Wednesday 6th January 2021 Grand Committee

[Lord Garnier (Con) [V]]

My Lords, I recommend the article by Rupert Jones, “Firearms and Fury: The Rise of Gun Crime in the UK”, published in Counsel magazine for June 2018 and helpfully drawn to the Committee’s attention by the Library in advance of this debate. Together with the clear explanation by my noble friend the Minister, it makes the case for these regulations unanswerable. Were it permissible to do so, it should be annexed to the Official Report for this debate.

The penalties for gun crime are almost invariably severe. Mr Jones wrote about a registered firearms dealer who was sentenced to 30 years in prison for transferring illegal firearms and ammunition. He had Home Office authority not only to possess prohibited handguns but also to sell them. His criminal sideline involved making ammunition to fit antique guns. Despite being in prison since 2015, this man’s ammunition was being discharged by criminals on our streets and recovered by the police long afterwards. It very probably still is. It seems that one can lawfully buy a working handgun without any record of the transaction.

Despite the post-Dunblane restrictions, for some reason it was not thought that antique firearms, for which ammunition was no longer commercially manufactured, would be seen other than as items to be admired in collections. The non-commercial manufacture of ammunition is as old as gun-making itself. I have known people like me, who are legitimate and licensed owners of pre-1939 shotguns used only for game shooting, who used to make their own shotgun cartridges either to save money or as a hobby. That skill is well beyond me. However, my great-great uncle, the sixth Lord Walsingham—a trustee of the Natural History Museum until his death in 1919, perhaps one of the greatest game shots of his generation and a world-renowned ornithologist and lepidopterist—used to make paper cartridges filled with dust for a gun with a barrel no bigger than a pencil. He used them carefully to stun hummingbirds in the tropics so that he could study them close up.

Unfortunately, the private manufacture of modern ammunition specifically designed to be fired from otherwise lawful antique weapons in the course of crime is all too common. When I was Solicitor-General a decade ago, I learned that remarkably few handguns were used in a great many criminal shootings. A small number of illegally held handguns are available for hire to criminals and passed around from gang to gang. What I had not realised until I prepared for this debate is that the market is not limited to modern handguns and longer-barrelled weapons. Antique weapons are also used to commit crimes. If they are—I am sure that they are—we must do all that we can to prevent it. If these regulations help with that, so much the better.

Before concluding, I will say one more thing. At the time of the Dunblane reforms, ill-considered damage was done to the legitimate, competitive, Olympic sport of target shooting and its innocent participants. I join my noble friends Lord Shrewsbury and Lord Lucas in hoping that these otherwise commendable regulations cause nothing similar to law-abiding collectors of antique guns.

Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020

Lord Garnier Excerpts

Thursday 26th November 2020 Lords Chamber

[Lord Garnier (Con) [V]]

My Lords, the noble Baroness, Lady Ritchie, always informs our debates. One of the fears that I had during the Brexit debate before the referendum was that if we left the EU, we would damage the co-operation, and its speed and effectiveness, between the law enforcement and investigatory agencies of the United Kingdom and the remaining 27 states. Since we joined the EU, the bilateral assistance that our agencies have given individual EU countries and vice versa has only improved. Although there have been some glitches and a few eccentric decisions flowing from the use of European arrest warrants, the EAW system, as well as the wider international assistance in law enforcement and co-operation between the security services, has worked well to our mutual benefit.

I agree with my noble and learned friend Lord Mackay of Clashfern; my noble friend the Minister has clearly explained the ambit and purpose of these regulations. They should ensure that, when translated into our national law, they will be every bit as effective as before and deal with any deficiencies in retained EU law. There is a list of about 20 separate areas of law enforcement activity covered by these regulations in which we have, as a member of the EU, co-operated with other EU countries. No one can doubt their continuing importance to our own and our shared protection from the activities of the most serious criminals.

It is clearly vital that these regulations should be in force before 31 December this year and I doubt that the regulations themselves are controversial. The Government’s intentions are clear and understood. That said, the noble Lord, Lord Reid of Cardowan, has made some pertinent points. However, I should like my noble friend the Minister to reassure me that, even when we have finally left the EU in the new year, the practical and operational work covered by the current legal framework will not diminish in volume and quality.

