Domestic Abuse Bill

Lord Paddick Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

First, I thank the noble Baroness, Lady Hamwee, for such clarity in raising some of my concerns. My enthusiasm for the Domestic Abuse Bill is somewhat muted by the worrying trend from the Government more broadly to use civil protection notices and orders to expand the coercive powers of the state, criminalising a greater range of behaviours without the bother of reaching the burden of proof of criminal law.

To be honest, I was surprised that those who usually speak up on civil liberties in this place seemed rather quiet on this, which is why I was glad to see this amendment. I know that the issue of domestic abuse is emotive and sensitive, and that we all want to do what we can to oppose it, but due process is important too, so I warmly welcome this amendment and thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for raising it.

It is a crucial amendment, because it aims to ensure that a criminal standard of proof is applied to a breach of a domestic abuse order. That is just not clear as the legislation is written. It seems an important protection for justice and the rule of law. The danger of any hybridisation of civil and criminal instruments is that criminal penalties can be given out without satisfying the criminal burden of proof, which means that someone can effectively be found guilty of a crime and labelled as a proven abuser without a legal test or representation. That feels far too subjective in the Bill, as it stands.

Of course, I understand that breaches of orders must have consequences. They are not just a piece of paper; they are not just there for show. The amendment seeks to clarify how the judgment of a “reasonable excuse” for a breach in the legislation, or that it was “beyond reasonable doubt”, is arrived at. It must be the role of the courts, but it is just not clear.

Dispensing with the criminal burden of proof can have some unintended consequences that are not in the interests of the victim either. Some campaigners fear that the police may choose to use breaches of an order as an easier alternative to proving charges for more serious criminal offences, such as assault or criminal damage. A lower threshold may imply that something has been done by the authorities—as it were, ticking a box—but perhaps more should be done. If the police go about choosing an easier tick-box solution, without the nuisance of gathering evidence that can be tested, that is a bad outcome, so we must ensure that order breaches are not used as an alternative to pursing criminal charges where appropriate.

It is also nerve-racking that some breaches of an order may be relatively minor and very far from criminally threatening to anyone, least of all the person the order is protecting. Some fear that alleged victims may be deterred from reporting breaches if that automatically criminalises their partner or their ex-partner, who might perhaps be the parent of their children.

The worry is that those who the Bill seeks to protect are being sidelined in the process and potentially disempowered. Their agency is potentially undermined by decisions taken by the police or third parties who can use breaches of an order to criminalise alleged perpetrators, regardless of what the victim wants or of however minor the breach. If that were to happen, the main loser would ultimately be due process. I therefore support this amendment wholeheartedly and look forward to the Minister clarifying this or reassuring us that this is not a way of avoiding a criminal burden of proof.

[Lord Paddick (LD) [V]]

My Lords, I want to go one step back and start with domestic abuse prevention notices. These can be given by a relatively junior police officer, despite what the legislation describes as a “senior police officer”—I was a police inspector at the age of 23—on the basis that he has reasonable grounds to believe that P has been abusive towards another person aged 16 or over to whom P is personally connected and reasonably believes that the notice is necessary to protect the person from abuse by P. If P breaches the notice, P can be arrested and must be held in custody before they can be brought before the court. That is a lot of power invested in a relatively junior and potentially inexperienced police officer, with serious consequences for P. A practical alternative might be to seek the authority of a magistrate, in a similar way that the police might seek a search warrant, which can be done at short notice, on a 24/7 basis. Did the Government consider such an alternative?

As my noble friend Lady Hamwee said, domestic abuse prevention orders can be made by a court on application, and must be applied for if P is already subject to a domestic abuse protection notice. The orders are made on the basis that the court is satisfied on the balance of probabilities, the civil standard of proof, that P has been abusive towards a person aged 16 or over to whom P is personally connected and the order is necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse, carried out by P.

The order can be made in the absence of P, and it can impose a range of prohibitions and requirements. If P fails, without reasonable excuse, to comply with the order, he commits a criminal offence and can be imprisoned for up to five years. Normally an accused person is convicted of a criminal offence only if the offence is proved beyond reasonable doubt, and while I accept that a breach of the order might be so proved, the basis upon which the order is given is on the balance of probabilities.

When this House debated knife crime prevention orders, we discussed whether the breach of what is effectively a civil order, granted on the balance of probabilities, should result in a criminal offence, rather than a fine or a term of imprisonment for contempt of court without a criminal conviction being recorded against the perpetrator. In that case, the Government claimed that it was the police who said that a criminal sanction was necessary, rather than a civil penalty, in order for perpetrators to take them seriously. What is the Government’s reason this time?

As we discussed then, Parliament changed a similar regime introduced under the Crime and Disorder Act 1998 and the Anti-social Behaviour Act 2003, whereby breach of the civil order resulted in the criminalisation of many young people with no previous convictions for breach of an anti-social behaviour order or ASBO. Parliament replaced ASBOs with anti-social behaviour injunctions and community protection notices—a purely civil process—by means of the Anti-social Behaviour, Crime and Policing Act 2014.

On the basis of hearsay, potentially a malicious allegation, someone could be given a domestic abuse protection order, breach of which may result in a criminal conviction and a term of imprisonment. Can the Minister please explain why it is necessary for a criminal record to be created when there is a breach of the civil domestic abuse prevention order when it is not necessary in relation to anti-social behaviour injunctions and community protection notices?

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I am speaking to this amendment on the basis that the noble Baroness, Lady Hamwee, said that she will not be moving it to a vote, and that what she is seeking is, essentially, for the Minister to read into the record the contents of the letter the noble Baroness received, in which the Minister explained the nature of the process when people breach the DAPO.

I thought I would address a couple of the points made by the noble Baroness, Lady Fox, when she opened her contribution, in her typically provocative way, by saying she feared that the state was expanding its coercive powers. In some ways, the situation is more extreme than she or the noble Lord, Lord Paddick, said.

I remind the House that I sit as a magistrate in family and criminal cases; in particular, I sit on domestic abuse-related criminal cases. In domestic abuse criminal cases, if we find a perpetrator not guilty, we still occasionally give them what is now called a restraining order. We do that because although the necessary standard of proof has not been met, the alleged victim is clearly vulnerable, so we put a restraining order in place in any event. In the family court, we use non-molestation orders.

