Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

Moved by

[Lord Paddick]

67: Clause 13, page 17, line 1, leave out subsection (7)
Member’s explanatory statement
Clause 13(1) requires an asylum claim to be made at a designated place. However, the UK territorial sea is excluded from being a place where a Home Office Immigration Officer is authorised to accept an asylum claim. This amendment would remove that provision.

[Lord Paddick (LD)]

My Lords, the Committee will be pleased to hear that I am not hangry any more. I would not like the Chief Whip to think that this speech is so short because of what he just said; it was going to be short anyway.

Amendment 67 in my name and that of my noble friend Lady Hamwee seeks to take out an apparently innocuous part of the Bill that intends to put into primary legislation that the feet of the asylum seeker need to be on dry land in the UK before they can claim asylum. At present, this requirement, “UK terra firma” as I might call it, is contained in the Immigration Rules rather than in primary legislation. The concern of organisations such as the Immigration Law Practitioners’ Association is that this strengthens the Government’s hand in any court case where Home Office actions are challenged as being contrary to the refugee convention, where the Government can now point to primary legislation as in some way overriding their international obligations.

Section 2 of the Asylum and Immigration Appeals Act 1993 provides that nothing in the Immigration Rules may lay down any practice that would be contrary to the refugee convention. Moving the UK terra firma condition from the Immigration Rules to primary legislation may be seen as an attempt to get around this requirement. The change is seen as integral to other quite abhorrent and questionably legal measures that we will come to later, giving Border Force and others the authority to board, intercept and drive away vessels containing asylum seekers crossing the channel.

Presumably this change that we are challenging is to stop asylum seekers being pushed back towards France from trying to claim asylum in the channel. Clause 13(7) may seem innocuous, but it is part of a greater evil and should be removed from the Bill. I beg to move.

[Lord Coaker (Lab)]

My Lords, I have a couple of questions for the Minister on Amendment 67. I will be interested to hear the debate on this amendment because the change in Clause 13(7) appears to be fairly innocuous, although quite significant. As the noble Lord, Lord Paddick, has said, the Immigration Law Practitioners’ Association has raised concerns about it so we will all listen carefully to what the practical impacts of this charge are.

Can the Minister explain what “territorial sea” of the United Kingdom means? I take the Chief Whip’s point—this may seem a very detailed point, but that is the point of Committee. What does “territorial sea” mean with respect to the beach? My understanding is that territorial water is low tide to 12 nautical miles out. The target then becomes the low beach mark. How is that measured? This is pedantic, but important: how is that measured around the coast?

I looked up the Explanatory Notes for Maritime and Coastal Access Act 2009 and I do not understand what they mean:

“For the most part the territorial sea of the UK does not adjoin that of any other state. Where it does do so in the English Channel, the Territorial Sea (Limits) Order 1989 … sets out the limits of the territorial sea in the Straits of Dover in accordance with an agreement between the UK and France.”


Is that still in existence? The notes continue:

“In relation to the delineation of the territorial sea between the UK and the Republic of Ireland, the situation is more complex, with no boundary having been agreed between the two states. Instead arrangements have been put in place under the Belfast Agreement for joint management of the Loughs that form the border (the Foyle, Carlingford and Irish Lights Commission’s Loughs Agency).”


I do not expect the Minister to answer now—this is not a trick question—but will she write a letter to explain what the legislation means for someone who may or may not be claiming asylum? The Explanatory Notes continue:

“Within the territorial sea, the UK has jurisdiction for the sea itself, the seabed subjacent and the air above.”


I do not know what the “air above” means. Will the Minister clarify that point?

I am confused—and the Government are confused—on another point. A row is clearly going on in government between the Ministry of Defence and the Home Office on pushback and this House is confused by the Government’s response.

Yesterday at the Home Affairs Select Committee, the Home Secretary was asked whether James Heappey, a Ministry of Defence Minister, was right to rule out pushback by the Navy. To be fair, the noble Baroness, Lady Goldie, ruled this out in this Chamber in answer to a question from me and other noble Lords. We were told by the Home Secretary, and this is really important, that the Minister

“gave a view … They are not facts. They cannot be facts, because the work—that operational work—is still under way. While I appreciate that he was responding to questions in Parliament, whether that was in Committee or in response to an urgent question, this is work in progress. It is wrong to say anything specific with regards to work operationally that is still being planned. That work has not completed yet.”

They cannot both be right, can they? If the Government have a pushback policy, they have a pushback policy and, as the noble Lord, Lord Paddick, mentioned, presumably including the seas helps with that. I do not know. What is the Government’s policy on pushback? We are debating the Nationality and Borders Bill and an aspect of it to do with territorial seas and I have no clue what the Government’s policy is.

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[Baroness Williams of Trafford (Con)]

I agree with the noble Lord and I will clarify the point on this issue. He knows that I will clarify that for him.

Amendment 67, if we can get on to that, seeks to weaken the message that this Bill strives to send. People should not risk their lives using unseaworthy vessels—I do not think anyone would think that they should—to reach our shores when they have already reached safety in a country such as France. It puts their lives at risk, and those of Border Force and rescue services. Events in recent months have all too starkly demonstrated the devastating human cost of undertaking these journeys. This provision is just one of a host of measures which aim to deter illegal entry to the UK. It is right that we prioritise protection for the most vulnerable people rather than for those who could have claimed asylum elsewhere.

Parliament has already had an opportunity to scrutinise these measures when they were placed in the Immigration Rules in December 2020. It has been a long-standing practice in place for many years to only accept claims for asylum in person at the individual’s first available opportunity on arrival in the UK. These provisions simply seek to place these long-standing requirements on a stronger statuary footing.

[Lord Paddick (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for his intervention. From memory—and I have to say, no pun intended, that I am finding it difficult to keep my head above water with this Bill—we come on to pushback in a later group. Maybe the Minister might be able to say more when we get to the appropriate group on that issue.

But on this issue, there are lots of things in Immigration Rules that are not in primary legislation, and I do not understand why this particular issue is different. If it is simply to put something that has been for a long time been in Immigration Rules on a more secure statutory footing, why are we not seeing many more Immigration Rules being put on a firmer statutory footing by putting them into primary legislation? This leads me to believe ILPA—that there is some other motivation behind it related to pushbacks, as the noble Lord, Lord Coaker, has said.

But there will be an opportunity to revisit this when we come to the groups debating pushbacks, so at this stage I beg leave to withdraw the amendment.

Amendment 67 withdrawn.

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[Baroness Hamwee (LD)]

My Lords, my name is to a number of amendments in this group—including Amendments 69A, 71A, 71B, 73A and 73B—and they all come from the UNHCR. I had written down not “guardian” but “steward”, but it comes to the same thing—that is, stewardship of the convention. I am not suggesting for a moment that I would be happy—or that it would be happy—to see these clauses remain in the Bill, and I hope I am not too much in “lipstick on pigs” territory, but given that the UNHCR of all bodies has proposed these, I think it right that I speak to them, and I will do so reasonably quickly.

The UNHCR has reiterated that the Bill is fundamentally at odds with the Government’s avowed commitment to uphold the UK’s international obligations under the convention, and its long-standing role as a global champion of supporting and protecting refugees. It has reminded us that three safeguards are essential to any inadmissibility rules. First, they must not operate in a way that denies the fundamental right to seek and enjoy asylum, which is another way of saying a good deal of what has already been said. Secondly, they must protect rights under international law during the refugee process and once a refugee has been recognised. Thirdly, the aim should be to increase access to asylum globally. Clause 15 does not meet those tests; in the interests of time, I will not go through why.

The amendments in my name are to prevent the UK breaching international standards. They would mean that a safe third state must be safe in law—I should put that first—but safe in practice, and that a claim must be considered under the Immigration Rules, not as an optional matter; they broaden the circumstances in which the Secretary of State must consider the application and reduce the risk of an asylum seeker being sent to a country which is not a signatory to the convention and does not respect the rights of refugees under international law. The “connection” would be what most people would regard as a connection in ordinary language, and they define a “relevant claim” as a claim for protective status consistent with the convention. On Tuesday there was a lot of discussion about the importance of the convention as a matter of morality and, very importantly, as law. These amendments relate to both.

On the issue of formal returns agreements, to which the noble Lord, Lord Rosser, referred, Amendment 195 would require a returns agreement before regulations were brought into force. I agree with that but with the condition that the agreements were acceptable. The amendment perhaps begs the question: I would like to think that it would be possible—it would be proper—for Parliament to have a role, which it will in an international agreement, and that amendments that are thought by Parliament to be required are made, so that the agreement is not just imposed.

[Lord Paddick (LD)]

My Lords, there are lots of issues here, but I start by making an overarching comment. A decade or more ago, the Home Office was dealing with many more applications for asylum than now. I am talking about initial decisions, not appeals. It was dealing with them more quickly and more effectively; the backlog was lower; and the successful appeal rate was lower. I try to be a “glass half full” person and usually fail miserably—but enough of my problems. Let me put it this way: the Home Office has proved in the past that it can deal efficiently and effectively with many more asylum applications than it is facing today. The fix for the current problems lies in the staffing systems and processes of our Home Office, not in the legislation or the number of asylum applications.

I have said it before, and I will say it again: the Government are focusing on the wrong things in the Bill and doing nothing to address the things that need to be addressed. This group of amendments is about unfairly and unreasonably reducing the number of asylum applications rather than increasing the capacity of the Home Office to handle them effectively, as it has proved it is capable of doing in the past.

Clause 14 proposes that all claims for asylum from EU nationals must be ruled inadmissible and that, as it is not a decision to refuse a claim but a decision to refuse to consider a claim, there be no right of appeal. A claim can be considered in exceptional circumstances, but the examples given are where the EU state is at war and has suspended the European Convention on Human Rights, or is going off the rails to such an extent that the EU itself is taking action against it for not complying with the standards of human rights expected of a member state.

These exceptional circumstances do not go far enough, as the noble and learned Lord, Lord Etherton, said. We have seen EU states fail to act or take sufficient action to protect minorities. He mentioned Hungary. In 2020, six Polish cities announced LGBT-free zones. It may not necessarily be the case that an EU state, or even a municipality within an EU state, is overtly persecuting minorities, but failing to protect some minorities may make it unsafe for them to be in a particular state and as such may amount to grounds for asylum in the UK. Surely Home Office officials can determine whether any application for asylum has merit, whoever it is made by and whatever part of the world the applicant is from, without blanket bans of this kind in primary legislation. Amendment 68 from the noble and learned Lord, Lord Etherton, would be useful if the clause survives, but Clause 14 should not stand part of the Bill.

Another category of claim the Government want to rule as inadmissible is where the claimant has a connection, however spurious, with a safe third state. It just smacks of: “Let’s invent lots of excuses for rejecting someone’s asylum claim, however far-fetched they may be.”

In relation to the other amendments, if the clause remains part of the Bill, of course a safe third state must be safe—and that means safe for everyone, including minorities. It means that their rights will be protected and that the asylum system is compliant with the refugee convention. Of course the Home Secretary should not be able to remove a genuine refugee to any safe third state—to dump them anywhere in the world, whether they have any connection with that state or not.

On what planet does the following make sense? You establish some kind of connection between an asylum seeker and a safe third state, but you cannot send them there because you do not have a return agreement with that state. However, you still refuse to consider their application for asylum. So what are they supposed to do now?

Another amendment seeks to prevent the following scenario: even if the refugee has family in the UK, they could still be deported to a safe third state—“Sorry, lad, I know your parents are here but you’ve got a connection with Turkey because your grandparents are old and frail and could only make it that far, so off you go”.

The conditions for establishing a connection with a safe third state—we have seen this sort of thing before—look like an awayday board blast, where there are no wrong answers and anything you can think of is uncritically written on a flipchart. Can “Well, we think you should have made a claim elsewhere” seriously be a reason an official can give to rule a claim inadmissible, with no right of appeal?

Clauses 14 and 15 should not be part of the Bill, and we will support the other amendments only if those clauses remain.

I was going to speak to Amendment 76, which seeks to override

“all prior national and international law”,

but there is no one here to speak to it, so I shall decline.

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[Baroness Williams of Trafford (Con)]

My Lords, I am saying that there are a number of ways in which we can seek to secure this—formal, informal, diplomatic and otherwise. I am not saying there is a single solution to returns. Therefore, Clause 15 still needs to be in place.

It might not always be appropriate to apply inadmissibility to all claimants who have travelled via or have a connection to a safe country. The provisions that we have drafted already have flexibility that allows us to consider whether an individual has exceptional circumstances to warrant consideration of their asylum claim through the UK asylum system. As I said, this includes best interests. We also have the family reunion provisions that I mentioned earlier so, if individuals have family members in the UK, they should apply under those provisions. The inadmissibility provisions should not be used to circumnavigate those provisions and create a back door to enter the UK by dangerous means.

Furthermore, if an individual has not been recognised as a refugee, but has been provided with a different form of protection from refoulement, that country is safe for them to be removed to. To define a “safe third State” in the way suggested by the amendments ignores the other forms of protection available to individuals, which ensure that these countries are safe for them to be removed to.

Regarding Amendments 74, 73B, 74A and 75B, the UK should not be obliged to assess the substance of an asylum application where the applicant, due to a connection to a safe third country, can reasonably be expected to seek protection in that third country, or where they have already sought protection in a safe country and have moved on before the outcome of that claim, or where a claim has already been granted or considered and refused. This is a necessary part of achieving the policy aim of deterring those unnecessary and dangerous secondary movements. We are not alone in operating this practice. These amendments ignore the other forms of protection available to individuals that ensure that these countries are safe for them to be removed to. Amendments 75, 75A, and 76 would significantly undermine the aim of these provisions. The provisions as drafted send that clear message for those who could and should have claimed asylum in another safe country to do so.

I commend the spirit of Amendment 76, which would introduce a new clause to strengthen our inadmissibility provisions and deter irregular entry to the UK, particularly where that means of entry indicates that individuals have travelled to the UK via a safe country. I agree with the premise of this amendment—that access to the UK’s asylum system should be based on need and not driven by criminal enterprise. The provisions in the Bill send that clear message. However, this proposed new clause probably goes too far, and would breach our international obligations. It could place individuals in indefinite limbo, which would be against the object and purpose of the refugee convention. The provisions as drafted ensure that individuals are not left in limbo, with their asylum claim neither considered in the UK nor another safe third country. If after a reasonable period it has not been possible to agree removal of the individual to a safe third country, as I said earlier, their asylum claim will be considered in the UK. The introduction of Clauses 14 and 15 as they stand aims to strengthen our position on inadmissibility, further disincentivise people from making dangerous journeys, and encourage them to claim asylum in the first safe country.

I will leave it at that. I hope that noble Lords will be happy not to press their amendments.

[Lord Paddick (LD)]

The Minister said that two issues were widely recognised internationally. One was the definition of a safe third country and the other was on the first safe country principle—that refugees should claim asylum in the first safe country. The United Nations High Commissioner for Refugees asked for the definition, in the amendments, of a third safe country, so it does not agree that it is a widely recognised international definition. The UNHCR also says that it does not recognise the first safe country principle and that there is nothing in international law about it. Does the Minister accept that, even if she says that these things are widely recognised internationally, they are not recognised by the UNHCR?

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[Lord Etherton (CB)]

My Lords, I will speak to my Amendments 82, 84, 86, 90, 91 and 96. I would like to start by taking up the point about the so-called principle specified in Clause 25(2) of the Bill

“that minimal weight should be given to the evidence.”

I am not aware of such a principle. Of course, there can be times when time limits are imposed in a court—and perhaps it can be done by statute—for evidence to be delivered, and if it is not delivered by that time it is excluded. But once evidence is before the court, as the Minister will appreciate, it has to be taken into account even if the relevant evidence—it may be documentary evidence—has been obtained improperly, when it should not have been disclosed or it has been disclosed inadvertently. Once the evidence is there, it is taken into account and given such weight as it is due. We do not have a principle in this country, so far as I am aware, of simply saying that if evidence is late we are not going to have regard to it. That seems to be a denial of justice. I certainly support all those who have spoken against that so-called principle.

I thank the noble Lord, Lord Coaker, for his introduction to the difficulties faced by minority groups, particularly LGBTQI groups, in relation to the giving of evidence. In deciding whether there is good cause for late evidence, or for failure to comply in a timely manner with a priority removal notice and so on, all my amendments—apart from one—put forward that there be, on the face of the Bill, a provision so that the difficulties and particular situations of people who have a protected innate or immutable characteristic must be taken into account. I went into this, your Lordships will remember, on Tuesday in relation to Clause 11, and there is no need for me to repeat it. It has been put very well by the noble Lords, Lord Coaker and Lord Cashman.