Terrorists, money launderers, cyber criminals and human traffickers will exploit any lack of international co-operation. They do not care or mind whether we are in or out of the EU. Investigations into their activities, and their prosecution with evidence gathered from both sides of the channel, must carry on without reduction or legal impediment after 31 December with the same, and even increased, operational vigour as they have until now. Departure from the EU is no reason for any alteration in our approach or metaphorically to cut the wires between the United Kingdom and the EU 27.

Hate Crime: Misogyny

Lord Garnier Excerpts

Monday 23rd November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I certainly agree that freedom of speech is one of the most precious things we preserve in this country, but it comes with responsibility. Where freedom of speech is used as an excuse to inflict a hate crime on someone else, that line has been crossed.

[Lord Garnier (Con) [V]]

My Lords, I agree with my noble friend’s last answer. We are all against the hatred of women, but does my noble friend agree that we do not need to create more offences when there are already laws dealing with misogyny? Is it not already a crime, for example, to breach the peace, to threaten violence against a woman, physically to attack a woman, both sexually and non-sexually, and to incite violence against a woman? Where those crimes are aggravated by hatred of the victim or women generally, the court will take that into account when sentencing the defendant. If the evidence is there, we can and should prosecute. We do not need more offences.

[Baroness Williams of Trafford (Con)]

We will keep an open mind until the Law Commission reports but my noble and learned friend is absolutely right in some of the things that he says. As I said to the noble Baroness, Lady Donaghy, if we created a hate crime in relation to gender, we would have to think very carefully about whether it would apply to the entire population or just women. That is what the Law Commission is considering.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Garnier Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Garnier (Con) [V]]

My Lords, my noble and learned friend Lord Stewart has made both his first appearance at the Dispatch Box and his maiden speech. He spoke kindly and accurately of our noble and learned friend Lord Keen and modestly of himself, but we have already benefited from his being here with us. He is most welcome, and I look forward to meeting him in person before too long. I also congratulate my noble friend Lord McLoughlin on his maiden speech. His work in the other place in government and in opposition over many years, the way he performed it and the content and manner of his speech today suggest to me that we will have much to gain from his arrival here.

This Bill is being debated after the decision of the Investigatory Powers Tribunal last December in the third direction case but before its consideration by the Court of Appeal. Although it has no retrospective effect, it will clear up some of the questions left hanging by that case, which concerned the lawfulness of a secret national security policy apparently authorising Security Service agents to engage in criminal activity, including, according to the claimants, torture and murder.

The facts of any particular operation involving the use of covert human intelligence sources are necessarily kept from the public and even from Parliament. That mystery creates mystique for some and suspicion in others. While the security services can cope with the mystique, some suspicions are better allayed than fomented. I used to think that there was an advantage in keeping things vague so that the Foreign Secretary or Home Secretary and their security advisers could pragmatically, but legitimately, apply their discretion and common sense to the difficult legal and operational problems that come with deploying agents at home or abroad.

In my experience of the senior officers of the security and armed services when I was Solicitor-General, they never wanted to bend or break the law, be it the criminal law, the law governing military action or the laws concerning surveillance and counterterrorism. Indeed, they were meticulous about staying within it, and I really do not think they were just telling me things they thought I wanted or ought to hear. Putting the law into statute would, I once believed, inhibit their ability to take quick decisions and create sclerosis within the chain of command. No one needed reminding not to murder or torture people because it would be in breach of the European Convention on Human Rights. Intercepting suspected terrorists’ electronic communications was clearly a proportionate interference with their convention rights.

Part of me still thinks that keeping things pragmatically vague is sensible, but I am now persuaded that, even if the operations themselves and the identities of those providing vital information to the security or other services may often have to remain confidential for ever, the law governing their work should not be hidden, largely within the common law, to be revealed only when a judge’s interpretation of the law, often arrived at by necessary implication, is made public, as in the third direction case. It is also right that the government agencies to be covered by this Bill, and some other important questions, are thoroughly scrutinised in Committee.

The security services were put on a statutory footing in the 1990s, and other statutes have followed, but we now need to know what the rules are and to be able to say whether, in a democratic society, we approve of them. Some things must be kept secret, so we need to have confidence in the people who do this work in order that we can trust them, even if we do not know exactly what they are doing. Knowing what is permitted by statute, even if distasteful to some, helps to enhance that confidence. There are some things that, when known to the public, remove suspicion, even if they do not always lead to universal approval, but, in saying that, I do not expect the state to be absolved of all responsibility for its actions. The innocent bystander and his dependants, whose life, limb or livelihood are taken or damaged by someone whom this Bill absolves of particular criminal conduct, should not be left helpless and without remedy.