The purpose of the DAPO is to supersede restraining orders and non-molestation orders, but we very frequently put non-molestation orders in place without the alleged perpetrator present. The alleged perpetrator will be told of it and given an opportunity to come to court and argue against the imposition of a non-molestation order, but the reason the process is as I have described is to protect the woman, as it is usually. I understand that the purpose of the DAPN and the DAPO is to supersede the arrangements we have in place.

I understand the points the noble Lord, Lord Paddick, made about the appropriateness of these sorts of orders when compared to ASBOs and community protection notices. They are points he has made before and they are interesting. Nevertheless, as I said in my opening, I see that the purpose of this short debate is for the Minister to put on the record the contents of the letter he has written to the noble Baroness, Lady Hamwee, to make crystal clear the standard of proof that would be necessary to get a conviction for breaching these orders.

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[Lord Paddick (LD) [V]]

My Lords, I start by addressing directly the comments of the noble Baroness, Lady Fox of Buckley. I have spoken before about the abusive relationship that I was in 20 years ago. What I have not talked about is the intimate video that my then partner recorded and subsequently kept in his father’s safe in France. People may question why anyone would allow such a video to be recorded, but in a coercive and controlling relationship, compliance is rewarded and defiance is punished. When what you most want is the love of your partner, and you know that not doing what he wants could result in alienation, abuse or physical violence, you acquiesce to things that you would not normally participate in.

I lost count of the number of times he threatened that, if he I left him, he would make the video public. It was not until I went on a residential training course beyond his immediate control and started talking to a female colleague that I realised how unhealthy the relationship was and how unacceptable his behaviour was. I resolved to end it. When I told him the relationship was over, after the initial fear from his threats to kill me, followed by the relief I felt when he finally removed his belongings from my home, the dread that he would deliver on his promise to release the intimate video became even more intense. That is why this amendment is needed.

As the noble Baroness, Lady Morgan of Cotes, and the noble and learned Lord, Lord Judge, have said, revenge may also be a motivation and further reform may be necessary. I am grateful to the noble Baroness, Lady Morgan, for raising the issue of threatening to disclose private sexual photographs and films with an intent to cause distress, and to the noble Lord, Lord Wolfson of Tredegar, for accepting her amendments. Threatening to disclose such material can be used as a means of coercive control both during a relationship and after it has ended, so we on these Benches support these important changes.

[Baroness Wilcox of Newport (Lab) [V]]

My Lords, I must begin by applauding the frankness and honesty of the noble Lord, Lord Paddick, in his speech. It is truly humbling to hear him speak so bravely about his own former coercive partner.

In bringing this much-needed amendment to the House, the noble Baroness, Lady Morgan, has recognised the changes that have occurred in society since the widespread introduction of mobile phone technologies and social media coverage. It has changed irreversibly the way in which we communicate, and the inherent dangers of the misuse of that communication have become increasingly prevalent. I warmly support her tenacity in getting the amendment through the process. Clearly, her colleagues and former colleagues in Government have listened and acted on her arguments. It will make a difference.

As a former teacher of media studies, I had no idea, just five years ago, when I was last in the classroom, how exploitative or dangerous the medium would become. The threat to share intimate or sexual images and films is an increasingly common tool of coercive control, which can have enormous negative impacts on survivors of abuse. While the sharing of intimate and sexual images without consent is a crime, threats to share are not, leaving survivors of this form of abuse without the protection of the criminal law.

During my reading for this topic, I was powerfully moved by a key report, Shattering Lives and Myths, written by Professor Clare McGlynn and others at Durham Law School, which was launched in 2019 at the Supreme Court. It sets out the appalling consequences for victims of intimate images being posted on the internet without consent.

Threats to share these images play on fear and shame and can be particularly dangerous where there may be multiple perpetrators or where so-called honour-based abuse is a factor. The advent of new technologies enables perpetrators to make these threats even where such images do not exist. But there is no clear criminal sanction for this behaviour. Lack of support leaves victims and survivors isolated, often attempting to navigate alone an unfamiliar, complex and shifting terrain of legal provisions and online regulation. The Domestic Abuse Bill is the most appropriate vehicle to make this change. Victims and survivors would benefit almost immediately and it would help them prevent further abuse and get away from their perpetrator. This amendment will close that gap in the law.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I agree with every word that we have heard so far, and I have signed all three of these amendments—I think that they are superb and have been carefully and expertly drafted. It is deeply unfortunate that the Government have not adopted them as part of their unusually co-operative approach in this Bill.

The need is very clear: the deeply sad Sally Challen case was only one proof point of the lack of legal protection available for survivors of domestic abuse. Women get a terrible deal in the criminal justice system. Most are there for non-violent offences, and many are there for really minor things like not paying their TV licence. However, sometimes, violence does happen, and, where that is related to domestic abuse, there needs to be a sufficient legal defence to recognise the reduced culpability.

It is obvious that judges and, sometimes, lawyers do not understand coercive control and other abuses. The excellent report from the Centre for Women’s Justice, which the noble Baroness, Lady Kennedy of The Shaws, referred to, is called Women Who Kill—I will give a copy of the executive summary to the Minister afterwards to make sure that he reads it. It lays out the response of the criminal justice system to women who kill abusive partners and the way the law itself, and the way it is applied, prevent women from accessing justice.

Women who have been abused by the man they kill are unlikely to be acquitted on the basis of self-defence. Of the 92 cases included in the research for the report, 40—that is 43%—were convicted of murder. Some 42—that is 46%—were convicted of manslaughter, and just six, which is only 7%, were acquitted. The use of weapons is an aggravating factor in determining the sentence, and the report found that, in 73 cases—that is 79%—the women used a weapon to kill their partner. This is fairly unsurprising, given women’s relative size and physical strength and their knowledge of their partner’s capacity to be violent.

However, as other noble Lords have pointed out, this contrasts with the legal leeway given to householders if they kill or injure a burglar. Therefore, we need legislative reform to extend provisions of householder defence to women who use force against their abuser. It is discriminatory to have a defence available to householders defending themselves but not to women in abusive relationships defending themselves against someone who they know can be dangerous and violent towards them.

In the week that Sarah Everard was abducted and, we suppose, killed—because remains have been found in a woodland in Kent—I argue that, at the next opportunity for any Bill that is appropriate, I might put in an amendment to create a curfew for men on the streets after 6 pm. I feel this would make women a lot safer, and discrimination of all kinds would be lessened.