Apart from all the difficulties of having discreet, secret lives—particularly in the case of the LGBTQI community—and therefore perhaps not having any evidence as such, seeking information when it is required, and corroboration, from people back in the country from which asylum seekers come poses great difficulties. An asylum seeker will not want to implicate his or her family or friends, because they could suffer as a result. There are all sorts of adverse consequences as a result of conduct that is disapproved of in the many countries that proscribe sex between same-sex couples. There is a combination of a whole variety of things, in addition to all those other points made by people about the difficulty of coming to terms with one’s sexuality.

The same applies for single women. They have many similar problems: the shame of having left an abusive relationship, the shame on the family, the consequences for the family, the clandestine nature necessarily required for those women to come here—and then they may face a male authoritative figure. All these grave difficulties have to be taken into account.

I explained why this ought to be on the face of the Bill, despite the fact that the noble Baroness the Minister said it would all be dealt with in guidance, because, as the noble Lord, Lord Cashman, said, the record of the Home Office in relation to this is not good. I gave the statistics on Clause 11 earlier this week. In 2018, 29% of LGBTQI applicants were permitted asylum, but on appeal, taking the average from 2015 to 2018, nearly 40% of the appeals succeeded. That reality reflects the grave difficulties and the disbelief faced by these desperate people. That is why noble Lords will see in those amendments—apart from one; I will come to Amendment 91—that they are all to do with putting on the face of the Bill the need to take into account, wherever there is a reference to reasonable cause or what is practicable, the particular protected characteristic of the asylum seeker.

The one that is different is Amendment 91, which is one of the two amendments I have to Clause 22. Clause 22 provides for a new Section 82A to be inserted into the Nationality, Immigration and Asylum Act 2002 and provides for “Expedited appeal to Upper Tribunal in certain cases”. For there to be an expedited appeal, the Secretary of State has to

“certify P’s right of appeal”—

that is, the person served with the priority removal notice—as being appropriate

“unless satisfied that there were good reasons for P making the claim on or after the PRN cut-off date (and P’s right of appeal may not be certified if the Secretary of State is satisfied that there were good reasons)”.

What is important is that, whatever the Secretary of State has to be satisfied about, they should be reasonably satisfied. My amendment is to impose a requirement that the Secretary of State can certify the right of appeal under this clause only if satisfied on reasonable grounds, so that there is some principle that can be examined in the light of the particular facts of the case.

[Lord Paddick (LD)]

My Lords, as my noble friend Lady Hamwee explained, Clause 17 has the potential for time limits to be placed on the submission of evidence in support of an asylum claim. I am immediately reminded of the criminal caution in the Police and Criminal Evidence Act, which says:

“You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court.”


There is no time limit, you notice. I accept it is not a perfect analogy, because we have already established that asylum seekers are not illegal immigrants and, as my noble friend Lady Hamwee said, this should be an inquisitorial process not an adversarial one.

In this context, a notice served on a claimant saying something along the lines of “It may harm your claim if you do not provide evidence in support of your claim as soon as it is becomes available” seems reasonable. As in criminal cases, it should be left to the court, or in this case the tribunal, to place whatever weight it thinks appropriate on the evidence based on when it was submitted, and if it considers that the timing of submissions reflects on the credibility of the claimant or not. Placing a deadline for the submission of evidence seems completely arbitrary and unreasonable, hence Amendments 78 to 81. How long it takes to secure, collate, and submit evidence will be different in every case, and may be especially delayed in the case of vulnerable claimants for the reasons we discussed on Tuesday, and the reasons noble Lords have explained this afternoon, hence Amendments 78 and 82. Even if the Government want to instruct officials, why not do this through the Immigration Rules, as has always been done?

The rest of Clauses 17 and 18 seem superfluous. To instruct a judicial body by primary legislation what conclusions it must come to when it is presented with evidence appears unnecessary, unreasonable and unconstitutional. I say that not knowing anything about the constitution, but thinking in terms of separation of powers between Executive and judiciary.

Clauses 19, 20 and 21 relate to priority removal notices. These too set an arbitrary deadline that must be complied with—in this case, after which a person is liable to be removed and deported. I say that, but Clause 20(4) says:

“A priority removal notice remains in force … even if the PRN recipient ceases to be liable to … deportation”.


Amendment 87 asks why that is. I am guessing that it is to avoid having to serve a separate evidence notice.

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[Baroness Lister of Burtersett (Lab)]

My Lords, on that very important point, perhaps the Minister will take back to the Home Office that this Committee would very much like the guidance to be published in draft form in good time so that Members of the House and others can look at it.

[Lord Paddick (LD)]

I am sorry for interrupting, but I am becoming a little confused again, I am afraid, probably because we have been at this for a very long time and it is very late and so forth. Is the Minister saying that the deadline that is set for the submission of evidence will be set on a case-by-case basis, for example, if the applicant is particularly vulnerable? If vulnerabilities come to notice that were not initially brought to the notice of the decision-maker, will the deadline then be adjusted and perhaps extended as a consequence of that? Although there might be general guidance about what the deadline might be in every case, is it movable and adjustable in every case and might it be adjusted further as the case progresses? In which case, why on earth is this part of the Bill?

[Lord Wolfson of Tredegar (Con)]

Let me come to that point in a second. First, let me say that I almost took it as implicit in the request from the noble and learned Lord, Lord Etherton, that the Committee would like to have the guidance, but I have heard the point made, and I will certainly pass it on. I do not want to go over points I have already made, and I think when the noble Lord looks in Hansard, he will see that I have set out quite clearly why, first, we need to have a system whereby, in particular cases, the date can be extended or adjusted, but also, secondly, why that does not undercut the principle of actually having a date and having this structure. However, I am very happy to look again at what the noble Lord has just said. If, having read it, it seems to me that I can add to what I have already said, I will; otherwise, I respectfully direct him to what I said earlier.

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[Baroness Hamwee (LD)]

My Lords, I have put my name to the proposal that Clauses 22 and 23 should not stand part of the Bill. When I first saw the term “expedited appeals”, my antennae twitched. It sounds such a benign and helpful term but then so did “detained fast track”—the accelerated process for considering asylum claims introduced in 2002, involving detention immediately after the asylum screening interview, which was followed shortly by the substantive interview, with a decision the following day and two days to appeal. The High Court found that the DFT, as operated, carried

“an unacceptably high risk of unfairness”

to vulnerable or potentially vulnerable applicants, and to that extent it found it to be unlawful, and the Home Office eventually suspended it. Expedited appeals are not the same but some of the issues are really quite similar.

As we have been discussing, the Bill of course provides for priority removal notices to be served on anyone liable for removal or deportation; we have discussed the cut-off date for the provision of evidence. However, it does not set out the factors that may lead to a PRN being issued. That is left solely to Home Office guidance. I support what the noble Lord, Lord Coaker, just said about needing to see guidance—but only so far because guidance, by definition, can be changed and although we may be reassured in February 2022, come February 2025 things might look quite different, with the same Government or another Government producing rather different guidance.

Listening to the previous debate, I was concerned that for an appropriate date to be set, the Home Office needs to know whether somebody is vulnerable, but it will know that only after the event of the notice. I understand the difficulty of trying to start without a starting point, which is the point that the Minister was making. Without a date, you cannot look further, but the extension of that is important. I found it quite difficult to follow all that. I am mentioning it now because it is part and parcel of the same issue and certainly Hansard will require careful reading.

The PRN will remain in force until 12 months after the cut-off date or exhaustion of appeal rights. We have talked about whether or not there is a principle. Clause 22 provides for an expedited appeal route for appellants who have been served a PRN and have made a claim on or after the cut-off date but while the PRN is still in force. In that circumstance, the Secretary of State may “certify”—an interesting term in itself—that any right of appeal against a Home Office refusal will be to the Upper Tribunal instead of the First-tier Tribunal. The Secretary of State can also certify that she or he is satisfied that there are good reasons for making the claim on or after the date. I cannot think of an alternative to what is probably an inappropriate term about being judge and jury in your own case, but I think noble Lords will understand what I mean.

The result of an appeal being certified is that one tier of appeal—the First-tier Tribunal—is lost. Under the Bill, the rules must provide for expedited appeals in the Upper Tribunal to be determined more quickly than an ordinary appeal in the First-tier Tribunal and allow for the Upper Tribunal to make an order that the expedited appeals process may—I stress “may”—not apply

“if it is satisfied that is the only way to secure that justice is done in the case of a particular expedited appeal”.

When someone is subject to the expedited process, Clause 23 provides that any other appeals they may have, for instance

“in respect of protection and human rights claims … deprivation of citizenship … EU citizens’ rights”

and so on, are dealt with as a related expedited appeal.

Ousting the jurisdiction of the Court of Appeal, and so prohibiting an appeal from a first-instance decision, is clearly a significant matter. It would give no one the right of appeal to the Court of Appeal and, necessarily, not to the Supreme Court afterwards either. As we have discussed, the appeals concerned involve international protection rights, human rights, European Union and EEA citizens’ rights and the deprivation of citizenship, all areas where the UK has bound itself to abide by international agreements. For such a fundamental right as the right not to be sent back to a country where one is at risk of persecution to be excluded from an onward appeal to the Court of Appeal—even if the decision of the Upper Tribunal contains an error of law or a breach of natural justice—is extraordinary. This is not a criticism of the Upper Tribunal in any way; it is just not how things should be done. Removing Clauses 22 and 23 would leave the existing appeals structure in place.

How will one challenge Upper Tribunal decisions if these clauses stand? My noble friend made a caveat about the use of “constitutionality” but I think that it applies here, as well as on the impact on the rule of law. The Constitution Committee of your Lordships’ House said in its report:

“The House may wish to consider the effect of clause 23 on the functioning of the appeals process and consequently on access to justice.”


That is quite strong stuff for a Lords committee.

[Lord Paddick (LD)]

My Lords, I apologise but, in the war of attrition that this Bill has become, we seem to have lost any contributions other than from the Liberal Democrats and the Labour Front Bench.

Bearing that in mind, I will add to what my noble friend said rather than repeat anything she said. This clause smacks of the Home Office trying to remove or deport people before they have had a reasonable chance to appeal against a removal or deportation decision. No doubt it is embarrassing when repeated stories emerge of government charter flights taking off almost empty because the courts ruled that the majority of those with a seat on the plane should not be deported, but the answer is not to deport them before they have a reasonable chance to put their case before the courts. The answer is to improve the efficiency and effectiveness of the Home Office to ensure that there is a cast-iron case for deportation that cannot be overturned in the courts at the last minute. Yet again, the Bill focuses on the wrong solution to the problem.

I am sure the Minister will agree that as the Home Office becomes better at making its decisions and more and more appeals are turned down, as opposed to the current situation where the majority are accepted by the tribunals, there will be fewer appeals as lawyers say to their clients “Look at what’s happening now. There’s absolutely no point in appealing.” That is the answer to this problem, not Clauses 22 and 23.

[Lord Rosser (Lab)]

My Lords, the Bill’s system of penalisation includes curtailing appeal rights, as set out in Clauses 22 and 23. These clauses create an expedited appeal route for those who have been served with a priority removal notice and who have provided evidence or a claim after the PRN cut-off date. Most importantly, the right of appeal would be limited to the Upper Tribunal. However, where a person provides a good reason for lateness, they will not be subject to this clause.

Clause 23 wraps certain other appeals a person may have into the expedited appeals process, further restricting appeal rights. The Government say the reason this clause is needed is prevent delaying tactics, remove incentives for late claims and protect the system from abuse. It is probably fair to say that in this Bill, where so much of it is driven by the party-political considerations of the Government, they will be part of the so-called lefty-lawyers amendments—we have one or two others—who seem to have become the bête noire as far as this Government are concerned.

As has been said, I have added my name to the clause stand parts to Clauses 22 and 23, to start, at least, to probe concerns that have been raised about these provisions. The Law Society, the Public Law Project and Justice have recommended that these clauses be removed from the Bill. The UNHCR has raised legal concerns. I suggest that these are not concerns the Government should take lightly.

The UNHCR has said the expedited appeals process, as designed under Clause 22, risks “miscarriages of justice”. Its legal observations agree, as do we, that accelerated processes can be appropriate for

“manifestly unfounded or repeat claims, as long as they are sufficiently flexible and contain adequate safeguards to ensure that they can be determined fairly and justly.”

The UNHCR is, though, entirely clear that appeals

“should not be accelerated … for reasons that are unrelated to their merits.”

The widespread expediting of appeals under these sections is, in the words of the UNHCR, “arbitrary” and

“unrelated to considerations of justice or efficiency.”

It risks people having their human rights violated as a result of a truncated appeals process for asylum claims. The incorrect decision can cost an individual their safety, security and livelihood.

Clause 23 is particularly troubling on the “arbitrary” point as it joins certain pre-existing appeals to the expedited process, even where they pre-date the priority removal notice and were made entirely on time. I ask the Government: what in this clause actually targets the expedited process on vexatious and unmerited claims? That is the reason Ministers give for why the clause is needed but, as far as I can see, it is not what the clause as drafted achieves.

I will make a couple of further points. First, the Public Law Project has said that making a system quicker is patently not the same as making it efficient. In order to be efficient, a system must move both more quickly and more accurately.

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[Baroness Hamwee (LD)]

My Lords, I have Amendment 94A in this group. I am sorry that I could not respond to the Minister on the previous group, but I am sure we will come back to that. I was going to observe that the Chamber seemed largely to have cleared, possibly because other noble Lords could not bear this Bill any longer today, but some noble Lords have rejoined us.

It is clearly better that legal aid is available than not, but I am aware, as my noble friend is, of the shortage of provision and some of the problems here. I would say that it is not a matter for today, but actually it probably is. It is very significant, because the words in the Bill will not provide the advice. The Minister has referred two or three times very confidently to the legal aid offer; we are concerned to ensure that that offer has substance.

I have heard over the years of the difficulties of solicitors—if you can find one—advising and taking instructions in immigration removal centres, with the restrictions there on time, of 30 minutes eaten into by the client having to be fetched and then returned. I do not need to say again, but I will in one sentence, that the client often needs a lot of time over a period to tell his or her story.

My amendment seeks to understand how the Government have landed on seven hours. The Minister gently chided me for the use of the term “arbitrary” before. I will acknowledge that my proposal of 20 hours is arbitrary, but it is my way of probing why the Bill provides for seven hours. I asked ILPA whether that would be sufficient, and the reply was:

“I do not think seven hours of legal aid is sufficient to advise on the notice, the person’s immigration status, the lawfulness of removal, and immigration detention. The immigration system is complex, and the Bill makes it more complex through the expedited processes, priority notices, and new definitions/standards … It is also of concern”


that the Bill

“would allow a power to alter that 7 hour time limit.”

There must have been evidence for coming to the seven hours. If that is so, what evidence would the Minister apply to reduce that figure—or indeed extend it? ILPA says it does not

“have a sense as to the specific number of hours needed for this advice, as it would be so case-specific,”

which is entirely understandable,

“including the immigration and procedural history of the case, novelty of any legal arguments, number of bases on which to raise a claim, the legality of detention”

and so on. So I hope that the Minister can flesh out this provision in the Bill so we can understand what the Government think can be achieved with the seven hours of scarce legal aid.

[Lord Paddick (LD)]

My Lords, we support the amendments in the name of the noble Lord, Lord Dubs, for the reasons my noble friend Lady Ludford has explained. As my noble friend Lady Hamwee has explained, Amendment 94A is not to replace one arbitrary number with another but to probe how much legal aid should be provided in such cases. The Minister described, in a previous group, how cases are of different complexity and how people will be given more time to secure and collate evidence if they are from a vulnerable background. For example, if they come from an LGBTQIA background, they are less likely to be able to acquire evidence quickly, and therefore, the date on the notice they are given would change even during the process. Surely that points to the fact that each and every case is different and will require a different amount of legal aid, depending on how much aid is needed to advise in each particular circumstance. I understand that people who are in this situation do need legal aid, but surely the number of hours should be as case-specific and flexible as the deadline date of any notice for them to submit their evidence.

[Lord Rosser (Lab)]

We too support the amendments we are debating. I suppose, in a sense, this clause is a rare section of the Bill, in that we welcome it but desire it to go much further, as has already been said. Amendment 94A is a probing amendment, but it is a very valid one, because, clearly, the Government have come to the view that the seven hours of support that will be available will be sufficient.