The preservation of our national well-being sometimes requires us to permit good people to do bad things. Today, especially, we remember that, in war, we justify the doing of terrible things by and to our Armed Forces to protect our freedoms and recognise that, in other fields of national conflict, we must permit that which, on other occasions, we would abhor.

Counter-Terrorism and Sentencing Bill

Lord Garnier Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Garnier (Con)]

My Lords, this Bill contains some necessary and useful provisions, but it may take some time to be sure. We are still assessing the good effects of the Counter-Terrorism and Border Security Act 2019 and the several terrorism statutes passed since 2000.

Of course, this Government are reacting understandably to the attacks in London and Manchester, and perhaps even to those in Salisbury, and I fully accept the context laid out by my noble friend Lord Parkinson in his very clear opening to this debate. The security services are aware of hundreds of potential or actual plots, many of which, thankfully, they disrupt before any harm is done. They and the police are stretched but perform with great bravery and resilience to protect us from homegrown and foreign attacks, and nothing that I say detracts from my admiration and gratitude for what they do.

I refer to my registered interests as a practising member of the Bar and as a trustee of the Prison Reform Trust. I also welcome the right reverend Prelate the Bishop of Manchester, and congratulate him on his maiden speech, a thoughtful and considered contribution to our proceedings, which I hope will be the first of many. His home city recently suffered a terrorist attack, by no means the first in his diocese in his or my adult life, so he speaks with knowledge and insight. Our constitution is eccentric in permitting not only unelected Lords temporal, but also unelected Lords spiritual to legislate, but as he has just demonstrated, it is an eccentricity that we should celebrate.

My noble friend Lord Vaizey of Didcot has also given us a taste of things to come. He and I were not only Members of Parliament at the same time, but also Ministers at the same time. However, whereas I was in office for just over two years—metaphorically, 15 minutes—he served as Culture Minister for over six years, longer than any previous holder of that post. The son of Marina Vaizey, the writer and art critic, and the late Professor John Vaizey—Lord Vaizey, the academic and economist—my noble friend is not a man given to political hyperbole. He is a wise and thoughtful man. We will hear from him, often I hope, on subjects he has a deep knowledge of and great affection for. We are fortunate that he has joined us.

Regarding the Bill, I agree with lengthy sentences for those guilty of serious terrorist crimes, and whole-life terms if appropriate, but in the time available, I highlight just one subject, covered in Clauses 27 to 31: the release of terrorist offenders. This part of the Bill, which covers all three United Kingdom jurisdictions, will in essence remove from the Parole Board—I use that term generically—the power to direct the early release of certain dangerous terrorist offenders—that is, those terrorist offenders found to be dangerous by the sentencing court at the time they were sentenced, and where the offence carries a maximum of life imprisonment. These provisions apply to the most serious terrorist offences such as attack planning, directing a terrorist organisation, or giving and receiving terrorist training. They will also apply to manslaughter, kidnap and possession of explosives, when the court finds these were connected to terrorism.

I can understand that at first blush, and without giving the matter a great deal of thought, this might seem entirely reasonable. Why should offenders in that category be released at all, let alone early? There will, I accept, be some such offenders whose early release would not be recommended by the Parole Board because they remain as dangerous to the public after years in prison as they were when they were first sentenced. As always, I will defer, and have deferred, to the knowledge and expertise of the noble Lords, Lord Carlile and Lord Anderson.

However, before we remove the Parole Board from the picture, should we not pay attention to those noble Lords’ successor as Independent Reviewer of Terrorism Legislation, Jonathan Hall QC? In his note on this Bill, dated 1 June 2020, he described the removal of the Parole Board’s role of considering the early release of the most dangerous individuals convicted of terrorist offences as a “profound change”; clearly it is. He points to three immediate consequences: first, to the extent that the possibility of early release acts as a spur to good behaviour and reform for offenders who are going to spend the longest time in custody— that will now go; secondly, the opportunity to understand current and future risk at Parole Board hearings will be removed; thirdly, child terrorist offenders, whose risk may be considered most susceptible to change as they mature into adults, will have lost the opportunity for early release.

The Government may very well have cogent reasons that justify Clauses 27 to 31, and if they do, I will pay close attention to them, as I am sure the noble Baroness, Lady Prashar, will too. However, given that the independent reviewer is there to provide his considered opinion on the matter, we should perhaps pay careful attention to what he has had to say as well.