However, once convicted, women’s chances of successful appeal are extremely slim. Society’s understanding of domestic abuse has come such a long way, even in the last few years, yet a jury is forced to apply outdated ideas of self-defence, such as responding to a threat of imminent harm, which have no relation to the realities of domestic abuse.

The Government have said that they are persuaded on the issue but will

“monitor the use of the existing defences and keep under review the need for any statutory changes.”

I simply do not believe that that is true. It is not appropriate for the sort of crimes that we are talking about. As such, can the Minister please tell me which Minister is charged with this review, how many civil servants are involved and when will they report?

[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Hamwee has already set out our support for all three of these amendments but I want to address the Minister’s remarks in Committee on Amendment 50.

I have seen misogyny described as the hatred of women who fail to accept the subordinate role ascribed to them by a patriarchal society, who fail to conform to the misogynist’s belief that women should be no more than compliant and decorative, whose role is to serve the needs of men. Out of such a false and outdated narrative comes the idea that physically stronger men should stand and fight while physically weaker women should run away. I am very sad to say that this appeared to be the Government’s position when we discussed these amendments in Committee.

In Committee, the Minister said correctly that what is sought is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in their home. That is, the degree of force used in self-defence by the defendant would have to be grossly disproportionate rather than simply disproportionate.

The Minister suggested that judges have developed common law defences and that we should trust them to apply these to domestic abuse cases. However, the Government did not trust the judges when it came to someone acting in response to an intruder in their home, passing primary legislation to change the acceptable degree of force to include disproportionate force in such circumstances by means of Section 76 of the Criminal Justice and Immigration Act 2008.

The Minister took up the challenge I put to him to demonstrate the difference between this amendment and Section 76. He said that in the case of an intruder, the householder is put in a position where they are acting

“on instinct or in circumstances which subject them to intense stress.”—[Official Report, 3/2/21; col. 2285.]

He also noted that the amendment did not appear to deal with the defendant’s option to retreat. Section 76 makes it clear there is no duty for a householder to retreat. With the greatest respect to the Minister, I suggest that it would appear from the Government’s response that neither he nor those advising him have been the victim of domestic violence. I have, and I can tell the Minister that when you are cornered in your own home—the one place where you should feel safe—by an abusive partner who is using physical violence against you, you are subjected to intense stress and there is a distinct possibility that you will react instinctively.

As I said in Committee, in my experience, having been physically threatened by an intruder and having been physically assaulted by my then partner, the intense stress is far worse and sustained when the person you rely on for love and affection snaps and attacks you or subjects you to abuse over a prolonged time. My own experience of domestic violence is that retreat just encourages further violence. Why should a victim of domestic violence retreat but the victim of a burglary stand and fight?

As noble Lords will have gathered by now, I am not a believer in domestic abuse being defined as a gendered crime—that it is overwhelmingly male violence against women. In my case, it was the fact that my abusive partner was far stronger than me that meant he felt able to attack me. However, two-thirds of victims are women and the overwhelming majority of them will be victims of male violence. Men are, on average, physically stronger than women and abusive men may even seek out weaker women to facilitate their abuse. Women are therefore far more likely to have to resort to the use of a weapon in what would otherwise be an unequal physical contest when they are attacked by a male partner. Their use of force is therefore more likely to be considered disproportionate, albeit understandable.

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[Baroness Bertin (Con) [V]]

My Lords, given the hour I will be very brief. I thank the Government and my noble friend the Minister for listening and laying their own amendments to close the loophole I raised in Committee. It is a very small gap, but one it is right to fill. Doing so sends the right signal domestically and internationally. The UN said in a recent report that the home is still one of the most dangerous places for women. In many countries, sex is still seen as an automatic part of the marriage contract. No data on marital rape is collected in many countries, where not only is it not a crime but social pressure means that it is rarely reported or discussed. We have been pioneers in this area of law; it is right that this country be able to uphold the high standards of our legislation at all times.

[Lord Paddick (LD) [V]]

My Lords, I am very grateful to the noble Baroness, Lady Bertin, for identifying this gap whereby marital rape is not an offence in some countries and therefore British nationals would not have been convicted had they committed marital rape in them. I am very grateful to the Minister for responding to the identification of that gap and closing it effectively.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this group of amendments addresses marital rape, whereby rape could be committed by a UK citizen in a country that does not consider it a crime and, presently, no prosecution could be brought. The noble Baroness, Lady Bertin, brought the matter to the attention of the House in Committee and has been successful in persuading the Government of the merits of her case and the importance of closing this loophole.

I offer her my sincere congratulations on her success. Her actions will protect women and girls from the horrific crime of rape and ensure that no rapist or perpetrator of these vile crimes can evade justice through making use of this loophole in the law and hide behind the fact that marital rape is not a crime in a small number of countries. This is a good example of the House of Lords doing its job well. An important issue was raised, well argued and supported across the House; the Government considered it carefully and responded positively, bringing forward their own amendments to address the issue.

Counter-Terrorism and Sentencing Bill

Lord Paddick Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I make a short intervention to support the amendment so ably moved by the noble Lord, Lord Marks; it is carefully put and more than adequate. I support it because it is important that a close look is had into the workings of these important sections. One year should be sufficient, with the emphasis on consultation, which is vital to get an independent reviewer to take the temperature of how the Act is working.

In my many visits to prisons in my professional career, I was deeply aware of how prisoners live cheek by jowl. Particularly in the absence of other subjects of conversation, I would have thought, as a lay man, that prisons were fertile ground for radicalisation. It goes without saying that expert advice is needed. We are considering longer sentences, reform and rehabilitation, radicalisation and segregation—all vital subjects—and we should look at how the Act is working. With those few words, it is a pleasure to commend the amendment.

[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lord Marks of Henley-on-Thames has outlined, our Amendment 16 in this group calls for a review of the impacts of Part 1of the Bill. Why is such a review needed? The Explanatory Notes to the Bill describe its purpose as being to better protect the public from terrorism, effectively by two main means: ensuring that serious and dangerous terrorist offenders spend longer in custody, and supporting their disengagement from extremism and their rehabilitation.

I am pleased to note there is no longer any pretence that longer sentences act as a deterrent to terrorist offenders. There was no such claim from the noble Lord, Lord Parkinson of Whitley Bay, either, when he introduced the Bill to this House on Second Reading. That will save some time.