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[Lord Etherton (CB)]

I speak in support of the amendment in my name in relation to Clause 26, Amendment 98. It is that

“The Secretary of State may not give … certification if the appellant claims to have a protected characteristic … which is innate or immutable, and that the characteristic is relevant to the appeal.”


Cases in which the appellant is an asylum seeker who has an innate and immutable protected characteristic that is relevant to the appeal are not appropriate for the very short timescale set out in Clause 26(3). I think the noble Lord the Minister himself acknowledged, and the noble Baroness the Minister accepted earlier, that many of these cases raise difficult issues and that guidance that we wait to see will be issued to provide assistance. The paradigm case again is that of the LGBTQ+ asylum seeker. Establishing whether or not they are in fact LGBTQ, the adequacy of the evidence in support on that issue—whether or not there is a genuine fear of persecution because of that characteristic, whether what they have done in relation to pursuing their claim has been reasonable, even if it was not always in compliance with the required time limits—makes their appeal inappropriate for an accelerated appeal.

Once again I say, as others have said, that this conclusion is reinforced by the significant proportion of successful appeals that have been brought by LGB refugees. That is something we simply cannot ignore. Nearly 40% of appeals taken in the period from 2015 to 2018 succeeded.

[Lord Paddick (LD)]

My Lords, for the reasons I explained in a previous group, accelerating appeals processes is not the solution to the last-minute successful appeals against removal or deportation. Rather, it is improving the efficiency and effectiveness of the Home Office. Clause 26 is another clause with the wrong solution to the problem, and while Amendments 97 to 99 seek to limit the damage that accelerated appeals might cause, it is more lipstick on more pigs.

To my shame, I am struggling to keep my head above water on this Bill and asking that Clause 27 does not stand part of the Bill does not go far enough. Already the Home Secretary can certify that the decision to remove or deport can be appealed against only once the claimant has been removed or deported, which makes such an appeal more difficult. We should have tabled an amendment to remove that power, let alone Clause 27, which proposes to go one step further, allowing the Secretary of State to certify that a claim cannot be appealed against at all if she thinks it is clearly unfounded. That should be a decision for the tribunal and not the Executive.

[Lord Rosser (Lab)]

In this group, I have the Clause 26 stand part amendment, and Clause 26 requires the Tribunal Procedure Committee to create a fast-track route for certain appeals made from detention. The accelerated process would apply where the Secretary of State “considers” that an appeal brought in relation to the decision would

“likely be disposed of expeditiously.”

Of course, that raises the question of the basis on which the Secretary of State will decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously. Will it be done on a whim? Will it be done on the basis that we need to speed things up and this may be the way to do it? Will they be getting legal advice on whether they should consider that it is likely to be disposed of expeditiously? What happens if they do decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously, and they then find that it cannot be disposed of expeditiously? What is the redress in that situation?

The Explanatory Notes state:

“This clause aims to establish an accelerated route for those appeals made in detention which are considered suitable for a quick decision, to allow appellants to be released or removed more quickly.”


As far as the Explanatory Notes are concerned, it is being done for the highest of motives, and nothing to do with simply trying to speed up the process.

The Law Society, Justice, the UNHCR and the Public Law Project have recommended that the clause be removed from the Bill. They raise that the fast-track system largely replicates, as has been said, a system that was already found to be unlawful in 2015 in a Court of Appeal ruling.

We support the amendments and concerns raised in this group, but I intend to speak only to the amendment in my name, which is to oppose Clause 26 standing part of the Bill. The concerns are very clear. As I said, various organisations have recommended that the clause be removed from the Bill. Their basis for saying so is that it amounts to a new detained fast-track procedure that was found to be unlawful in 2015 due to being “structurally unfair”. The Court of Appeal described the timetable for such appeals as

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It held that the policy did not sufficiently appreciate

“the problems faced by legal representatives of obtaining instructions from individuals who are in detention”,

nor did it

“adequately take account of the complexity and difficulty of many asylum appeals”

and

“the gravity of the issues that are raised by them”.

Since that ruling, the Tribunal Procedure Committee has repeatedly taken the position not to introduce specific rules in relation to cases where an appellant is detained. In its report of March 2019, the TPC concluded that

“a set of specific rules would not lead to the results sought by the Government. If a set of rules were devised so as to operate fairly, they would not lead to the increased speed and certainty desired.”

Following the clear and somewhat damning court ruling and the position of the TPC, the Government’s response has been, as we now see, to legislate to reintroduce a fast-track procedure by forcing the TPC’s hand and requiring it to create one.

The questions for the Government are fairly simple. What is it about this scheme that is significantly structurally different from the scheme that was found to be legally unsound? What about this scheme will prevent it having a timetable

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity”?

Why, and on the basis of what evidence, do the Government disagree with the TPC when it says that such rules should not be brought in since they cannot both operate fairly and achieve the desired result of speed?

One wonders whether the Government are risking further judicial proceedings in replicating a scheme that has been found to be unlawful or, indeed, whether they would care too much anyway if there were such future judicial proceedings. I await the Government’s response.

Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Rosser (Lab)]

I say to my noble friends behind me that I will resist the temptation to make political comments on the Bill. After all the days we have had in Committee and on Report, I am sure they will understand why I do not wish to go down that road.

I thank the Minister, the noble Baroness, Lady Williams of Trafford, and the noble Lords, Lord Wolfson of Tredegar and Lord Sharpe of Epsom, for all the work that they have so obviously done on this Bill. I also thank them for the meetings we have held and the changes that have been secured through government amendments or government support for amendments.

I also thank my noble friends Lord Coaker, Lord Ponsonby of Shulbrede and Lady Chapman of Darlington. As the Minister reminded us, my noble friend Lord Kennedy of Southwark has also been involved, as has been my noble and learned friend Lord Falconer of Thoroton. We seem to have had a fairly large Front Bench on this side of the House, and I am extremely grateful to all of them for the work that they have done.

I too thank the Bill team. Everything that the Minister said about them we would certainly endorse and wish to be associated with. They have been extremely helpful, and we have appreciated that. I also thank the many outside organisations with an interest in the terms of this Bill for the briefings that they have given us, both written and verbal. That has been extremely helpful too.

Talking of help, I would like to thank for the vital and invaluable work they do colleagues in our office here in the Lords, particularly Grace Wright, who has been a key figure and has certainly kept me on the straight and narrow. I am quite sure that any mistakes I have made have been nothing to do with her; she has prevented me making an awful lot as it is.

The Bill has been improved by amendments that this House has made and, in some cases, by resisting amendments to which this House has not agreed. As the Minister said, it now goes back to the Commons. Like her, I too wait to see what the Commons will now make of this Bill as amended by your Lordships.

I again thank everybody whom I have mentioned, and I am quite sure that there are others whom I should have mentioned but have not done so. For that, I apologise.

[Lord Paddick (LD)]

My Lords, I remember looking at this 307-page Bill—or at least it was 307 pages to begin with—in August and wondering how on earth to tackle it. I was reminded that the way to eat an elephant is one piece at a time, which is the approach we took. This was about five Bills stapled together, except the PPO could not staple them together because it was too big. The Bill returns to the other place considerably improved, although you cannot make a silk purse out a sow’s ear—these are separate metaphors; I am not mixing them—or should I say a boar’s ear in these days?

I shall not resist what the Minister has said about the Bill. As far as we on these Benches are concerned, the existing legislation to control protest was adequate, and the measures that we have removed from the Bill were not necessary in the first place. The majority of the police consider that a lack of police officers is the limiting factor when it comes to policing of protests rather than a lack of legislation.

I would normally thank the Minister and the Bill team for their engagement, but, certainly, I am not alone on these Benches, at least as far as the home affairs side of things is concerned, in feeling that the Government have not reached out to us as much as they could or should have done. None the less, we have all been in this together over a considerable period, and I am grateful for the time that the Government have given in allowing us to debate these issues.

I thank the Official Opposition, both the leadership and Back-Benchers, the Cross- Benchers, non-affiliated Peers and the Greens for their support and co-operation. In particular, I thank Elizabeth Plummer and Grace Wright for their invaluable help on the Bill, as well as all the outside organisations which helpfully provided us with briefings. We would not have done any of this without that help, and we hope that the Government will see the improvements that we have made to the Bill as improvements when it is considered by the other place.

[Lord Cashman (Lab)]

My Lords, as other noble Lords have said, the Bill has been much improved. I pay particular thanks to the noble Baroness, Lady Williams of Trafford, for working over six years with me and my friend, the noble Lord, Lord Lexden, in widening the pardons and the disregards for historical homosexual offences, including in the Armed Forces. It is truly historic when a state apologises for what it has done and reaches back over 500 years. It is the end of a six-year campaign that the noble Baroness, Lady Williams, has been an active part of. I cannot thank her and the Bill team enough, and indeed colleagues and the team in the Armed Forces. I also put on record our thanks to Professor Paul Johnson, the country’s leading expert on this. Finally, it might have been a six-year campaign, but some of us have campaigned for more than 33 years, not for ourselves but so that injustices can at last be put right.

Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Laming (CB)]

My Lords, perhaps I may make three quick points in support of this important amendment. First, we all accept that short sentences are extremely expensive to manage and expensive to our society, and we ought to do our best to provide alternatives to them. They are also expensive in other ways because they introduce often naive offenders to much more serious crime. Secondly, short sentences are extremely disruptive to the individual concerned. They often lose whatever jobs they have and a whole range of things that are important in their life. Thirdly, restorative justice is a learning experience. Would that there were other parts of the criminal justice system that I could say with confidence were a learning experience.

Restorative justice is the opportunity for an offender to reflect carefully on what has happened as a result of their behaviour and on why it is important that they learn from that experience and change their way of life. This is an important amendment that I hope the Government will take seriously.

[Lord Paddick (LD)]

My Lords, I remind the House that at one stage in my police career I was the lead for the Metropolitan Police on restorative justice, working with Professor Larry Sherman. The evidence from that experience and other academic studies shows that the benefits to victims, in terms of allaying fear and victim satisfaction, and to perpetrators, in terms of engagement with the criminal justice process, and by being confronted, as the noble Lord, Lord Laming, has just said, by their offending behaviour, and in terms of reducing recidivism, are unequivocal.

The only objection to the amendment would be political, because restorative justice is wrongly perceived by those who do not understand the process as going soft on offenders; it is the opposite. I agree with the noble Lord, Lord Laming, about short sentences. However, on the point made by the noble Lord, Lord Cormack, it does not necessarily have to be an alternative to prison in very serious cases. The important outcomes are victim satisfaction and the offender having to confront their offending behaviour.

The Minister may argue that people get a long time in prison in which to reflect on their wrongdoing. However, a colleague of mine did some research on street robbery and went to a young offenders’ institution to interview those who had been convicted and incarcerated for that offence. Many of those he spoke to did not understand why they were in the young offenders’ institution. The process was so detached from them—they just sat at the back of the court while other people spoke and dealt with the case, without their involvement at all. They genuinely did not understand why they were in prison. That is why restorative justice is important.

The question is: are the Government going to be led by the evidence and support this amendment, or are they going to object to it, based on misconceptions?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, support the amendment. It is modest and worth while, and is another step down the road.

I remember that the noble Lord, Lord McNally, introduced the phrase restorative justice into the statute book. I cannot remember which piece of legislation it was but at that point he spoke perceptively when he said that it was going to be a long road to get restorative justice embedded within the criminal justice system, whether in terms of probation, YOTs or prison. He was right and the necessity for the amendment proves that because the noble Baroness, Lady Meacher, gave a number of examples, including where the funding or initiatives have stalled and the momentum with restorative justice has been lost. From memory, the initial introduction of restorative justice was through a separate funding stream for YOTs to use these programmes. So I very much support the amendment. It needs constant activity and oversight by a Minister to get the restorative justice programmes embedded in the system as a whole.

One reason why what I am saying is perhaps more relevant than what some noble Lords have said is that I have some scepticism on the issue. I am happy to have a cup of tea with the noble Baroness, Lady Meacher, to express my scepticism. While I support the amendment, it requires a long-term programme, and it is for the Government to make sure that that programme is implemented.

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[Lord Paddick (LD)]

My Lords, the Minister seemed to suggest that, in any form of restorative justice, a victim might be compelled or forced to engage in the process. I think that is what he said. Can he reassure me that it was not?

[Lord Wolfson of Tredegar (Con)]

I was saying absolutely the opposite and, if it came out wrong, it came out wrong. The whole point of restorative justice is that the offender and the victim have to consent. That is the point which I was making about crimes of sexual violence. The victim there should not feel under any compulsion or pressure to engage in restorative justice if they do not want to. Victim choice and free-will participation is at the heart of restorative justice. I hope that I have made that very clear.

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[The Lord Bishop of Gloucester]

My Lords, I speak in place of my right reverend friend the Bishop of Derby, who sadly cannot be here today. She and I support this amendment, to which she has added her name. I declare her interest as vice-chair of the Children’s Society. These are her words.

In Committee, my right reverend friend the Bishop of Durham spoke in the place of my right reverend friend the Bishop of Manchester. I will not repeat all that was said, but I will reiterate a few fundamental points as we consider this amendment. As a Church living and working in every corner of this nation, we support families and children, often in the most vulnerable of contexts. We have seen the devastating consequences when children are coerced and exploited, including through serious violence. Those consequences have ripple effects through not only the life of that child but the wider community. Visiting young offender institutions, I am struck by how many of these children and young people are victims first. Their stories could have been very different if intervention had occurred earlier. They have been groomed and coerced in the same way as children groomed for sexual exploitation; as such, they should be treated as victims. They need support rather than the further trauma of being charged and prosecuted.

I share with noble Lords the story of a young person supported by the Children’s Society which illustrates how many victims of child criminal exploitation are not recognised as such. Bobby—not his real name—aged 15, was picked up with class A drugs in a trap-house raid by the police. Bobby had been groomed, exploited and trafficked across the country to sell drugs. After his arrest, he was driven back to his home by police officers, who had questioned him alone in the car and used that information to submit a referral through the national referral mechanism, which did not highlight Bobby’s vulnerability—instead, it read like a crime report. Bobby had subsequently been to court in Wales and, because his referral to the NRM failed and his barrister did not understand the process, he was advised to plead guilty, which he did.

At this time, he was referred to the Children’s Society’s “Disrupting Exploitation” programme. With its help, Bobby challenged the NRM decision and worked to ensure that he was recognised as a victim instead of an offender, enabling him to retract his plea of guilty. The Children’s Society was able to work with Bobby, his family and the professionals around him to ensure that they recognised the signs of exploitation and how it can manifest.

But for many young people who are criminally exploited, that is not the case. Many will be prosecuted and convicted as offenders, while those who groomed and exploited them walk free. Agencies that come into contact with these children are not working to the same statutory definition of what constitutes child criminal exploitation.

What this amendment hopes to achieve is for statutory services to recognise that these children have not made a choice to get involved in criminal activity. I whole- heartedly agree that local multiagency safeguarding arrangements are key to responding to child exploitation. However, we need a clear, national definition and understanding of the types of child exploitation that they must safeguard against. Front-line agencies all agree: there is no evidence that the system as it stands is working consistently to protect these children from exploitation.

We are committed to the flourishing of all people. That includes children and young people from the most marginalised and disadvantaged circumstances—those for whom real choice is out of their grasp. We must do all within our power to give hope to victims and dare to dream of a different future for these children.

[Lord Paddick (LD)]

My Lords, in Committee I recalled my own experience of visiting the only young offender institution in Scotland, where the governor told us that every young person in her institution had suffered multiple adverse childhood experiences, or ACEs. These are potentially traumatic events that occur in childhood and include experiencing violence, abuse or neglect, particularly head trauma; witnessing violence in the home or community, something that is becoming all too common; and having a family member attempt or die by suicide. Also included are aspects of the child’s environment that can undermine their sense of safety, stability and bonding, such as growing up in a household with substance use problems, mental health problems or instability due to parental separation or household members being in prison.

ACEs also make children particularly vulnerable to criminal exploitation and it is important that this is recognised in statute to ensure that a trauma-informed approach is taken to child victims of criminal exploitation, rather than a criminalising, punitive approach. This amendment provides that statutory definition and we strongly support it.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to the noble Lord, Lord Rosser, for setting out the case for the amendment and to all noble Lords who took part in this short debate. I wholly agree that the targeting, grooming and exploitation of children who are often the most vulnerable in our society for criminal purposes is deplorable. This Government are committed to tackling it.

Before I start, I say to the noble Baroness, Lady Jones of Moulsecoomb, that the Government are not complicit in crime. I remember CHIS being debated quite extensively in your Lordships’ House. They are subject to significant and stringent safeguards, so I think that we can leave that there.

This amendment seeks to establish a statutory definition of child criminal exploitation. As I indicated in Committee, the noble Lord, Lord Field of Birkenhead, the noble and learned Baroness, Lady Butler-Sloss, and Maria Miller MP undertook an independent review into the Modern Slavery Act 2015, the findings of which were published in May 2019. The definition of exploitation in Section 3 of the Act was explored as part of this review in response to calls that it should be amended to explicitly reflect new and emerging forms of exploitation, such as county lines.

The review heard evidence from the CPS, which warned against expanding the scope of the meaning of exploitation or defining exploitation so precisely that it would lack flexibility when applying the legislation to a changing profile of criminal conduct. The authors of the review agreed and recommended that the definition should not be amended, as it is sufficiently flexible to cover a range of circumstances, including new and emerging forms of modern slavery.

We agree that front-line practitioners need to have a clear understanding of child exploitation; the noble Lord, Lord Rosser, made these points very well. That is why child exploitation is already defined in statutory guidance, including the Keeping Children Safe in Education and Working Together to Safeguard Children statutory guidance. It is also set out in non-statutory practice documents for those working with young people, such as the Home Office Child Exploitation Disruption Toolkit and the county lines guidance.

We recognise that the vast majority of child criminal exploitation cases occur in the context of county lines. That is why the Home Office is providing up to £1 million this financial year to the St Giles Trust to provide specialist support for under-25s and their families who are affected by county lines exploitation. The project is operating in London, the West Midlands and Merseyside, which are the three largest exporting county lines areas. We also continue to fund the Missing People’s SafeCall service. This is a national confidential helpline service for young people, families and carers who are experiencing county lines exploitation.

I listened carefully to the right reverend Prelate the Bishop of Gloucester, who made some powerful points. She mentioned the Children’s Society. I should point out that the Home Office is funding the Children’s Society’s prevention programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, modern-day slavery and human trafficking on a regional and national basis. This has included a public awareness campaign called “Look Closer”, which started in September. It focuses on increasing awareness of the signs and indicators of child exploitation and encourages the public and service, retail and transport sector workers to report concerns to the police quickly.

Back to county lines and drugs. They devastate lives, ruin families and damage communities. That is why this Government have recently introduced a 10-year strategy to combat illicit drugs using a whole-system approach to cut off the supply of drugs by criminal gangs and give people with a drug addiction a route to a productive and drug-free life. Through the strategy, we will bolster our flagship county lines programme, investing up to £145 million to tackle the most violent and exploitative distribution model yet seen.

Clearly, we are all in agreement that tackling child criminal exploitation must be a priority. I have set out some of the steps that the Government are taking to do just that. However, the Government remain unpersuaded that defining child criminal exploitation in statute would aid understanding of the issue or help such exploitation. As I have indicated, we should pay heed to the conclusions of the independent review of the Modern Slavery Act, which commended the flexibility afforded by the current definition of exploitation. For these reasons, I ask the noble Lord to withdraw his amendment.

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[Baroness Jones of Moulsecoomb (GP)]

I reassure noble Lords that I will not be speaking on every amendment today, but I regret that all those that we have discussed so far, including this one, will not go to a vote. That is a real shame, because they are so sensible.

I congratulate the noble Lord, Lord Ponsonby, on tabling the amendment to which I have put my name. I support all the amendments in this group, not just Amendment 104C. The criminal justice system is hugely distrusted by survivors of sexual violence, based on the way they are treated when they come forward to make a complaint. There have been some important steps forward over the years, but trust is still far lower than it needs to be for survivors to come forward, go through the whole criminal justice system and have their lives pored over. Granting the right to complainants to be represented by a lawyer in an appeal to adduce evidence on questions of sexual conduct would be an important leap forward. The complainant is seen as a neutral third party with no particular legal rights, rather than someone deserving legal protection and representation, and this really has to change.

[Lord Paddick (LD)]

My Lords, my noble friend Lord Marks of Henley-on-Thames is leading for us on this group, but I want to speak on Amendment 107C. I was commissioned by the then Commissioner of the Metropolitan Police, now the noble Lord, Lord Blair of Boughton, to conduct a review of rape investigation in the Metropolitan Police, working together with Professor Betsy Stanko OBE.

At that time, the Metropolitan Police had specialist rape investigation units. Their performance was mixed, but they were considerably better than the experiment in community policing that was being conducted in one part of London. Small teams of detectives were allocated to each part of the borough to investigate all crime there, including rape and serious sexual offences. In addition to being overwhelmed by large numbers of more minor criminal investigations, they lacked the experience and expertise of officers who specialise in rape and other sexual offences.

I know from practical experience on the ground within the police service that specialist rape and serious sexual offences units provide much better outcomes for the victims and survivors of these types of crime. I doubt that legislation such as this amendment can override the operational independence of chief constables, but the principle is right and the Home Secretary, the College of Policing Limited—we will come to that in an upcoming group—HMICFRS and police and crime commissioners should all exert pressure on chief constables to ensure that they are established.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we support all the amendments in this group. First, I will consider Amendment 104B. As explained by the noble Lord, Lord Ponsonby, this amendment would authorise a special measures direction to enable videorecording of cross-examination of complainants in criminal proceedings for sexual offences or modern slavery offences, in order to enable their evidence to be given remotely.

This is a sensible measure for the protection of witnesses not only from alleged perpetrators but from the trauma of giving evidence in these difficult and painful cases. We have heard many times in debates on this Bill and on the Domestic Abuse Act how painful an ordeal giving evidence is likely to be. In the absence of a special measures direction, complainants who are witnesses have to give evidence before strangers, often in the presence of their assailants or exploiters and often under hostile questioning, to relive some of the most painful experiences of their lives. Nor should we forget how, in these cases, recording the evidence of complainants might well be the very best way of securing truthful and accurate evidence so that courts might be better placed to do justice than if they had to rely on the live oral evidence of very frightened and intimidated witnesses.

We also support Amendment 104C in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Jones of Moulsecoomb, because we have heard that Section 41 applications, if granted, permit the most intrusive and personal questioning of complainants about their previous sexual history. Such questioning might sometimes legitimately be regarded by a court as necessary in the interests of justice, but even when that is the case it nevertheless involves a gross invasion of the privacy, the sense of decency and the perceived rights of the complainant. The noble Lord and the noble Baroness are entirely right to seek the protections for the complainant that the amendment involves: the right to take part in the application or not at her choice, because it is generally a woman’s choice; to be legally represented; and to have a right of appeal against a direction admitting questioning or evidence of previous sexual conduct.

These Section 41 applications and the fear of the questioning they involve have been a reason for the large numbers of sexual offences going unreported or unprosecuted, as complainants are not prepared to go through the hell of facing such cross-examination and they pull out of cases for fear of it. They should be entitled to significant legal protection, just as if they were parties, when such an important issue for their personal integrity is considered by the courts. The protections proposed in the amendment are fully justified.

Finally, we support Amendment 107C on rape and serious sexual offences units—the so-called RASSO units—for the reasons given by the noble Lord, Lord Ponsonby, on behalf of the noble Lord, Lord Coaker, and by my noble friend Lord Paddick. I will try not to repeat the points he made.

Historically, there has been a problem, which we should not seek to deny, in ensuring that police forces treat rape and serious sexual assault with the importance these offences merit. It might be that the situation has improved, and I have no doubt it has. In most forces, victims are treated sympathetically, with tact and care, and derive support from the officers handling their case. However, the public, and women in particular, still lack confidence in the treatment they are likely to and do receive from the police if they are victims of sexual assault. This is one of the factors again driving the low rate of reporting and prosecutions, and the high rate of the withdrawal of complaints. The noble Lord, Lord Ponsonby, gave us the figures, with which we have become familiar.

Specialist units are likely to concentrate expertise and experience of dealing with rape and serious sexual offences in the hands of those who really know about them. This amendment concentrates on the specialist training of the staff in such units. That is critical. Such units have the potential to improve the evidence-gathering process and ultimately, one would hope, the reporting and the prosecutions of offences and the conviction rates, which, as we know, are appallingly low.

All the amendments in this group identify serious issues and propose practical, worthwhile and achievable solutions. In respect of each of them, I suggest it would be helpful for the Government simply to accept them or to come back with alternatives to similar effect at Third Reading.

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[Lord Paddick (LD)]

My Lords, the noble Baroness, Lady Fox of Buckley, talked about demonising protest—I bet she is looking forward to Monday. The noble Lord, Lord Walney, talked about exclusion zones around Parliament; there are significant powers to protect Parliament from this sort of thing.

As the noble Lord, Lord Coaker, has explained, this amendment is a significantly improved version of the one considered in Committee, with numerous safeguards. Unlike the noble Baroness, Lady Fox of Buckley, I am “glass half full” man: I think that the safeguards here are actually quite significant, in that it requires the consent of the leadership of any school affected or of the NHS body responsible for any vaccination centre affected and, in addition, of the local police chief. Generally speaking, the police are very averse to making political decisions and siding with one particular protest group against another, so that is a significant safeguard. It also requires the consent of the local authority leader, which is another significant safeguard. The potential for selective protection orders based on the issue being protested about—the one the noble Baroness raised in Committee—is therefore significantly reduced.

In addition, contrary to what the noble Baroness said, the statutory duty to consult the public on the order is not waived at all but can take place concurrently with the order taking effect, if the matter is urgent. It also cannot last more than 12 months; the initial grant is for six months, and it can be extended only once. If only the Government were to take such a reasonable approach to the renewal of orders in other aspect of the Bill.

In the light of recent events such as the invasion of the test and trace centre in Milton Keynes last month, we have seen the importance of such orders and the need for the police to secure intelligence and take action to prevent such interference with the vaccination effort, which does not seem to be going away any time soon. There is ample recent evidence of the need for this amendment, and we support it.

[Baroness Williams of Trafford (Con)]

My Lords, I start by joining the noble Lord, Lord Coaker, in deploring the anti-vaxxers who stood outside my right honourable friend Sajid Javid’s house. I deplore it every time they disrupt our public services such as schools and hospitals. More recently, they have taken part in some very disruptive and abusive activity. On the point about Parliament made by the noble Lord, Lord Walney, we will of course debate that on Monday.

I actually share the aims of this amendment, and I am grateful for the further opportunity to debate the policing of anti-vax protests and consider the merits of fast-track public space protection orders, or PSPOs. The amendment is very similar to one debated in Committee that sought to provide the fast-track PSPOs to protect schools from harmful protests, but it goes further, also allowing for fast-track PSPOs outside premises providing NHS vaccination services. It also removes the need for a consultation in advance of a PSPO outside these premises being implemented.

As the noble Baroness, Lady Fox, pointed out, I set out in Committee the powers of the police to protect pupils, teachers and staff from disruptive protest activity outside schools, as well as the benefits that some of the new measures in the Bill will bring. Many of these existing or new powers apply also to disruptive protests at vaccination sites. I sympathise with the noble Lord’s intention to protect schools and vaccination sites from harmful protests, but this amendment will not help to achieve that aim. It removes the need for a consultation prior to a PSPO being put in place, instead requiring consent from the relevant school or NHS body, the chief of police, and the leader of the local authority. This is unlikely to materially speed up the process in which a PSPO can be implemented as there is currently no minimum consultation period required before a PSPO can be put in place. I struggle to understand how we can implement the PSPO and run a consultation concurrently.

It is also important to note that in making a PSPO under this amendment a local authority would still be accountable, potentially in legal proceedings, for demonstrating that the order is compliant with Articles 10 and 11 of the ECHR. Consultations can provide supporting evidence to demonstrate this compliance, meaning that a local authority could find itself subject to increased legal risks if it does not perform a consultation prior to implementing a PSPO, even if legislation states that it is not necessary. I share the unease of the noble Lord, Lord Walney, and the noble Baroness, Lady Fox, that it would, at the hands of a very few people, allow local areas to pick and choose which protests were politically acceptable.

Although I support the underlying aims of the amendment, in the sense that no one working at a school, hospital or other vaccination site should be subject to abusive or highly disruptive protests, powers are in place, which we are strengthening through the Bill, to assist the police and others to tackle such protests. We will be discussing many of them on Monday. The powers already include the ability for local authorities to make, at speed, a PSPO. Given this, I hope that the noble Lord, Lord Coaker, is happy to withdraw his amendment.

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[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I support my noble friend Lord Blencathra. He and I have been chasing down issues with secondary and, tonight, tertiary legislation for some months and have produced reports to that effect that I think have found favour in your Lordships’ House, bearing mind the number of noble Lords who wished to speak in the debate tabled by the noble Baroness, Lady Cavendish, last Thursday.

Government by Diktat, the title of a report by the Secondary Legislation Scrutiny Committee, which I chair, is alive and well and living with the situation that my noble friend wishes to remedy. The issues of regulation and guidance, of who provides the guidance and of how enforceable it is are questions with which the SLSC has been struggling. However, if we have been struggling with that, when it comes to this latest idea the guidance will not even touch the sides of the regulatory process of your Lordships’ House. We as a House will be presented with a series of faits accomplish, and unless somebody is able to persuade the usual channels to find time to debate something, we will just be told, “There it is and off we go”.

That is not a satisfactory situation. It is part of a much wider issue of how we deal with secondary and, in this case, tertiary legislation, but my noble friend Lord Blencathra has done a valuable service by bringing this case to the surface. We will make progress in this area only if every time we see this sort of thing emerging we raise it, talk about it and try to deal with it. That is why I support the amendment and put my name to it.

[Lord Paddick (LD)]

My Lords, as the noble Lord, Lord Blencathra, said, in December 2011 the then Home Secretary announced the establishment of the College of Policing and the Government said that as soon as parliamentary time allowed, the College of Policing would be established as a statutory body, independent of government.

Now it is 10 years later. In addition to supporting what other noble Lords have said, I say that the College of Policing being a limited company undermines its credibility, which is not strong among operational police officers in any event. There is an anti-intellectual culture in the police service and the very name gets operational cops’ backs up. To then see documentation that the college produces marked as copyright of the College of Policing Ltd, an organisation headed by someone called a chief executive rather than a chief constable, further undermines its status and credibility in the eyes of operational police officers.

For these reasons, we support bringing forward legislation this calendar year that would go further than re-establishing the professional body for policing under an Act of Parliament. The college should be renamed and the head of the organisation should have the title “Chief Constable”.

[Lord Coaker (Lab)]

My Lords, I have listened carefully to this short debate and the points made by the noble Lords, Lord Blencathra and Lord Paddick, and the noble and learned Lord, Lord Judge. It will be interesting to hear what the Minister has to say about placing the College of Policing on a statutory basis. I also listened to the point made by the noble and learned Lord, Lord Judge, and it would be interesting if there were a long debate about pre-charge bail.

However, it is important to say something about the schedule that is mentioned in the amendment. We strongly support the provisions in the Bill on pre-charge bail. The House is aware that the changes that have been brought forward are known as Kay’s law, after Kay Richardson, who was murdered by an abusive ex-partner after he was released when he was under investigation, rather than placed on pre-charge bail. Our concern, picking up the point rightly made by the noble and learned Lord, Lord Judge, is that the guidance under Part 6 of Schedule 4 should be clear and effective and should accurately reflect the necessary changes made to the use of pre-charge bail under the Bill.

We understand that this was brought forward as Kay’s law, and all of us will have abhorred the horror of what happened. Notwithstanding that, it will be interesting to hear the Minister’s response to all of that.

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[Lord Beith (LD)]

My Lords, in moving this amendment, I seek to bring music, drama and dance within provisions that the Government have included in the Bill in respect of sport and religion. The Bill takes the Sexual Offences Act 2003 and imports the position of trust of someone who is training in sport or religion into the mechanism of the Sexual Offences Act. That makes the concept of positions of trust apply not simply in institutions such as schools but to individuals carrying out training on a private basis or as part of a community organisation and in any number of other ways.