The two premises on which the Bill is based appear to be these: that the public are better protected from terrorists if terrorist offenders are in prison longer; and that a range of tailored interventions while they are in prison will lead to their disengagement from extremism and their rehabilitation. In short, the longer they are in prison, the less likely they are to pose a threat to the public and the more time is available to deradicalise and rehabilitate them.

The first and most obvious problem with the first premise is that you cannot detain every suspected terrorist for the rest of their lives, despite the Government’s attempts in this Bill to achieve exactly that for some terrorist offenders. With an increasing number of exceptions were this Bill to be passed unamended, you cannot normally lock up suspected terrorists indefinitely or so curtail their freedoms as to effectively deprive them of their liberty indefinitely. We will come to the indefinite deprivation of liberty without charge or trial when we come to the changes to the terrorism prevention and investigation measures.

The Government’s current Prevent strategy, at paragraph 3.5, says that

“radicalisation is driven by an ideology which sanctions the use of violence; by propagandists for that ideology here and overseas; and by personal vulnerabilities and specific local factors which, for a range of reasons, make that ideology seem both attractive and compelling.”

Such propagandists exist in our prisons. The Government’s argument that the longer someone is in prison, the more time there is to support their disengagement and rehabilitation can also work against their deradicalisation and rehabilitation.

First, it provides more time for them to be radicalised, or further radicalised, by propagandists in prison. There is clear evidence that this is happening. On 25 January, the Times reports the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, as saying that there was an increasing “drumbeat” of links between prison and terror attacks, with offenders not being properly punished for owning radical material, preaching extremism and inciting violence. The Times notes that the man given a whole life sentence last month for murdering three men in a park in Reading in a terror attack last year was befriended by a radical preacher while serving an earlier prison sentence. Secondly, if these vulnerable people believe that the sanctions imposed on them are disproportionate, or that the system that led to their imprisonment was unfair, the ideology promulgated by these propagandists is made to appear even more attractive and compelling.

No one would argue against a proportionate sentence of imprisonment for someone convicted in a court of law of a terrorist offence, as my noble friend Lord Marks has just said, or that, for a limited time, a suspected terrorist who is believed to present a real and immediate threat should not have their liberty to carry out a terrorist attack prevented while evidence is gathered upon which to base a trial in a court of law. However, paragraph 3.6 of the same Prevent strategy says:

“There is evidence to indicate that support for terrorism is associated with rejection of a cohesive, integrated, multi-faith society and of parliamentary democracy. Work to deal with radicalisation will depend on developing a sense of belonging to this country and support for our core values.”


Disproportionately long sentences of imprisonment and indefinite deprivation of liberty without charge or trial would reinforce this rejection of our cohesive, integrated, multifaith society and parliamentary democracy. They would undermine any sense of belonging to this country and any support for our core values. Indeed, they begin to call into question some of our core values.

What evidence is there that it is easier to develop a sense of belonging to this country and support for our core values while someone is in prison, compared with when they are on licence in the community? The Times article I quoted previously reports the Independent Reviewer of Terrorism Legislation as saying that encouraging and inciting terrorism were being

“successfully combated in the community”,

unlike the failure to address these issues in prison. Although he is to conduct a review of what is happening in prisons, it appears to be limited to examining how terrorism is detected, disrupted and prosecuted behind bars and whether improvements can be made, rather than the comprehensive review called for in our amendment.

For all these reasons, there is serious doubt whether Part 1 of the Bill will achieve what the Government intend by it; therefore, our Amendment 16 is necessary. Other amendments in this group call for a review of the financial impact of the Bill and the impact on the prison population, both of which could hamper the effectiveness of any deradicalisation or rehabilitation strategy and any attempt to prevent radicalisation or further radicalisation in prison. Reviews are called for on the specific impact of the Bill in Northern Ireland and on the National Probation Service, and we support these amendments as well.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, we have had a wide-ranging introduction to this group from both the noble Lords, Lord Marks and Lord Paddick. As the noble Lord, Lord Marks, said in his introduction, the amendments in this group call for a series of reviews of different aspects of the system. He expressed his misgivings and uncertainty that the system as it currently operates is succeeding and concluded his remarks by saying that a more sophisticated approach is needed.

Amendment 16 is the first amendment regarding the independent review of provisions, to which the noble Lord, Lord Marks, has spoken. The second in the group, Amendment 34 in the name of my noble and learned friend Lord Falconer, is concerned with the financial impact of the changes. The amendment would require the Secretary of State to publish a financial impact assessment of the Act within three years of it coming into force, and this would include the financial impact of extended sentences, extended licence periods, and any additional staffing resources needed as a result of the Act.

Amendment 36 in my name calls for a capacity impact assessment. This amendment would require the Secretary of State to publish an assessment of the capacity of the system as a whole. In their 2016 White Paper, Prison Safety and Reform, the then Government committed to £1.3 billion to create 10,000 new prison places by 2020 and to renovate the existing estate. The 2020 target was later changed to 2022; so far, only 206 new prison places have been built, with 3,360 under construction. The main reasons for those failures and delays were the delays in agreeing and receiving funding to build new prisons. This meant that the construction work began later than planned. In addition, HMPPS was not able to close all prisons and replace them with new ones, due to high demand, which meant it received less money from the sales of old prisons.

Amendment 38, also in my name, proposes a review of the legislation as it affects Northern Ireland. All measures in the Bill as they pertain to Northern Ireland would be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive; a report would also have to be published and laid before both Houses of Parliament. This would ensure that the Government worked constructively with the Ministry of Justice and Northern Ireland Executive, and that all the Bill’s implications were subject to regular review through the prism of Northern Ireland.

Amendment 39 proposes a review of the National Probation Service. This would require the Government to commission and publish a review of the impact of the Bill on the National Probation Service within 18 months of it coming into force. The review would have to consider, among other things, the level of probation support offered to offenders, as well as the number of specialist staff employed by the National Probation Service, and their skills.

I have received some briefing material from Napo—formerly the National Association of Probation Officers —which makes the point that the probation service is in crisis and that many of the offender management teams are struggling to maintain a balance between experienced staff and newly qualified staff. It is not uncommon to find teams in the community where the most experienced officer has only two to three years of post-qualification experience. As recruitment increases, as it is projected to increase, the pressure on the frontline staff will grow, with more probation officers being moved into management and training roles to support the trainees. The point made by Napo is that a properly remunerated and supported expansion of the probation service is needed to face the challenges ahead.

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[Lord Morris of Aberavon (Lab) [V]]

My Lords, I support this amendment in the name of my noble and learned friend Lord Falconer, who has asked some very important questions. I say immediately that I valued very much the teach-in that I attended on Microsoft Teams on the working of the polygraph, and I thank the Minister for arranging it.

We are in a new field in this context, and an issue of this kind, when it is embedded on the face of the Bill, demands very close attention. I raised the issue briefly in my speech at Second Reading, and I support the noble and learned Lord, Lord Woolf, when he states that we are on a learning curve. Having assisted my Minister, Barbara Castle, many years ago, in piloting through the House of Commons the breathalyser legislation to tackle drink driving, which was a very controversial issue at the time, I would be the last to oppose innovation per se, and I do not oppose this proposal. All I am anxious to know, in the fullness of time, is how it is working.

I learned at the teach-in that the polygraph is a useful tool in the management of offenders. It only gives an indication of past conduct, but it could be used to pick up warning signs on what might be done in the future, and is a significant tool for the management of offenders. The important point above all else was that an offender could not be recalled for failing a polygraph test. I believe that the Minister confirmed this in his reply to an earlier amendment. It is not a magic bullet and it is not 100% accurate. The examples given of its use, in the course of the teach-in, involved such questions as, “Have you had contact with other terrorist offenders?” or “Have you used the internet for any purposes contrary to your licence conditions?”. The polygraph cannot predict future conduct, only past conduct.

At the teach-in, the noble Lord, Lord Carlile, asked whether the polygraph was used in other jurisdictions such as Canada, Israel and the USA. The reply was that it tended to be used for vetting purposes. It was not clear to me whether it could be used for other purposes. If I am wrong in my understanding of the observations that we have heard on this very helpful tool from a panel of experts, the Minister will correct me. However, the limited use of the polygraph is made clear in subsections (1) and (2) of the proposed new clause. It is important to put on the face of a Bill, as my noble and learned friend Lord Falconer of Thoroton has put in the amendment, the need for a pilot to be in use within six months, with a report to Parliament, in the terms of the amendment, within 12 months,

I will not take up the House’s valuable time in repeating the details that are set out in the amendment itself. All I will say is that, given the kind of problem that we face in the management of offenders, we should not shut our eyes to the possibilities of the actions now proposed. How important it will turn out to be will be a question of degree. Therefore, I support this amendment.

[Lord Paddick (LD) [V]]

My Lords, I wish either that this group had been grouped with the previous group or that I had spoken in the previous group, as we seem to be going over the same ground. Can I also push my luck, at the invitation of the noble and learned Lord, as an out and proud non-lawyer and wonder out loud whether lawyers feel somewhat threatened that there might be a machine more able to tease out whether someone is telling the truth or not, or even to tease out a disclosure, than a lawyer? I do not believe lawyers need to worry. I feel this group and the previous one turned into an extension of the teach-in. But I shall press on.

Amendment 20, moved by the noble and learned Lord, Lord Falconer of Thoroton, to which my noble friend has added her name, calls for a review of polygraph testing on terrorist offenders based on a pilot scheme. I take a slightly different view to my noble friends Lady Hamwee and Lord Marks, probably because they are pure Liberal Democrats, unlike me, who am contaminated by 30 years’ experience as a police officer.

Yesterday, in discussion on the use of polygraph testing in the Domestic Abuse Bill, the Minister talked about how polygraph tests were used. I join other noble Lords in saying how helpful the teach-in on polygraph testing provided by the Ministry of Justice was, and I thank the ministry for it. In that presentation, if I recall correctly, we were told that the tests are 80% to 90% accurate, on the basis of tests carried out on sex offenders. The tests measure physiological changes that occur if someone is trying to think of a wrong answer about an experience they have had in the past. People usually instinctively think of the truthful answer before they offer a dishonest alternative, and this produces physiological changes that the tests pick up. The evidence suggests a dishonest response cannot be used in court, and it is not used to recall someone to prison, but it might prompt further investigation by the police. Failing the test is not a replacement for any other form of risk assessment.

From the notes I made at the time, which take me back to giving evidence in court as a police officer, polygraph tests also prompt disclosures that might not otherwise occur. If such a disclosure indicates the subject has breached their licence conditions or is a threat to the public, this can result in prison recall. In short, disclosures can result in immediate sanction, but failing the test can only lead to further investigation.

Although polygraph tests have been used on a large number of sex offenders and have, therefore, been thoroughly evaluated, it will be more difficult, even with a pilot, to evaluate use with terrorists, as there are far fewer of them. My noble friend Lord Thomas of Gresford mentioned the right to silence, recalling what we were told in the teach-in. The difference here is that these are convicted offenders on licence, who have no right to silence. However, the science is the same whether we are dealing with sex offenders or terrorists, and polygraph tests are useful where there is a pattern of behaviour rather than a single act. It is, therefore, anticipated that their use in terrorism cases will be similarly effective. There has already been considerable experience of using polygraph tests and evaluating the results, somewhat at odds with the comments of the noble and learned Lord, Lord Woolf. But in agreeing with the noble and learned Lord, I think that it is true to say there has been very limited, if any, experience of using polygraph tests in connection with terrorism offences.

I feel sure that the Government will use polygraph testing with terrorists and, as we will hear in a later group, those subject to TPIMs, on a trial basis, as they intend to do in relation to domestic abuse. But the opportunities to evaluate their effectiveness with terrorists will be more limited, because, as I said, the numbers are considerably smaller. I am sure the Minister will say whether I got that right.

[Lord Wolfson of Tredegar (Con)]

My Lords, on the face of it the purpose of this amendment, tabled by the noble and learned Lord, Lord Falconer of Thoroton, is to provide for a pilot of polygraph testing for terrorist offenders in the UK and for a report to be prepared and laid with a recommendation on commencement before the provisions are commenced. I appreciate, however, that the debate has gone a little broader than that, and I will try to respond in my remarks to all the points put to me. I should say at the outset that I am impressed by the note-taking ability of the noble Lord, Lord Paddick, which has obviously not diminished with time. I hope that the notes which he took are consistent with not only what he was told at the meeting, as I am sure they are, but with what I said on the previous group and what I am going to say on this group as well.