It has puzzled me from the beginning how the Government have identified sport and religion alone as fields in which abuse can take place—when people who have close personal charge in a training role of a young individual can have undue influence that could be put to the wrong use, as a means of sexual abuse or a route into sexual abuse. I do not know anybody who believes that this problem exists only in the areas of religion and sport and not in other areas where very close contact is involved in training, instruction and development. The Government concede one small part of my amendment by taking the view that dance is already included, which must be true, in the wording of the legislation, if the dance is preparation for “competition or display”. I can imagine that an Irish or Scottish dancing group for which individual training was taking place might well be covered. I am less convinced that professional ballet might be covered; that is an area in which we have seen very serious abuse of people undergoing training by a professional ballet instructor.

It is very difficult to understand why the Government have alighted on those two areas alone and not others, because the characteristics of the situation are very similar in all these different areas of activity. There are some distinctive features but so many similar characteristics: being alone with someone quite a lot; a competitive situation in which the person being trained is desperate to be included in the display or team; a desire to please; and the developing of a close personal relationship. They are all elements that we find in a number of other areas, so I wonder what the Government’s argument is.

I have had very helpful discussions with the Minister, who has been generous with his time and his staff’s attention to this matter. However, despite all his efforts, he has not succeeded in convincing me that the Government have a logical case at all. The argument that the Government resort to is that extending these provisions to music and drama would have the effect of raising the age of consent, so relationships that would not be unlawful at present would become unlawful if we extended them into music and drama. That is a very odd argument because that is precisely what the Government are doing for sport and religion: they say that the danger of predatory sexual activity is so serious that we must protect people aged 16 to 18 from this being done in a training situation, but only if their training is in sport or religion.

I simply do not understand that argument or why, if the Government think it is such a serious objection, they are prepared to do exactly that for sport and religion but not in other areas. If it is because of abuse by sexual predators that such provisions are being considered and provided for those two areas, it makes no sense that these other areas are excluded. However, they can be included subsequently because the Government have given themselves the power by affirmative order in this legislation to add other activities, or indeed to remove either of the two activities currently included.

As I thought about this, I wondered what the circumstances were in which the Government would decide to add one of the areas that I have identified—music teaching or drama teaching—to the condition where people are regarded as having a position of trust when they are engaging in training. What would lead the Government to make that change? It would probably be cases coming to light. Such cases will come to light, because in all these areas we know that, despite many thousands of people conscientiously providing this kind of training, there are those who get into these roles with predatory intent, and others who might be regarded as having done so where perhaps it has arisen more innocently between two relatively young people but in a situation that we cannot simply ignore.

When those cases arise, the question will be asked: why is the perpetrator not being charged as someone in a position of trust would be? The answer will be that the Government decided that we did not need this provision in respect of music or drama, even though we need it for sport and religion. I think future Ministers will find that a very uncomfortable question to deal with from the Dispatch Box when we then point out that cases have arisen that could have been pursued under the kind of provisions that they see as necessary for sport and religion.

The Government are in an illogical position, and their only way out of it is at some point to decide to add other areas to the list. That may come at a time when more bad cases have arisen, and then they will have a difficult case to answer. I invite the Minister to think further about this matter, but for the time being I beg to move.

[Lord Paddick (LD)]

My Lords, as my noble friend Lord Beith explained, the amendment would extend the position of trust to include people who coach, teach, train or instruct on a regular basis in dance, drama and music.

I am sure the Minister will correct me if I am wrong, but I seem to remember him saying in Committee that the Government wanted evidence that these amendments were necessary before they were able to accept them. On 20 October 2021, the Guardian reported that a former ballet teacher and principal dancer at the English National Ballet had been sentenced to nine years in prison for more than a dozen counts of sexual assault against his students—I think that is dance. On 30 September last year the Sun reported that a drama teacher had been convicted of sexually abusing girls as young as 15 over five years, abusing his position of power and targeting teens who wanted to become actresses by sexually assaulting them at the theatre group he had set up in Northamptonshire—I think that is drama. The Edinburgh Evening News reported on 22 December, just last month, that a retired music teacher in Scotland had been sentenced to eight years’ imprisonment for raping and sexually abusing former pupils—I think that is music.

There is the evidence. What is stopping the Government now? We strongly support my noble friend’s amendments.

[Lord Pannick (CB)]

My Lords, the noble Lords, Lord Beith and Lord Paddick, make a very strong case. Clause 46 addresses a serious mischief: abuse of trust to gain sexual advantage. Like them, I cannot understand why this is to be addressed only in the context of sport and religion and not in the context of dance, drama and music.

I have one other question for the Minister. I also cannot understand why sport is only to be covered in relation to games in which physical skill is the predominant factor. What if there is an abuse of trust by someone who is training young people in chess or bridge? Why is it not equally objectionable if they take sexual advantage of those young people? Why should that not be included within the scope of the offence?

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[Lord Wolfson of Tredegar (Con)]

As I say, we discussed this with a wide range of people, and it seemed to us from looking at all the material that sport and religion are the particular areas where law at the moment should intervene. I was coming to this point. The noble Lord presented the amendment saying, “Abuse can take place in other relationships too”, and of course he is absolutely right. However, abuse can take place where there is no relationship at all, and I am afraid it can take place in lots of different relationships. The question here is when the law should intervene to prohibit automatically, regardless of the particular 17 or 19 year-old and whether any abuse is taking place, to prevent any sexual contact. For those reasons, we consider that at the moment, we should intervene—I will come to the delegated power—in sport and religion only. Those settings involve high levels of trust, influence, community recognition, power and authority, and these figures are often well-established, trusted and respected in the community.

The report of the Independent Inquiry into Child Sexual Abuse found that religious organisations

“may have a significant or even dominant influence on the lives of millions of children”

and that

“what marks religious organisations out from other institutions is the explicit purpose they have in teaching right from wrong.”

Also, both sport and religion can provide a young person with a strong sense of belonging, whether in a team, a squad, a community or a faith. Such deep feelings held by the young can provide unique opportunities for predators to exploit or manipulate and can make it more difficult for the young person or concerned relatives to report abuse.

With respect to sport specifically, the physical nature of the activities means that coaches often ostensibly have legitimate reason physically to touch the children and young persons they are coaching. A sports coach will often have opportunities for closer and more prolonged physical contact compared with other roles, and this can be manipulated by abusers. That is why, to respond to the point made by the noble Lord, Lord Pannick, the 18 and a half year-old tennis coach would be prohibited from having a relationship with a 17 and a half year-old tennis student, but the 18 and a half year-old chess coach could have such a relationship —assuming for these purposes that chess is not a sport; I do not need to decide that because it is a physical definition that is in the Act—because there is not that scope, ostensibly, for a physical relationship.

The noble Lord’s amendment addresses dance specifically. Again, let me reassure him that the definition of “sport” in Clause 46 includes types of physical recreation engaged in

“for purposes of competition or display”.

We consider that this includes dance.

On the delegated power for the Secretary of State to amend new Section 22A, we accept that new evidence may emerge that may justify legislating further. Let me reassure the House and put it on record that this power will not be used lightly, but nor will we wait until instances of abuse are brought to our attention. We will proactively monitor data on child sexual abuse to ensure that we have the evidence needed to inform policy and act decisively where required, including evidence relating to the nature of roles and the institutional or organisational context, the level of power and control, other factors which we have seen contribute to abuse including opportunities for extensive unsupervised contact, and any inherent risks posed to young people as well as any data on incidents of concern. We are establishing channels through which partners such as the police, the CPS and local authorities can share emerging evidence and highlight patterns of behaviour.

Some of the behaviour that has been mentioned this evening and in Committee is already covered under other offences within the Sexual Offences Act 2003. Let us be clear: sexual activity with someone under the age of 16 is a crime. Non-consensual sexual activity such as rape is obviously a crime. I certainly heard the word “rape” in at least one example mentioned by the noble Lord, Lord Paddick. We are not talking about that—that is the point—because rape is already a crime. We are talking about sexual activity which would otherwise be lawful and consensual. I did not quite catch all the examples, but one cited was from a newspaper in Scotland where somebody had done something. How old was the person? If they were under 16, it is already caught. Was there consent? If there was not, it is already caught. One has to be careful when one is talking about evidence. We will be proactive in looking for that evidence and, for the avoidance of any doubt, we will of course re-read the examples that he gave us.

I accept that Clause 46 does not represent everybody’s preferred approach, but we believe that, on the material that we have at the moment, our approach strikes the appropriate balance between the protection of young people and the sexual freedoms and rights otherwise granted to 16 and 17 year-olds, while still allowing for rapid responses to emerging patterns of abuse in the future. For those reasons, I respectfully invite the noble Lord to withdraw the amendment.

[Lord Paddick (LD)]

Before the Minister sits down, can he clarify two points? First, is he saying that those people who teach drama, music and dance should be allowed to exploit their positions up until the point that they rape or indecently assault somebody, or does he agree with my noble friend that action should be taken to prevent that in the first place? Secondly, what is to stop a teacher of a young person who wants to engage in sexual activity with them distancing themselves from their teaching role to enable that to take place? How on earth does this amendment change the age of consent?

[Lord Wolfson of Tredegar (Con)]

I am struggling with that second point, but let me try to answer the first. On whether I am saying that anybody should be allowed to exploit a young person, the answer is no. Frankly, I do not understand how the noble Lord has reached that conclusion. There is nothing in the provisions about justifying exploitation or abuse up to the point of rape and assault. Maybe this is the confusion that he is under in relation to the second question. At the moment, if someone is caught in a position of trust—let us say, for example, a minister of religion who is 18 and a half—that person is prevented from having any sexual contact with, say, a 17 and a half year-old congregant. Before that person was ordained or appointed to the position as a minister of religion, that person could have had a sexual relationship with a 17 and a half year-old. That is why I am talking about changing the age of consent, because that 17 and a half year-old is able to sleep with an 18 and a half year-old but not if that 18 and a half year-old is, for example, her minister of religion. I hope that answers the noble Lord’s second question, although I confess I did not quite understand it because, if I may say so, it seemed to proceed from a fundamental misapprehension of what we are talking about.

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[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I am delighted to be able to support this amendment from the noble Lord, Lord Rooker, whose knowledge on this subject is extensive. He has set out his case, and I agree with his arguments.

As has been demonstrated throughout the passage of the Bill, the police are overworked and stretched to their limit. Food crime is not at the top of their list of priorities. A couple of years ago, I went out with the district council’s environmental health officer. Although most of the premises that we visited were providing good-quality catering facilities to both residents in homes and the general public, we visited one that had been closed due to the intervention of the police and the council, in a successful prosecution, for providing food that was unfit for human consumption. This was a very minor case, but it took several attempts before the police were eventually brought on board.

Given the increase in serious crime that the police are now facing, it is not surprising that they are unable to support the National Food Crime Unit in the way that the FSA would like. As the noble Lord, Lord Rooker, indicated, the available information shows that, in 2020, more than 30 operations were opened, while 40 were already running. This is clearly more than the police can deal with, given their current resources.

Organised crime has long tentacles, and that includes food crime. Surely it is better for the FCU to be able to apply directly to the courts than for the public to be put at risk by food crime. The FCU has to wait for the police to support it. Delays will occur, and some crimes will go unpunished. The Food Standards Agency supports this amendment. I hope that the Minister will be able to offer his support to it and allow the National Food Crime Unit to get on with its job unhindered.

[Lord Paddick (LD)]

My Lords, as other noble Lords have just said, serious and organised food crime can have very serious consequences. To free up scarce police resources by giving the National Food Crime Unit the powers that it needs seems sensible. According to the noble Lord, Lord Rooker, the National Police Chiefs’ Council supports this change, so I am looking forward to hearing from the Minister what I am missing, because I cannot immediately see any reason why this amendment should not be accepted.

[Lord Rosser (Lab)]

As has been said, this amendment raises the issue of food-related crime and the powers and resources available to tackle it. I will make just one or two comments that may seem almost irrelevant, in view of the very strong case that my noble friend Lord Rooker has already made, as we anticipated he would.

As my noble friend said, the National Food Crime Unit, which is part of the Food Standards Agency, works to tackle serious organised cases of food-related crime. My noble friend Lord Rooker powerfully and persuasively made the case that there are blocks on the powers that the unit can access and that it is often reliant on the police, who are overstretched across competing priorities, to be able to use certain powers or apply for warrants, for example. The amendment that my noble friend has moved would allow the unit to access powers directly, under the Police and Criminal Evidence Act, rather than waiting for police support to become available.

I will spell out exactly the Oral Question that my noble friend asked in February last year:

“My Lords, does the Minister accept that the National Food Crime Unit is operating against organised crime with its hands tied? Investigations are being hampered. Does the Minister agree that investigation powers should be strengthened to include powers to collect the necessary evidence to a higher standard? In other words, will the Government agree that the Police and Criminal Evidence Act powers should be granted to the National Food Crime Unit? The National Police Chiefs’ Council agrees to this to remove the burden from local police forces, which actually agree that food crime is not a high priority.”


As my noble friend said, the Minister replied:

“The noble Lord entirely has a point. I completely agree with him that the National Food Crime Unit has a formidable task ahead of it and that its investigatory powers could be enhanced and its impact improved. That is the view of the Government, industry and the police, and that is why we are committed to the dialogue”.—[Official Report, 22/2/21; col. 614.]


That is what the Government said in reply.

We welcome this commitment and would have given appropriate support to a resulting legislative process, which is why we are supportive of what my noble friend Lord Rooker seeks to achieve with this amendment. The Government have thus previously recognised that this is a problem, but what action has been taken so far since that clear recognition, which was repeated last February? Will the Government now accept the amendment my noble friend has moved? If not, why not?

Delivering Justice for Victims

Lord Paddick Excerpts

Thursday 16th December 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we welcome the Statement. We hope that the proposed consultation exercise is dealt with rapidly, that people are listened to and that we see legislation as soon as possible. Can the Minister tell us when that is likely to happen? I confirm that we will work constructively with the Government to ensure that the new victims’ law is fit for purpose and is a law of which we can be proud.

The Statement reminds us just how urgently we need a new law. The number of victims who have dropped out of the system has doubled in the last five years. It is concerning that confidence in the justice system is so poor. Three in every five victims do not even report a crime, one-third of victims would not report a crime again and one-third of victims who do go to the police drop out of the process before any case can come to court.

There are steps that the Government could take now that would help the situation. In October 2021 the National Audit Office released a report on the Government’s handling of the court backlog. It found that the Crown Court backlog had already increased by 23% in the year leading up to the pandemic and had increased by a further 48% since. The NAO said that both the Ministry of Justice and its courts agency were not working together properly to solve problems that had their roots in pre-pandemic decisions.

One in 67 rape complainants sees a case come to court, and it can take four years for that process to be completed. The latest data from the CPS shows that the number of rape convictions fell by 6.7% in the last quarter. At the current rate it would take the Government 18 years to return to pre-2016 levels of prosecution. There are 3,357 victims of violent and sexual crime who have already been waiting for over a year for their day in court, and a further 654 victims of these horrific crimes have been waiting for over two years. Can the Minister assure us that the Government are taking all measures necessary to put this right?

We have now had five Secretaries of State for Justice promising a victims’ Bill, and all five have failed to deliver. I have heard victims say that their experience of the justice system is worse than the crime itself. Just 19% of victims believe that a judge takes into account the impact of the crimes on them, and only 18% believe that they are given enough support. Victims do not want consultation; they want action, and the Labour Party has a ready-made Bill to clear the backlog through an increase in Nightingale courts and to fast-track rape and sexual violence cases. Our victims’ Bill would also improve rights, strengthen protections and accountability, improve communications and ensure that victims were no longer treated as an afterthought.

The Statement from the Government is welcome, but they must now match their warm words with deeds and ensure that they put victims at the very heart of our criminal justice system.

[Lord Paddick (LD)]

My Lords, as a victim of the Police, Crime, Sentencing and Courts Bill, I have to say that dealing with this Statement at this time on this day is not delivering justice to victims.

Seriously, though, I should declare an interest as a victim of two crimes in recent years. One was a homophobic hate crime that my Norwegian husband was a witness to. He said to me afterwards that he would never again be involved in the British criminal justice system as a result of his experience in court, where he felt that he was on trial. The other was a burglary where the perpetrator was caught on closed-circuit television but the police refused to investigate further. In a subsequent meeting with a police super- intendent, he admitted that many cases that were solvable were not being pursued because of a lack of police resources. Is it any wonder, as the noble Lord, Lord Ponsonby of Shulbrede, said, that three in five victims do not report crimes, and that one-third would not report them again having experienced the criminal justice system? It seems that my husband and I are not alone.