Polygraph examinations have been used successfully in the management of sexual offenders by the National Probation Service since 2013, following an initial pilot. Offenders involved in the pilot stated that, although they did not like being tested, for many it helped them modify their behaviour and comply with other licence conditions. While I therefore respectfully agree with the comments of the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon, that we are on a learning curve, we are in fact someway up the curve, if I may put it in those terms. The noble and learned Lord, Lord Woolf, was right to remind us of Clause 35(1), which provides for regulations in this context. The breathalyser is a good example, as put before the Committee by the noble and learned Lord, Lord Morris of Aberavon, of how we must always in the criminal justice field avoid being shy of using technology where it is available. The question is how it is to be used; it is in that context that I come to the questions put to me by the Members of the Committee.

Having put that provision in place for sexual offenders, the independent evaluation of mandatory testing on sexual offenders carried out by the University of Kent produced extremely positive results. As the Committee is aware, we have since rolled out polygraph testing in that context. We must therefore be wary of two things. First, we must be wary of the trap of saying that because something might or might not be used in “The Jeremy Kyle Show”, it should form no part of the criminal justice system. “The Jeremy Kyle Show”, which I think has now stopped, can look out for itself. My concern is to ensure that we have proper provisions for polygraph testing in the criminal justice system.

The second thing we must be careful of, if I may respectfully say so, is not to fall into the trap of thinking that anything which comes from the United States of America is inherently suspect in the criminal justice field. I would gently point out to the noble Baroness, Lady Hamwee, that the American Polygraph Association’s standards are those of an international professional association for polygraph examiners. That association carries out research and provides accredited training for examiners. It also provides mandatory professional development training, which all examiners must complete every two years to maintain their accreditation. Its standards are used by examiners across the world, and the Government want to ensure that those standards are maintained for examinations conducted on terrorist offenders.

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[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lady Hamwee has explained, we wish to see the current arrangements for terrorism prevention and investigation measures remain as they are, despite having concerns about them existing at all. As the name implies, these measures were designed to prevent terrorism while an investigation takes place. As the noble Lord, Lord Anderson of Ipswich, has explained, intelligence is often received in relation to suspected terrorists that cannot be used in a criminal trial, either because it is not legally admissible or because it would reveal the source and potentially put the source’s life in danger. That needs to be balanced against Article 6 of the European Convention on Human Rights, enshrined in British law by the Human Rights Act 1998. It requires that, in the determination of a person’s civil rights and obligations or for any criminal charge against an individual, everyone is entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law—this despite what the noble Lord, Lord Faulks, has said about control orders withstanding such challenges in the past.

The answer to these potentially conflicting obligations is TPIMs, which are supposed to be a means of protecting the public while an investigation secures the evidence necessary to convict a person of a criminal offence. They were not intended to be indefinite house arrest without trial. As we will see in the groups that follow, the Government seek to overturn this principle of a time-limited safeguarding tool during an investigation into effectively indefinite deprivation of human rights without trial.

The conditions imposed by a TPIM can be draconian, as the noble Lord, Lord Anderson of Ipswich, said. The subject can be told where to live and have to tell the authorities about anyone else who lives with them. They may need to get permission to stay somewhere else, they may not be allowed to travel outside a specified area without permission, they may have to surrender their passports and they may be prohibited from going to a particular place or area without permission or without being accompanied by a police officer. The authorities can have complete control over the subject’s bank and credit card accounts and they can be told that they cannot possess cash over a certain amount. The authorities can have complete control over the sale or transfer of any property that the subject has and complete control over transferring money to anyone, as well as complete control over use of phones, computers and any other electronic communication device owned or used by the subject or by anyone else who lives with the subject—these measures affect not only the subject but their innocent loved ones as well.

Authorities can have complete control over who the subject meets or communicates with and over where the subject works or studies. The subject may be required to report to a specified police station at specified times and to have their photograph taken at whatever time and location the Secretary of State requires and they can be electronically tagged. On the one hand, noble Lords will understand why the authorities might want to impose such conditions if the person is believed to be a terrorist threat, but they will also understand that TPIMs amount to interference with some of the most fundamental human rights of the subject.

These restrictions on someone’s freedoms and human rights have echoes of the sort of restrictions imposed by ISIS when it declared territory it once held a caliphate. As the noble and learned Lord, Lord Goldsmith, said in a Guardian article written when this House was considering the Counter-Terrorism Bill on 13 October 2008,

“we should fight to protect the liberties the terrorists would take from us, not destroy them ourselves.”

The first element the Government want to change through the Bill, which is covered by this group of amendments, is the standard of proof required before someone can be subjected to a TPIM. Originally, as we have heard, in the Terrorism Prevention and Investigation Measures Act 2011 the Secretary of State had to “reasonably believe” that the subject is or has been involved in terrorism-related activity. This was changed by the Counter-Terrorism and Security Act 2015 to the Secretary of State having to be satisfied

“on the balance of probabilities”

—the standard required for a court to be satisfied in a civil case. The Government want to change this standard of proof to

“has reasonable grounds for suspecting”.

A police constable may arrest someone when he has reasonable cause to suspect, and I can tell the Committee from my own personal and professional experience that this is a very low bar indeed. Of course, we are not talking about a police officer detaining someone for a few minutes or a few hours but about restricting someone’s human rights for up to two years, or indefinitely, if the Bill passes unamended. That is a shocking and frightening prospect.

If noble Lords’ common sense and sense of justice are not engaged by my arguments, perhaps they will be convinced by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whom other noble Lords have mentioned. He has said:

“I am not aware of cases where the authorities would like to have imposed a TPIM if the standard of proof had been lower … If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; cols. 6-7.]


That is actually seven words, but I think we understand what he meant. To which, no doubt, the Government will deploy the same argument successive Labour Governments used in trying unsuccessfully to extend the period that a terror suspect could be detained by the police without charge, initially under Tony Blair’s premiership to 90 days, and subsequently under Gordon Brown to 42 days. Operational partners argued that, although limits on the period a subject could be detained without charge had not been a problem up until then, they could envisage a situation where it might be an issue in the future. I suspect that is similar to the arguments the Government will deploy here. Both times, Parliament resoundingly defeated the proposals.

It is important that we consider the reputation of this country throughout the world for the effective protection of human rights. We should not allow such draconian limits on people’s civil liberties to be imposed on the basis of such a low standard of proof—lower than any court employs, even in civil cases.

The noble Lord, Lord Anderson of Ipswich, in his Amendment 27, offers a compromise, which he is developing a reputation for, trying to steer between what is arguably necessary and reasonable and what he, not without precedent, thinks the Government might accept. He suggests in his amendment that, for the first year, while intelligence-gathering is in its infancy, a TPIM might be imposed on the Government’s standard of “reasonable grounds for suspecting”. After a year, the authorities should have been able to gather sufficient evidence for the Secretary of State to be convinced on the existing balance of probabilities. I see where the noble Lord is coming from but, with the greatest of respect to him, I am with the current Independent Reviewer of Terrorism Legislation on this one rather than with the former.

The noble and learned Lord, Lord Falconer of Thoroton, was not only a member of the Labour Governments to which I have just referred but, from memory, was fairly central to the attempts to extend detention without trial. His Amendment 28 would substitute the standard of proof required with

“on the basis of reasonable and probable grounds”.

I look forward to hearing his explanation of how this differs from the existing and government-proposed standards of proof, as, I must confess and with the greatest respect to the noble and learned Lord, when I wrote this speech on Sunday morning I had neither the energy nor the required determination to work it out for myself. Having finished at midnight last night, I have even less energy this evening.

The current Independent Reviewer of Terrorism Legislation thinks that we should leave the standard of proof where it is. We agree, which is why we believe that Clause 37 should not stand part of the Bill.

[Lord Falconer of Thoroton (Lab) [V]]

I am delighted to follow the noble Lord, Lord Paddick, as ever. I am sorry that he did not have the energy to get to my amendment, but I completely understand why that would be. The difference between my amendment and that of the noble Lord, Lord Anderson, is that mine seeks to unpack what the standard of proof would be; it requires an objective standard of “probable grounds”: in effect, balance of probabilities, but more spelled out. The difference between the amendments is that, in effect, the noble Lord’s amendment would give a year when the lower standard—namely, reasonable suspicion—could apply and thereafter insist on the balance of probabilities. The real difference is that first year of grace which the noble Lord, Lord Anderson, would give to the Government or the Secretary of State to have a lower standard of proof.

Our position on this side of the House is that the TPIM powers have utility to the Government for fighting terrorism. The noble Lord, Lord Paddick, indicated clearly the intrusive effect of TPIMs on those subject to them; for example, having to move to a different location, not being entitled to go to particular places, or not being able to associate or communicate with particular people. These are powers of utility for the Government. They are, however, intrusive and infringe against what would otherwise be people’s rights. Before those rights are taken away, it is for this House to decide what the right balance should be between those individuals’ rights and the protection of the public.

All those who have looked at it in any detail, in particular the noble Lord, Lord Anderson, and his successor as the terrorism reviewer, take the view that the higher standard of proof from that which the Government currently propose—namely, the balance of probabilities—has not caused them any difficulty in imposing TPIMs where they want to. As the noble Lord, Lord Anderson, put it, there is no need to lower the standard to keep the public safe.

In addition to the point that no change is required, a significant change is being made to the ability to roll over TPIMs indefinitely, so the consequence of the proposed amendments to the existing law being suggested by the Government in this Bill is to lower the standard of proof for no purpose and to do so on the basis of indefinite restrictions on individuals’ liberty.

The right reverend Prelate the Bishop of Manchester was, in my view, correct to say that the right approach is to ensure that the Government have the right powers but also to ensure that people are confident that they are being properly imposed. If people do not have that confidence, it will cause difficulties down the line.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister and I call the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

I am grateful to the Minister for his explanation but I am somewhat confused. He cites the evidence given by assistant chief constable Tim Jacques and the three examples that he gave. I will carefully read his evidence in Hansard and what the Minister has said the assistant chief constable said.

From what the Minister was saying, the assistant chief constable was saying why TPIMs were necessary. It was because—I think I am quoting the Minister accurately—there was not sufficient evidence to reach the criminal standard of proof, but the criminal standard of proof is “beyond reasonable doubt”. From the examples that the assistant chief constable gave—as I say, I shall go back and read them carefully—I thought there was definitely evidence that the person may be involved in terrorism on the balance of probabilities. There would therefore be no reason in the three scenarios that the assistant chief constable gave for issuing a TPIM against those three people, on the current evidence.

The Minister has apparently ignored the history of this Parliament and its views on so-called future proofing, when it comes to the deprivation of people’s liberties and the severe imposition of restrictions on people’s human rights, as evidenced by the former Labour Government’s attempts to extend the period that terrorist suspects could be detained by the police without charge. Parliament does not take kindly to, “Well, okay, we accept that there is no evidence that a change in the standard of proof is necessary in this case, but it might be in the future, so we’re doing it just in case”. We cannot deprive people of their liberty to the extent that TPIMs do on the basis of “Well, it might be required in future”.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, there were a number of questions in the noble Lord’s intervention there. I certainly encourage him to reread the evidence given by ACC Jacques on 25 June 2020. Asked specifically about the proposal to change the burden of proof, he said:

“The Security Service points to three instances where it thinks this would have utility from an operational perspective.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Public Bill Committee, 25/6/20; col. 20]


He then outlined the three scenarios that I have just repeated—but it is certainly worth looking at his evidence in full.

We are not ignoring the views of Parliament; that is why we are here in Committee, rightly scrutinising this Bill. But I repeat that we are talking about a burden of proof that has previously existed and been enacted by your Lordships’ House and the other place; it was repeatedly tested in the courts and found to be compatible with the ECHR, so I am not sure that I agree with the characterisation that the noble Lord gives.

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[Lord Paddick (LD) [V]]

My Lords, as I said on the previous group, we wish the current arrangements for terrorism prevention and investigation measures to remain as they are. I also said on the previous group that TPIMs were designed to be a temporary measure to protect the public from terrorism while an investigation gathered evidence to put before a criminal court. Currently TPIMs are in force for one year and can be extended by another year only once, although the Home Secretary can impose a new TPIM if necessary. Clause 28 allows a TPIM to be extended indefinitely. We do not believe that Clause 28 should stand part of the Bill, and Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation agrees.

As I described in the previous group, the restrictions that can be imposed under a TPIM can in some respects be similar to imprisonment, and in other ways more draconian than imprisonment. The Government do not normally seek to restrict those who can visit you in prison, or take control of your bank account. In important respects, it can be akin to detention without charge.