The Government say that they have strengthened the victims’ code. What improvements have there been as a result? More money has been invested, according to the Statement, but what impact has this had on victim satisfaction? We should be looking for outcomes, not outputs.

The Statement says that it wants victims to

“properly engage at every step.”

Research shows that restorative justice significantly increases victim engagement and satisfaction. What plans do the Government have to fund more restorative justice programmes?

The Statement says that the victim will be consulted before charging decisions are made

“in certain types of case”.

Can the Minister explain what types of case are being referred to?

The Statement says that the Government

“will increase transparency in respect of the performance of our criminal justice agencies.”

What will the Government do when they discover that the reason for poor performance throughout the whole criminal justice system—from the police to the CPS, legal aid and the courts—is that it is underfunded? It is all very well to

“enshrine the victims’ code in law”,—[Official Report, Commons, 9/12/21; cols. 595-6.]

but if the criminal justice system does not have the resources to fulfil its obligations under the victims’ code, how will making it a statutory responsibility help?

The Statement says that the Government will publish a report on progress against the rape review action plan. Research clearly shows that victim satisfaction is the most important outcome measure in rape cases; being believed and cared for are the most important elements of rape survivor satisfaction. Does the report detail changes in victim satisfaction? If not, why not?

The Government are long on words and short on delivery. Trust and confidence in the criminal justice system have declined in the decade or more that the Conservatives have been in power. I can understand that the Government welcome the fact that the police cannot investigate some crimes, despite overwhelming evidence, when it is the Government who stand accused, but for the rest of us, if we cannot trust the police, the CPS and the courts to protect us when we are victims of crime, we are in serious trouble. You cannot get a quart out of a pint pot, which is what the Government appear to be trying to do with these measures.

Finally, I am reminded of colleagues who, when the Government do something we agree with, then go on to question the Government’s motives. I do not know whether the Minister celebrates Christmas, but I hope he enjoys the break, whatever the motivation for having one.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

To pick up on that last point first, I take this opportunity to wish everybody—both those who celebrate Christmas and those who do not—a very happy time and a very successful 2022. I think we are all entitled to celebrate the fact that we have achieved at least three days on the police Bill on Report, and we have more to look forward to next year.

I come back to the matter of victims. Despite the fact that it is the last piece of business for this year, it is a very important topic. I am grateful that the noble Lord, Lord Ponsonby of Shulbrede, broadly welcomed the legislation. I think it is fair to say that this is a matter where there is broad agreement across the House on the aims—although, of course, there will be political differences, perhaps as to the way we go about it. We will have an eight-week consultation on the matter, and we will prioritise work on that and introduce the Bill, as the Deputy Prime Minister said in the other place, as soon as possible. We want to ensure that there is wide engagement both across this House and in the other place as we develop the Bill next year.

So far as victim attrition is concerned—I must say, I do not like using that phrase, although it is the phrase that is used; we all use it but there is a real person, so to speak, behind all these statistics—the quicker we get cases to court, the less attrition there will be. That must be balanced with making sure that cases are investigated properly and that the defendant has a fair trial. In the area of rape, for example, we have introduced measures to speed up the extraction of data from mobile phones and make sure that the phone gets back to the victim. In particular, we have found that support from ISVAs—independent sexual violence advisers, whom we also have in domestic violence cases—really makes a difference. We are providing more than £150 million in this financial year for victim and witness support services, which we will increase to £185 million by 2024-25. The figures show that there is a significant benefit in reducing victim attrition for those victims who have contact with ISVAs.

The backlog in criminal trials is obviously a matter that we have debated on a number of occasions. It is fair to say that the pandemic has had a real impact in this jurisdiction. Although we were one of the first jurisdictions to restore jury trials, there were times when we could not hold them, and then we could not hold jury trials with multiple defendants because of space issues. In the Judicial Review and Courts Bill, which the House will consider next year, Clause 11, I think, provides that more work will be put into magistrates’ courts so that Crown Courts are freed up for more jury trials. However, we want to be transparent about this. As the Deputy Prime Minister has explained, we are publishing our rape scorecards, which will provide a tracking basis so that we can see how the system is doing, particularly in rape cases. I know that that is a particular focus of the Deputy Prime Minister.

I agree with the noble Lord, Lord Ponsonby, that the victim must be at the heart of the criminal justice system. Too often, there has been seen to be a dissonance, or an inconsistency, with putting the victim at the heart of the system while ensuring that the defendant has a fair trial. In fact, there is no contradiction. You can do both; indeed, we must do both. That is something we are very focused on.

Turning to some of the points made by the noble Lord, Lord Paddick—as he said, he has personal experience in this area, if I can put it that way—giving evidence is always traumatic. We recognise that it is particularly traumatic in cases that deal with sexual or other violence or coercive control. As the noble Lord will know, we have introduced Section 28 and are rolling it out so that it is more widely available. At the end of the day, judges, not Ministers, run trials so it is a matter for judges to decide whether and how Section 28 is deployed in a particular case, but our aim is to make it available across the criminal justice system for those cases where it is suitable.

I agree with the noble Lord that we must focus on outcomes. I have already mentioned rape scorecards. He also mentioned restorative justice. I am pleased that he did because, as I am sure he knows, there is very good evidence to show that there can be benefits for victims and a reduction in reoffending where restorative justice is used properly. It really is a win-win. The victim wins, society wins and, of course, the offender wins because they do not reoffend. The code makes it clear that victims can ask to take part in restorative justice at a time that is right for them. Both the victim and the offender have to agree, of course. The welfare of the victim is paramount so there will be cases where it is unsuitable, but there are lots of cases where it is very suitable. We are providing grant funding to police and crime commissioners to provide victim support services; that includes restorative justice. In the last financial year, 2020-21, they spent around £3.7 million of the funding on restorative justice services; around 5,500 victims engaged with those services in that year. We will bolster support by increasing funding for support services, as I said earlier.

The noble Lord asked in what types of cases it would be appropriate to consult a victim. That is one of the things we are going to consult on because, as he will recognise, it will not be all cases, but there will be many where it will be appropriate. Finally, on resources put into the criminal justice system, I do not want to have a statistics battle across the Dispatch Box, especially since this is the last business of the year. However, I will say that we are putting in £477 million as part of the spending review into the criminal justice system over the next three years, to help reduce the backlog and to provide swifter access to justice, which victims deserve. I think it is generally recognised that the most recent spending review has significantly increased the budget of the Ministry of Justice, and that this will be to the benefit of the criminal justice system.

I also say, finally, that we have published the CLAR report on criminal legal aid, authored by Sir Christopher Bellamy. We are very much looking forward to engaging with the profession, and indeed all stakeholders, about criminal legal aid, which is itself such an important part of the criminal justice system.

Prisons Strategy

Lord Paddick Excerpts

Thursday 16th December 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the prison strategy White Paper can most charitably be described as a missed opportunity to tackle the escalating prison crisis. While presenting the biggest prison-building programme in more than 100 years as a way to improve public protection, the strategy contains next to no credible solutions to the multiple problems plaguing our existing estate, which have made rehabilitation nigh-on impossible and have led to record levels of reoffending.

Unusually for a White Paper, the document contains very few direct legislative proposals and instead asks numerous consultation questions, many along the lines of:

“Do you agree with our … vision?”


Old ideas from previous papers are repeated and recycled, through the 76 pages of vague aspirations and feel-good gimmicks, such as resettlement passports and workforce drug testing. Yet key drivers of violence and instability, such as widespread squalor and the collapse in staff retention, morale and experience, are glossed over and ignored.

Worse, there is no recognition that government policies over the last decade have caused the current crisis, including cuts to staffing and other resources, leading to the degradation of pay, terms and conditions, a haemorrhaging of experience and the surge in violence, especially against prison staff. The paper’s headline pledge to recruit 5,000 new officers seems optimistic in light of the current recruitment and retention crisis and the lack of ministerial interest in the reasons behind the record resignations—from poverty pay to an unrealistic and cruel pension age of 68.

The long-promised prisoner education service gets a few mentions, but with no real detail apart from praise for the potential of in-cell technology. We agree that in-cell technology could be a game changer in rehabilitation and the whole incarceration experience.

One glimmer of hope, however, is the recognition that mass unstructured social time can make some prisoners feel unsafe and inhibit the ability of staff to manage the risks of violence and bullying. This is a key lesson from the pandemic that trade unions have consistently highlighted—as did the then Lord Chancellor Robert Buckland in July, when he insisted that there could be no going back to pre-Covid regimes. However, running smaller-scale regimes with higher staff-to-prisoner ratios will be at the discretion of governors, rather than required by national policy. As far as I can see, the strategy shows no understanding that such initiatives need significant staff investment and will be simply unsustainable with current staffing capacity.

Very little in this White Paper requires primary legislation: only the proposals to bring forward release dates, potentially—we debated this yesterday on the PCSC Bill—and to strengthen the powers of scrutiny organisations. What will all these extra prisoners do all day? The White Paper states that

“opening up the estate to employers”

will deliver a step change in the number of prisoners who work in prison. It seems likely that new legislation may be needed to create a presumption in favour of adapting the prison estate and regime to facilitate work in prison for appropriate prisoners. As important as a sense of satisfaction from doing a proper day’s work must be to prisoners, it seems unlikely that, with a minimum wage of £4 a week, they will earn enough to buy the things they need day to day in prison and also save for their release.

In praising prison officers as “hidden heroes”, the White Paper’s strategy commits to making

“the prison officer role one which is understood and valued in society in the same way that police and other core frontline roles are”.

But it concedes that attrition rates are simply too high, which is

“causing an unsustainable level of turnover in the system”,

leaving

“new staff feeling unsupported, contributing to a vicious cycle of staff dissatisfaction and lack of retention.”

Even the Prison Service’s new retention framework, referenced in the White Paper, admits that poor pay is a key driver to attrition and accepts that there are limits to what governors can do locally to improve pay and rewards. In other words, the solutions to the problem are well known; we are just seeing a lack of political will from the Government.

What about the existing teachers and how they will operate within the new prison education service? We are told that there will be two overriding strategic priorities: improving the numeracy and literacy of all prisoners, and incentivising them to improve their qualifications to increase their prospects of finding work. These are both admirable aims, but involve very different types of teaching, alongside additional resources and a break from the current private commissioning model, which is not recognised in the strategy document that I was reading earlier.

There is at least an admission that the current education system is not fit for purpose. The White Paper insists:

“Despite recent changes, the current quality of education provision is not good enough, with 60% of prisons in England receiving Ofsted grades of ‘Requires Improvement’ or ‘Inadequate’ over the last five years.”


However, the proposed solution is to

“work with our providers to improve the delivery and quality of training in prisons to drive year on year improvements to Ofsted grades, so they are much closer to those achieved by Further Education in the community.”

This is a laudable aspiration, but if it is not backed by new investment it will be an empty promise.

One area that will see a boost, thankfully, is in-cell technology. There is no question but that this could dramatically change learning and rehabilitation more widely, as well as help maintain and improve family engagement, and, of course, promote stability and good behaviour when used as a reward or incentive. Can the Minister say whether virtual visits via in-cell kiosks should be treated and charged as a phone call or as an in-person visit? Of course, in-person visits are free at the moment. Moreover, will Parliament, and indeed the public, get to express a view on this? It is a very specific question that I suspect parliamentarians would have a view on.

In reality, it is the probation service that is responsible for keeping new releases on the straight and narrow. The new strategy makes no mention of Transforming Rehabilitation, which was the failed probation privatisation experiment that caused so much misery.

To address the scandal of homelessness among prison leavers, the White Paper proposes extending

“a new provision of temporary accommodation and support for up to 12 weeks after release”

to all prison leavers, but it is not resettlement passports that new leavers need; it is front-door keys. Where is the commitment to helping them on to housing benefit with deposits paid in advance to trusted landlords?

The understanding that prisons

“cannot support rehabilitation unless they are safe, stable and secure”

is to be welcomed, as is the pledge to

“provide safer working conditions for staff”,

but the proposed

“new ministerial prison performance board that will hold the system and Governors to account for ensuring prisoners and staff are safe”

will have key performance indicators and “appropriate league tables”. The KPIs are

“security and stability; substance misuse and mental health; and resettlement and family ties.”

It is worrying that the crucial metric of staff safety seems to be missing from the KPI list. One simple way for Ministers to send a clear message to staff that they are on their side would be to ensure that all attempts at potting are prosecuted and for the Government to back the amendment from the noble Earl, Lord Attlee, to the PCSC Bill.

Bizarrely, the strategy calls for

“modern desktop computers, devices and software to benefit the people who work in our prisons”,

which

“will allow for increased productivity and a reduction in time wasted by users waiting for systems to boot up”.

Why does it need a White Paper for prison staff to get new PCs? Just how long does it take for their current systems to turn on? This seems ridiculous.

Finally, the strategy looks at rolling out a two-year programme of future regime design to let governors design their own regimes. The highest performing governors will receive “earned autonomy” and

“greater flexibility to deviate from nationally set policies.”

This includes

“greater freedoms to deviate from prison service instructions and policy frameworks”,

as long as KPIs are met. This begs the question: why will governors be rewarded for hitting targets by being given the opportunity to break the rules? That is maybe a rhetorical question, and I approve of giving governors greater flexibility and managed autonomy, but this cannot be allowed to shift responsibility and accountability from Ministers who have put this new regime in place.

[Lord Paddick (LD)]

Forgive me, my Lords, but I understood that it was five minutes for each Front Bench and then 10 minutes for the Minister to respond to our questions. Hopefully, with the leave of the House, we will give the Minister appropriate time to respond despite the Labour Front Bench.

Like the noble Lord, Lord Ponsonby of Shulbrede, we believe that the White Paper is disappointing. The Statement gets off on the wrong foot as far as we on these Benches are concerned. It says:

“Prisons play a vital role in protecting the public by keeping the most prolific and dangerous offenders in custody”—


although, as we see from the Police, Crime, Sentencing and Courts Bill, even peaceful protesters are going to be subject to custodial sentences—

“and rehabilitating those who deserve a second chance.”

Can the Minister explain which prisoners do not deserve a second chance? On what criteria are the Government going to decide who does and does not deserve one?

The Statement says that the Ministry of Justice has secured enough money in the spending review to build an additional 20,000 prison places by the 2020s. The Nationality and Borders Bill intends to criminalise asylum seekers entering the country through irregular routes, with a maximum penalty of four years’ imprisonment —again, not

“the most prolific and dangerous offenders”,

but on current numbers every one of those 20,000 new prison places is likely to be filled by asylum seekers.

When I was a police commander in charge of Brixton, the governor of Brixton Prison told me that illegal drugs were more freely available inside his prison than they were outside on the streets. I am pleased to see that action is being taken to deal with that, but why has it taken over 10 years for this Government to act?

It is also welcome that the Government are going to treat illegal drugs as a health issue, but the probation service has very little financial leverage to secure support to ensure that drug treatment programmes started in prison continue through the gate when a prisoner is released. It is one thing to live without drugs when you are in prison with regular drug testing, but quite another to release prisoners back into the same environment that they came from on release and expect them to continue. What additional resources are being provided for drug rehabilitation and support outside prison specifically for ex-prisoners? Can the Minister specify how much per prisoner compared with 10 years ago, adjusting for inflation and taking into account the increase in prisoner numbers? I am reminded of shops that double the price of things for 12 weeks and then advertise them at 50% off, except that the Government make drastic cuts, put half back and then claim credit for what is in fact a reduction.

There is an increasing prison population compared with proportionately declining staff numbers. Where is the budget to recruit and retain prison officers and the other staff who will be needed to carry out the numeracy and literacy assessments and to deliver the training? I understand that the increase in prison officers outlined in the Statement is to cope with the expansion plans, but who will deliver these enhanced education and skills plans and who will backfill when staff are being “upskilled”?

What pay rises are factored in for prison officers to ensure retention, set against a record increase in inflation not seen for a decade and an increasingly difficult working environment? Wandsworth Prison today has 68 prison officers looking after 1,300 prisoners. Officers are leaving because of poor pay, and applications from new recruits are down 44% because the Prison Service cannot compete with other sectors. How can rehabilitation be delivered in Wandsworth Prison today in such circumstances?

Any measures to find ex-prisoners employment are to be welcomed, but is the limiting factor not that employers will not take them on? A

“new digital tool to match candidates to jobs”

will not help if there are no jobs to match the ever-increasing number of prisoners to. What incentive or encouragement is being provided to employers to employ former prisoners—or at least those prisoners that the Government deem lucky enough to be given a second chance?

Can the Minister explain the “new community accommodation service”? What additional funding or other incentive will local authorities and housing associations be given to provide accommodation and to what extent does this compensate for the devastating cuts to local authority budgets in recent years?

This White Paper appears to shift the balance further towards retribution and away from rehabilitation, with the only realistic, properly thought-through and funded proposals being to build and staff yet more prison places —plans one would expect from a right-wing, authoritarian Government.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I am grateful for the contributions. I will respond to as many of the points as I can in the time I have and will reply in writing on anything I cannot deal with orally.

The noble Lord, Lord Ponsonby, started off by criticising the fact that we are asking questions, but that is a poor place to start. I do not apologise for asking questions and seeking consultation. We published a prison safety and reform White Paper in 2016 and this White Paper builds on that. We are keen to learn. There are new things and new money in this White Paper, which I will come to, and we make no apologies for asking people for their views.

On staffing, which I agree is of absolute importance, since the end of October 2016, we have recruited a net increase of over 4,000 staff. In 2020, we accepted all bar one of the review body’s recommendations on pay and, as we announced in October this year, we accepted all of the PSPRB’s recommendations relating to the 2021 pay award. To retain staff in the sites hardest to recruit for, prison officers in the 31 hardest to recruit for sites receive an additional payment of between £3,000 and £5,000.

I think everybody around the Chamber understands the importance of education in prison. I acknowledge, as the noble Lord, Lord Ponsonby, did, the work done by the former Lord Chancellor, Robert Buckland, in this area. Throughout the pandemic, we have kept education running. The Prisoners’ Education Trust called for major investment in digital technologies in prison. We are developing the digital infrastructure and have reintroduced classroom teaching in prisons in line with government advice on Covid. We absolutely acknowledge that improvements have to be made in prisoner education. The pandemic has obviously not helped in that regard, but we are focused on this and have put new money into it as well.

On employment, which is absolutely key, there are over 1 million vacancies in the UK at the moment. Employers must look to wider talent pools to fill them and the New Futures Network, which is the Prison Service’s network of employment brokers, now works with over 400 organisations to place prisoners in employment. The Government lead by example: we will hire over 1,000 prison leavers into the Civil Service by the end of 2023 and, as the noble Lord will be aware, in the PCSC Bill, we are focusing on the rehabilitation regime, which is also important for people to obtain employment.

On the specific question about virtual visits, I can confirm that we are committed to continuing to offer secure social video calling beyond the Covid restrictions. We are looking at future options in line with the recommendations of my noble friend Lord Farmer’s review on maintaining family ties, but the current position is that there are no charges for secure social video calls.

We will come back to the issue of potting in the new year—I look behind me to see whether my noble friend Lord Attlee is here—so that is a joy which awaits us early in 2022. If I may, I will deal with that at that time.

Autonomy and flexibility for governors are important and we will discuss with them the appropriate KPIs in this context. However, ultimately, the buck always stops with Ministers.

I turn briefly—I am conscious of the time—to the points from the noble Lord, Lord Paddick. He asked, “Who deserves a second chance?” The short answer is everybody, perhaps with the exception of those who have a whole life order, because that means, essentially, that you are there for life. We can have an interesting debate about whether that means you deserve a second chance, but the nature of that sentence is obviously somewhat different. I agree about the importance of education. Some prisoners may deserve to have the book thrown at them, but all prisoners deserve to have books thrown to them. We think that prison education is very important. As to asylum seekers, can we pick that up when we debate the Nationality and Borders Bill next year?

Regarding drugs, I am grateful that the noble Lord, Lord Paddick, welcomes our strategy. He asked why it has taken so long. As it is the festive season, could I invite him to concentrate not so much on the ghost of Christmas past but to join us in looking to the ghost of Christmas future? We are putting new money in here. We have a £785 million package for treatment and delivery, and we are now investing £120 million of new money over the next three years for drug treatment in prisons. As far as drug treatment out of prisons is concerned, which the noble Lord rightly focused on as well, we are rolling out £80 million of drug treatment funding with the Department of Health and Social Care to ensure that prison leavers get the support they need. I think I have dealt with his points on prison officer retention and pay.

On the community service accommodation point, the Department for Levelling Up, Housing and Communities announced this scheme on 28 July 2021. It is a pathway for prison leavers to give them a route from prison to their own private rented sector accommodation. Local authorities will be providing monitoring information to that department alongside wider monitoring information on homelessness and rough sleeping. Overall, we have allocated £13 million to 87 schemes across 145 local authorities. If there is anything more that I can say on that, perhaps I can drop the noble Lord a line. I have an eye on the Clock and am conscious that others will want to get in, so I hope the House will forgive me if I pause there.

Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I support Amendments 89 and 90. I endorse what the noble Baroness, Lady Chakrabarti, said. Thompson and Venables, the murderers of Jamie Bulger, although 10 at the time, had a developmental age of only four, which makes their High Court trial obscene. The noble Lord, Lord Dholakia, is to be praised for persistently trying to raise the age of criminal responsibility through a succession of Private Members’ Bills.

[Lord Paddick (LD)]

My Lords, prompted by the words of the noble Baroness, Lady Chakrabarti, I was reminded of a visit I made to the only young offender institution in Scotland, where we had the opportunity to speak to young people in custody there, the staff and the governor. They talked about how, without exception, those in custody had been subjected to a range of adverse childhood experiences. What came across from both the young people and the staff was that, even though those young people were aged 16 and over, it was not their fault that they found themselves in those situations; it was the adults and support mechanisms that had let them down. Moving the age of criminal responsibility from 10 to 12 is a move in the right direction and the minimum that should be done at this time, which is why I wholeheartedly support the noble Baroness.

[Earl Attlee (Con)]

My Lords, I rise briefly to support the noble Baroness in Amendment 89, for the reasons she has outlined. I think the noble Lord, Lord Ponsonby, in this Report stage seems to get the short straw every time. I have a question for my noble friend the Minister about the role of the CPS when deciding to prosecute. It has to apply the test of public interest. Is the very young age of a defendant a proper consideration for the CPS when making that public interest test?

Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, when the Bill seeks to put the cautions regime on to a statutory basis, it is plainly a very important step forward. Although I welcome it, it is unfortunate that this is being done largely by secondary legislation—an issue obviously addressed in many other contexts, about which I do not wish to speak today.

However, it is clear that even in this skeletal Bill, one critical issue is omitted—addressing the issue of lack of adherence to practice and lack of consistency. I outlined the powerful evidence of this in earlier debates and suggested a solution. That is needed because of the significant evidence that cautions can blight the lives of others and, as cautions are in effect part of the sentencing system, they must reflect transparency and command public confidence.

It was, however, evident from the speech of the Minister in Committee that the need to deal with this is recognised as an issue. He said that

“scrutiny and monitoring of out-of-court disposals is vital to successful implementation, accountability and public perception.—[Official Report, 8/11/21; col.1576.]

The Government did not like the way in which I suggested that this be done in the amendment that was before the Committee, but the Minister has very helpfully discussed the issue. The amendment now before the House very much leaves the means to ensure consistency and adherence to the code to the Secretary of State but reflects the principle of the necessity of scrutiny for consistency and adherence to principle. I look forward to the Minister explaining what Her Majesty’s Government intend to do in relation to consistency and how, in due course, the House can review the details of that.

[Lord Paddick (LD)]

My Lords, I have Amendments 66C and 66D in this group and will speak to Amendment 66B, but I will take them in reverse order if noble Lords will bear with me.

Currently, first-time offenders can be given a fixed penalty notice—an on-the-spot fine—by the police for a range of offences of disorder including dropping litter, being drunk and disorderly, and the possession of cannabis or khat. This Bill removes fixed penalties for disorder, so if the police want to enforce the law they will have either to arrest those responsible, taking up valuable police resources that should be spent on more serious crimes, or to take no action, leading to an increase in anti-social behaviour. Amendment 66D would retain fixed penalties for disorder.

Currently, first-time offenders can be given a simple caution, where the salutary effect of being found out, arrested and taken to a police station is, in most cases, enough to ensure that they behave themselves in future. It is quick, simple and effective. This Bill removes simple cautions, so if the police want to enforce the law they will have to impose conditions on everyone they caution, including considering whether to impose restrictive conditions, unpaid work conditions, attendance conditions and/or a fine. The police must also consider the views of any victim, including imposing any conditions that the victim or victims suggest. Compliance with conditions must then be monitored and action taken for any breach.

There is no evidence that the existing system of conditional cautions is any more effective than simple cautions, and conditional cautions, of which diversionary and community cautions are a more complex and complicated version, take far more police and other agencies’ time. Can the Minister explain why the Government are getting rid of simple cautions? If the answer is that, given the choice between the bureaucratic nightmare of imposing conditions and a simple caution, the police choose the latter, I have to tell the Minister that, faced with the bureaucratic nightmare of imposing conditions, the police will either release the accused with no further action being taken, allowing the accused to get away with it, or argue that the accused should be charged and sent to court. In fact, I wholeheartedly recommend to the police that, in every case where a diversionary or community caution is being considered, they refer the case to the CPS so that independent prosecutors can advise, not least on the sentence—or, as the Bill calls them, the conditions—the police intend to impose on the accused.

The police want to retain simple cautions. We want to retain simple cautions. Amendment 66C would retain simple cautions. I must say, the Minster has his work cut out to convince me not to divide the House on this issue.

As the noble and learned Lord, Lord Thomas of Cwmgiedd, ably explained, the amendment in his name aims to try to ensure compliance with the code of practice and consistency of application of the code. Academic research into the existing system of conditional cautions is of mainly inappropriate and inconsistent conditions being imposed. I referred to this in detail in Committee. It was not challenged; the House can therefore take it as fact.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, that is a very encouraging note on which to rise. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.

I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.

For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.

Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.

We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.

Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.

With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.

I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.

Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.

[Lord Paddick (LD)]

Before the noble Lord sits down, could he just confirm that these changes—not allowing fixed penalties or simple cautions—are being made on the basis of no evidence whatever of the efficacy of conditional cautions versus simple cautions? He has just admitted from the Dispatch Box that the Government do not retain any data on the number of conditional cautions versus the number of simple cautions, or about the sorts of conditions imposed, but retain data only on the total number of cautions.

[Lord Wolfson of Tredegar (Con)]

My Lords, I think we might now be in double figures for the times I have been asked that question. I have set out in my remarks, fairly I hope, what lies behind it. The work from the National Police Chiefs’ Council lies behind this; a third of police forces have gone there; and many more are considering it. Whether one calls that evidence or not, that is the basis on which these reforms are predicated. I have answered this question before, and I answered it in Committee. I appreciate my answers may not satisfy the noble Lord, but that is the basis on which we think this is a good idea; and quite a number of police forces already think this is a good idea.

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Moved by

[Lord Paddick]

66C: Clause 98, page 86, line 26, at beginning insert “Except for a simple caution,”
Member’s explanatory statement
This amendment would retain the use of the simple caution.

[Lord Paddick (LD)]

I wish to test the opinion of the House.

Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord West of Spithead (Lab)]

I am not a lawyer, I am very pleased to say—I am just a simple sailor. However, it seems from the complexity of the debate that this is quite a significant amendment that was brought in quite late. I find that rather worrying, because the feeling around the House is that if there were a vote on this, it might well not pass; I think it would fail. That is a worrying position to be in and I do not know how we can resolve that. It is not really very satisfactory.

[Lord Paddick (LD)]

I was not going to say anything, but I am, I think, the only former police officer in the Chamber. Is the Minister saying that he would be satisfied if somebody were sent to prison for four years for killing a police officer on duty in these circumstances? That seems to be what the noble and learned Lord is saying. In which case, what is the point?

[Lord Wolfson of Tredegar (Con)]

I know it is bad form, but perhaps I can answer in reverse order. I certainly was not saying that. Indeed, the point that I was trying to make was that I was not going to get into what an appropriate tariff would be in any case; I regard that as absolutely a matter for the trial judge. It is not helpful for trial judges or indeed anybody else for Ministers on their feet to hypothesise as to what they might think an appropriate tariff would be in a particular case. The tariff is entirely a matter for the trial judge, who will decide it in the way in which they decide tariffs in other cases of life sentences as well.

To the noble and gallant Lord—forgive me, I am not sure whether I have that right; he is proud not to be a lawyer, a point with which I sympathise—I say that we brought in this amendment as soon as we had thought about the policy and, we think, got it right. When we were thinking about this issue, there were there were a number of points in the policy that required very careful consideration. That took time and that is why it is happening now. I cannot say any more than that.

I was going to acknowledge another point made, but I think I have already responded.

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[Lord Wolfson of Tredegar (Con)]

As I said, I am very alive to the IPP issues, as the noble Lord knows; but the IPP issue and the IPP sentence was a novel sentence which did things that other sentences did not do. Indeed, that is why it was brought in. The shape of this sentence, however, is not novel. It is the application to this particular offence that is new. With the greatest of respect, therefore, I disagree with the comparison to IPP sentences, which were themselves novel.

I hope that I have set out the government position clearly and fairly—

[Lord Paddick (LD)]

My Lords, the noble Lord started his contribution to this debate by saying that he was listening. Surely, he has heard from the House that the House is not content to allow this amendment to pass at this stage. Surely, the only reasonable thing to do in these circumstances—because nobody wants to divide on this issue here and now—is for the Minister to say that he will take it away and bring it back at Third Reading once noble Lords have had a chance to discuss the issue with him between now and Third Reading.

[Lord Wolfson of Tredegar (Con)]

As I hope the House knows from this Bill and plenty of other Bills, I am very happy to discuss issues with anyone at any time. However, points of principle have been made, and points of principle have been answered by me as clearly and cogently as I am able to do. I think that the appropriate thing to do—relative newcomer as I am to this House—is that the Question on the amendment should be put. If people want to—

Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

Moved by

[Lord Paddick]

224: Clause 140, page 129, line 27, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”
Member’s explanatory statement
This amendment would raise the threshold for the standard of proof required to impose an SVRO, from a civil standard (the balance of probabilities) to the criminal standard (beyond reasonable doubt).

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[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the noble Baroness, Lady Meacher.

[Lord Paddick (LD)]

My Lords, with the leave of the Committee, I am going to make a slightly unusual request. The noble Baroness, Lady Meacher, cannot unfortunately be in her place. She was unable to be in the House at very short notice. However, the noble Baroness, Lady Armstrong of Hill Top, needs to chair a Select Committee at 3 pm, so I wonder if I could formally move Amendment 224 and then allow the noble Baroness, Lady Armstrong, to make her speech. On that basis, I beg to move Amendment 224.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I am enormously grateful to the noble Lord, Lord Paddick. I am chairing a Select Committee. I will come back for the rest of the debate, but I have to come back from Millbank, and I am not as fast as I used to be.

I want to be brief, but I return to an issue that I have consistently raised with the Minister over several Bills: the position of girls and women who are being sexually exploited, abused and subjected to violence. I want to help the Government to get out of the hole they are digging themselves into, where they are losing what they learned during the passage of the Domestic Abuse Bill about coercive control and about what happens to women who have been traumatised by this sort of behaviour. I want them to think about that in relation to my amendment on these very difficult serious violence reduction orders. I am not going to intervene in the rest, because I will support them if there is a vote at Third Reading, but this is a very specific amendment.

I realise the pressure on the Minister. I hope she has had a chance to look at the very short video that I sent her of a young woman from Newcastle—so the Minister should recognise the accent—telling of her inability to tell anyone of the activity of the perpetrator who was grooming and abusing her until she had been sentenced for something ridiculously small that was technically nothing to do with her abuse. Once she got to see a probation officer, she really felt that she had to say something about why she had been involved in criminal activity, and she was then referred to the charity Changing Lives; I ought to say that I still mentor the person who deals with women in that charity. The young woman from Newcastle was then able to talk about the abuse that she had suffered, the effects of what the perpetrator had done to her, and why this had led her to behave in the way she did.

It does not take much imagination to recognise that women who have been trafficked, groomed and subjected to physical, psychological and sexual abuse are not going to say what they know about the criminal activity of their abusers without themselves being supported and protected by those who understand trauma and what has happened to them. This amendment seeks to remove the “ought to have known” provision that will mean that women and girls who are judged that they “ought to have known” that someone in their company was in possession of a bladed article or offensive weapon could face two years’ imprisonment for a breach of the order’s terms. This simply criminalises women who are already being subjected to appalling criminal abuse. I do not believe that that is what the Government want to do. We know how we can change women’s life chances in these circumstances. We can do it. I work with people who do it, but this is not the way. This will not help them into a more stable and secure life. This will drive them into more criminal behaviour and into entrenching their problems.

I gather that this is seen as an extension of the joint-enterprise laws. The problem the Government have is that these laws have brought women into the criminal justice system when they had no involvement in the alleged offence. Research has found that in 90% of joint-enterprise cases against women, they had engaged in no violence at all, and in half of the cases they were not even present at the scene. We also know from research that more women and girls from BAME backgrounds are likely to be picked up under this sort of provision, and the Government really need to think about that, too.

This provision was not included in the consultation on these orders. I really do think that the Government did not have the opportunity to think the provision through in relation to the women and girls I am talking about. They have the opportunity to quietly drop it now before Report, and I hope and trust that they will.

Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

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

[Baroness Butler-Sloss (CB)]

My Lords, I had not intended to speak, but I would like to support what the noble Baroness, Lady Falkner, has just said. There are two groups of people who need support. I agree with her that the well-intentioned amendment of the noble Lord, Lord Blencathra, does not actually meet the problem. These two groups are the women who are women at birth and remain women, and those who were men at birth and become women. Both groups, even in prison, need respect for who they are and what has happened to them. I do not think that the prison system is well adapted at the moment to deal with trans women, and the Minister needs to think with some care whether rather more should be done to help that group of women.

However, the help for that group of women should not be at the expense—I venture into dangerous ground —of those who remain women. This is an extremely tricky area, and we know from areas outside the prison system just how tricky is it. I do not envy the Minister or the Ministry of Justice the situation in which they find themselves because this did not exist—as far as we knew—even 10 or 20 years ago but, my goodness me, it exists now. There are two groups, both of whom need not only respect, but understanding and care, even within a prison.

[Lord Paddick (LD)]

My Lords, I have been engaged in the debate on trans issues for many years and I have the scars to prove it. I have even been criticised for simply engaging in the debate, by some trans people for even listening to radical feminists, and by feminists because I am not a woman. I have met with, listened to, and talked with many people on all sides of these issues, including radical feminists, gender-critical people, trans people and intersex people. I continue to listen, and I continue to try to understand the views expressed by all sides.

I can feel my blood pressure rising when I hear the comments of many noble Lords around the Chamber. Then I think for a while, and I think to myself that it was not that long ago that I perhaps held similar views until I actually started talking to the people whose lives we are talking about—people who honestly and genuinely believe that they are in the wrong body, if you like, and those who genuinely believe that they are women even though they have male bodies, for example. That is when you begin to understand that these things, which appear completely counterintuitive, make sense for those people. I do not condemn people for what they have said because it was not that long ago that I might have thought along similar lines.

[Baroness Fox of Buckley (Non-Afl)]

Can I just clarify one thing? Many trans people do not agree with some of the orthodoxies that have become associated with trans activism. The inference was that some people possibly have a particular view because they have not met any trans people. That is not true. Whole swathes of trans people do not go along with a particular political opinion, for example in relation to prisons, as in this instance. I am concerned that it is not seen that those people who argue a gender-critical view are doing it because they are ignorant and have not got out enough.

[Lord Paddick (LD)]

I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.

The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.

Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.

Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.

A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues a legitimate aim, including

“facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health.”

It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:

“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—


as this amendment proposes. He continued:

“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”


The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.

The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:

“the need to assess and manage all risks is repeatedly emphasised”

throughout existing MoJ policies. He continued:

“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”


Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.

The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:

“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”


He concluded:

“the policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”

This is the same case that noble Lords have been quoting from.

Yes, the Lord Justice said:

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”


He added that some women prisoners,

“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”

This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.

There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.

The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.

[Lord Blencathra (Con)]

The noble Lord is looking at me and implying that I suggested that transgender men were a threat to children. I said no such thing at all. I quoted the case of a male rapist who had raped two children. I was not suggesting that this was endemic in the transgender community, or that they are a threat to children at all. That is not what I said, not what I implied, not what I intended.

[Lord Paddick (LD)]

I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.

The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.

[Lord Falconer of Thoroton (Lab)]

We, too, oppose the amendment. I think we all accept that transgender women are entitled to live in their chosen gender. The law protects transgender women and transgender men from discrimination because they are transgender men or transgender women. The position that is outlined in this amendment leads all transgender women to be consigned to the male prison estate—a point made very forcibly by the noble Lord, Lord Pannick. The moment one says that, one sees the total unthought-out nature of the amendment.

The way forward was, I believe, charted by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Falkner and Lady Brinton. The noble Baroness, Lady Falkner, indicated in a powerful speech that one is dealing, in effect, with rights that may conflict: on the one hand, the right of a transgender woman to be properly protected, including in her choice to be a transgender woman, and on the other, the possibility that certain prisoners, including transgender women, can be a threat to other prisoners in the women’s estate. The way that that is dealt with at the moment was well outlined by the noble Baroness, Lady Brinton, in her excellent and detailed speech. The prison authorities deal with it on a case-by-case basis using a series of detailed processes. Should we continue with that, or should we condemn every gender recognition-certificated transgender woman who is charged—maybe not convicted —of a violent or sexual offence to being in the male estate?

For my own part, it is pretty obvious that one should continue with the current arrangements. I am sure that they could be improved—I am not in a position to detail any improvements that could be given to them—but that case-by-case basis must be a better approach than that adopted by the amendment in the name of the noble Lord, Lord Blencathra. I would go further and say that I do not suggest to the noble Lord and those who have also supported the amendment that they come back with something else. This is much better dealt with on a case-by-case basis, so we on this side of the House oppose the amendment. We do not think it is appropriate; we do not think it even tries to balance rights, and we would not support it coming back on Report.

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[Lord Paddick (LD)]

That is exactly what the noble Lord said. He said that gender reassignment is a protected characteristic under the Equality Act and gender is not, which is what this amendment addresses.

[Lord Russell of Liverpool (CB)]

I thank the noble Lord. If anyone else wants further clarification, I am sure other noble Lords who have read the Equality Act will come in and back me up.

A particular point that I think my noble and learned friend Lord Judge would have made, were he able to be with us, is that he is clear that this amendment and change to the Sentencing Act would be welcomed by the judiciary, who are often asked to make quite difficult judgments. This would make their ability to do so a great deal easier.

There is another important point. The noble Baroness, Lady Newlove, mentioned how some police forces around the country voluntarily started recording alleged misogynistic acts, primarily against women. We had a briefing last week, which I attended online, in which two of the police forces involved—Nottinghamshire Police and South Yorkshire Police—gave evidence, several years on, about how effective that was. The thing that came out clearly, which they find very frustrating, is that having amassed this information and passed it on to the Crown Prosecution Service, the way in which the CPS deals with the information and data that has been recorded and given to it as additional evidence when considering or making prosecutions is wholly inconsistent between different offices and areas. One of the virtues of inserting this amendment into the Sentencing Act is that it would make it crystal clear to the Crown Prosecution Service that information must be part of any case that is potentially brought before the judiciary, because this data is required to be considered when thinking about sentencing.

I commend this amendment to the Committee. It is simple, unambiguous and protects everybody.

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[Baroness Noakes (Con)]

I will tell the noble and learned Lord what I know, which is that the Law Commission said that it hopes for a final report by the end of this year. It is then normal to give a period of time for the Government to consider their response and then there is a period after that for deciding on a legislative route.

My amendment offers a fast way through. If the Law Commission makes certain recommendations and the Government decide to accept them, my amendment gives the Government the power by regulations to amend Section 66 of the Act to achieve those recommendations. That is the best I can offer. I am sure the noble and learned Lord, Lord Falconer of Thoroton, can give me a long lecture on all those Law Commission studies that have never ended up in law and the length of time taken. But this is another good reason why we should not, I think, proceed in haste on this.

I was about to move on to the second reservation I have with Amendment 219, which is whether, if hate crimes were extended to sex, they should also include gender. Amendment 219 includes the formulation “sex or gender” and that was, indeed, the Law Commission’s provisional view. However, its conclusion was rather more tentative than some of the other conclusions in the consultation document, and I think this is an area where its final views will be particularly important. In its very large consultation document on hate crime, it did not spend very much time on whether gender should be included as an addition to sex, and I suspect there will be a fuller examination on the basis of the responses to its consultation.

Sex is a concept that is easily defined: it is binary, based on biological reality and recorded on everyone’s birth certificate. Sex, as we have been debating, is a protected characteristic in equality legislation. Gender, on the other hand, is a social construct. It has no ready legal definition and is most definitely not a protected characteristic. While gender is sometimes used in legislation, it has in the past genuinely been as a synonym for sex. However, I believe that it is increasingly problematic for the word “gender” to be used in that way because it is being used by those who claim that gender is different from—and sometimes more important than—sex, and it is not binary. Some describe gender as a spectrum, some say that there is a finite number of genders, but there is no consensus on how many genders there are, with claims in excess of 100 genders.

I can illustrate how difficult the use of “gender” is becoming from something I discovered called nominalgender. Nominalgender means,

“a gender where the person’s gender is so much just them that no one else can even experience it. Most nominalgender people will define their gender as a mashup between other genders of a certain kind (like beegender, angelgender, etc) but it’s not a multiple gender, it is one”.

Who knew, my Lords? This new lexicon of gender is part of a gender identity theory. It is a controversial issue and has not hitherto found its way into legislation for very good reason. I believe that legislating for hostility towards gender would make for very uncertain law. The use of the word “gender” has moved well beyond an attempt to achieve drafting neutrality and has started to acquire a very different meaning.

There was discussion earlier about where transgender fits in. I do not believe adding “or gender” is necessary to meet any needs of those in the transgender community. Hostility related to transgender is already included in hate crime legislation. If the term “sex” was added to Section 66, hostility towards, say, a transgender woman would be automatically covered, either because she is transgender or because she is presumed to be of female sex. Therefore, there is no need for the ambiguity of “gender” to be introduced into the definition of the hate crime because there were no people excluded from that.

I have deliberately not addressed the substance of Amendment 219, which is whether misogyny should be added to the list. I am personally not convinced that the case has been made, but I did not table Amendment 219A to oppose the extension of hate crime to sex. Indeed, my amendment would allow a fast-tracked route to legislating for it if that were the outcome of the recommendation from the Law Commission. I believe that Parliament would be negligent if it rushed through a solution without waiting for the Law Commission to report on this difficult subject. I know that many noble Lords feel strongly about misogyny, as I do as a woman, but I entreat noble Lords not to legislate in haste.

[Lord Paddick (LD)]

Could I ask the noble Baroness a question on her remarks? She said that sex was binary, male and female, as recorded on birth certificates. How does she account for people who have a gender recognition certificate, who are able to change the sex on their birth certificate in those circumstances?

[Baroness Noakes (Con)]

My Lords, that is dealt with by the Gender Recognition Act. In that case, the birth certificate is altered and for many purposes, though not for all, that person is treated as a woman.

--- Later in debate ---

If the promoters of Amendment 219A think that there may be other groups that need to be added and should not be left out, they can promote their amendment in addition to the one tabled by the noble Baroness, Lady Newlove. They certainly cannot suggest that it is an alternative, because sometimes the law needs to send a signal as well as work. This Bill is before us and we do not know when another one will come our way. We do not know when the Law Commission will report; we do not know what the reception to that report will be; we certainly do not know whether another Bill will come our way. How can we possibly, in good conscience, leave a status quo where an assault aggravated by race is covered, but an assault aggravated by the offender targeting a woman is not covered? I certainly cannot find that in my heart or in my conscience.

[Lord Paddick (LD)]

My Lords, I thank the noble Baroness, Lady Newlove, for so ably and comprehensively introducing her amendment. We return to an issue that we debated during the Domestic Abuse Bill, making misogyny a hate crime. From the Front Bench, we support Amendment 219 and oppose the alternative Amendment 219A.

When we debated the Domestic Abuse Bill, I talked about the appalling kidnap and murder of Sarah Everard by a serving police officer, and, as the noble Baroness, Lady Newlove, has said, many more women have died as a result of male violence since then. As the chair of the Police Federation of England and Wales said a few weeks ago, there is a problem with sexism and misogyny in the police service and in society as a whole. Urgent action is needed. Some changes will take a long time, such as changes to social attitudes and police culture, but some changes can happen now. We have an opportunity with this amendment to make one of those changes now.

I did not support the amendment to the Domestic Abuse Bill because I did not believe that that amendment made misogyny a hate crime. This amendment does. In the Domestic Abuse Bill debate, I suggested, as Amendment 219A does, that we should wait for the Law Commission report on hate crime laws. As the helpful briefing from the office of Stella Creasy MP says:

“Since 2010, more than half of Law Commission reviews have not been implemented at all, including the last review of hate crime legislation in 2014.”


I agree with the briefing’s assertion that this is an area where delay has tangible consequences. The evidence that there is a problem is overwhelming. In the wake of the tragic and horrific murders of Sarah Everard and Sabina Nessa, there is an opportunity to strike while the iron is hot, while public opinion is behind us, and where the issue is high in public consciousness. We need to seize that opportunity with Amendment 219.

I did not support the amendment to the Domestic Abuse Bill because I believed that it was the wrong Bill, where one third of domestic abuse victims are male. I believed that it was the wrong Bill because domestic abuse is one of the worst possible crimes, because if there is only one place where someone can feel safe, it should be in their own home—that domestic abuse could not and should be treated as any more serious than it already is.

I also said:

“If noble Lords or Members of the other place do not think we should wait for the Law Commission’s report, there is an imminent legislative opportunity to make sure that hatred of women is treated in every way as a hate crime. We could work cross-party to amend the Police, Crime, Sentencing and Courts Bill, which is being debated in the Commons, to make misogyny a hate crime in every sense of the term. Even if the noble Baroness is not convinced by the Government’s concession, we do not need to rush this amendment through now when the ideal legislative opportunity is at our fingertips.”


The ideal legislative opportunity is at our fingertips—it is here and now, and we should do it.

I have to say that I found the arguments in the briefing that noble Lords have been provided with less convincing on the issue of sex and gender. I refer again to what I said on the Domestic Abuse Bill:

“If the Government only require police forces to record crimes where the victim perceives them to have been motivated by hostility based on the victim’s sex … it does not go far enough. Current hate crime offences are recorded when anyone perceives the offence to have been motivated by hatred, not just the victim. The amendment includes sex and gender, and this is important. If an offender believes the victim is a woman, and anybody perceives that the offence was motivated by hatred of women, it should be recorded as a crime motivated by hatred of women. It makes no difference … whether the victim is a transgender woman.”


There may of course be circumstances where an attack on a transgender woman might be more appropriately recorded as a transphobic hate crime, but:

“Where the victim or a witness believes that they were attacked because they were a woman because they perceive the offender believed the victim was a woman, it should be recorded as such. The use of the term “sex” on its own may exclude some offences”.—[Official Report, 17/3/21; col. 363-64.]


It has been argued that, legally, such offences would not be excluded, but we need to consider the practical implications of excluding gender, as Amendment 219A seeks to do.

There are some who believe that trans women are not women but men. Some of those people are very strident in asserting that view. I want to avoid that debate if possible, but the fact is that people are saying this, and that view may influence victims, witnesses and police officers. Some people may not accurately report crimes motivated by misogyny if they believe that this does not apply to trans women. If we are to protect women and record all crimes motivated by misogyny, gender must be included. A proposal such as Amendment 219A, which makes life more dangerous for some women, makes life more dangerous for all women. From the Front Bench, we support Amendment 219 and oppose Amendment 219A.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party has been at the forefront of calls to make misogyny a hate crime. Former Nottingham police and crime commissioner Paddy Tipping ensured that it was recorded as a hate crime there, and we have heard from my noble friend Lady Warwick about his work with Chief Constable Sue Fish in that regard. During the passage of the Domestic Abuse Act, we secured the piloting of the recording of misogyny as a hate crime among crimes of violence against the person, including stalking, harassment and sexual offences. Police forces recording misogyny as a hate crime is an important step forward, but we want to go further by including sex and gender in the list of protected characteristics in hate crime laws for the first time.

I shall speak only very briefly because of the hour, but I want to conclude by saying that I thought that my noble friend Lady Chakrabarti encapsulated the decision before us. We in the Labour Party support Amendment 219 and oppose Amendment 219A. As my noble friend said, first of all, this relates to where an offence has already taken place. Secondly, it is already the case that race and religion are aggravating factors, and they have been for many years. We believe that misogyny should be added as an aggravating factor when sentencing.