On the subject of detention without charge, my friend, the late Lord Lester of Herne Hill, also a former member of the Labour Party, said in a debate on a previous Counter-Terrorism Bill on 13 October 2008:

“To those noble Lords who say that the threat of terrorism is so appalling that we must do anything to counter it, logically their position is—or should be—in favour of internment”—


something that the noble Lord, Lord Anderson of Ipswich, has just mentioned—

“without any time limits, until the evidence has been forthcoming. That is what, at the height of the Second World War, Winston Churchill described as,

‘in the highest degree odious’,

and I think he was right … That is why this Committee has a peculiar responsibility today to strike a fair balance, as has been said, between the need to protect the lives of our people against a serious threat of terrorism and the need to uphold our tradition as a country which respects the rule of law”.—[Official Report, 13/10/08; col. 519.]

I think that they were both right. Were all the possible conditions available under TPIMs to be imposed, they would amount to internment. If they were imposed without time limit, it would amount to a breach of Article 6 of the European Convention on Human Rights. Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, has said:

“The Bill is conspicuous for its lack of safeguards. Safeguards are appropriate however carefully the Home Secretary and her officials consider TPIMs, and however much resource constraints inevitably limit the appetite for more and longer TPIMs.”


He suggests that the Home Secretary should be required to seek the court’s permission for any extension beyond two years, in the same way as she currently does when a TPIM is first made. Our Amendment 29 seeks to impose such a requirement on the Secretary of State.

The current Independent Reviewer of Terrorism Legislation goes on to suggest that, at the very least, an upper limit be placed on a TPIM. The master of compromise, the noble Lord, Lord Anderson of Ipswich, suggests in his Amendment 30 that there should be a four-year limit, double the current limit but short of indefinite, as the Government seek. I have to say that the noble Lord’s speech this evening was authoritative and convincing.

We believe that this is not a question for compromise but a question of principle. TPIMs are and should remain a temporary means of safeguarding the public during an investigation, and not a form of indefinite detention without trial.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

My Lords, I am grateful to the Minister. I have two questions. First, he spoke about Section 9 hearings and the appeal route under Section 16 making our amendment unnecessary. Can he tell the Committee how many times TPIMs have been revoked or restrictions eased as a result of each of these types of hearing?

Secondly, terrorism prevention and investigation measures are, as their title describes, temporary means of preventing terrorism taking place while an investigation tries to establish evidence to convict the person in a criminal court. Control orders, on the other hand, have been used in the past for public protection. If the Government are changing the nature of TPIMs and abandoning them as a temporary measure to enable an investigation to take place in safety, why do they continue to call them TPIMs? Why not now call them control orders, which are in fact what the Government are trying to use here?

[Lord Parkinson of Whitley Bay (Con)]

I will take the questions in reverse order. Prosecution is always the preferred method of disrupting those involved in terrorism-related activity. That will continue to be the case even under this Bill. Under the TPIM Act 2011, the Home Secretary is required to keep prosecution under review. That will not change with the amendments we propose to the Bill. If it becomes clear that there is an avenue for prosecution, the Home Office will support the police and the Crown Prosecution Service in bringing that prosecution against the individual and seek to remove the TPIM notice if it is no longer necessary and proportionate.

On the noble Lord’s first question about the number of times that appeals have been raised, if he is happy it would be better if I write and provide that information to him and the rest of the Committee so that I can be certain that it is up to date and accurate.

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[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lady Hamwee said, requiring a TPIM subject to relocate can have significant consequences, particularly, for example, if he or she has school-age children. It is a well-established fact in the rehabilitation of offenders that social ties are powerful in preventing reoffending. Relocating to another part of the country, presumably, would have the opposite effect.

Clearly, if there is a national security issue that requires the TPIM subject to be relocated somewhere they are not easily in contact with people they should not be in contact with, relocation should be considered. But to allow relocation simply to save police resources seems neither necessary nor proportionate.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment does not address head-on the power under a TPIM to require somebody to relocate. This amendment is only touching on whether the Secretary of State should by notice have power to vary a relocation measure, in part, because

“the variation is necessary for reasons connected with the efficient and effective use of resources.”

While I recognise the intrusive effect that relocation can have, I accept that there may be cases where national security demands it. I am interested to hear from the Minister what test is to be applied where a variation of a relocation order occurs when it

“is necessary for reasons connected with efficient and effective use of resources.”

I do not know, but I suspect that this concerns the perception that someone should relocate for national security reasons. Where they relocate to might be affected by the circumstances in which such an order might be enforced; the amount of resources that would be required if it was to be enforced where they normally live becoming disproportionate; or the amount of resources that would be required where they had been located becoming disproportionate. If that is right, I would have expected the measure in new subsection (1A) in Clause 39(2) to reflect something about proportionality. But there is nothing in it, and I would be interested to hear what the Minister has to say. I hope he will indicate that resource relocations will occur only when it is effectively necessary to provide for national security.

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[Lord Strasburger (LD) [V]]

My Lords, as we have heard, Clause 40 will allow the Secretary of State to extend the overnight curfew on a person subject to a TPIM to the maximum: every hour of every day. If the clause passes into law, it will mean that a person who has not been convicted of any offence can be condemned to full-time house arrest indefinitely, possibly until their death.

It so happens that we are all experiencing a very mild form of this regime right now during the Covid pandemic lockdown. I say a mild form because we are allowed to go to work. We can get out for exercise, to buy food, to seek medical advice or for a host of other exceptions. We know that this confinement, with all its exceptions, will last for only a few weeks, or at most months. Even so, cabin fever is rife and the increase in mental illness in the community is very real and alarming.

Imagine, if you will, how it would be if this serious constraint on our way of life and infringement of our liberties was permanent and without any of the opportunities to get out of the house that we have under lockdown. It would be unbearable. In some ways, it would be worse than a long prison sentence. In a maximum security prison, you still get some exercise outside your cell every day. But this is what the Government intend to be able to do to people who may well be innocent, whose incarceration has occurred without the Government even having to prove their guilt beyond reasonable doubt or on the balance of probabilities.

Under Clause 37, a Minister would merely need to suspect that they may be a terrorist—a truly flimsy threshold of proof, which is so insignificant as to be pointless and non-existent. Nevertheless, on this flimsy basis, Clause 40 allows a Minister to condemn a quite possibly innocent person to indefinite full-time detention in their home. Can the Minister please give a meaningful explanation or operational case for this change? In doing so, if he is going to deploy the flexibility argument again, could he explain who needs the flexibility, to do what and why? It is seriously unconvincing to me.

This change to the TPIM regime is cruel, inhumane and unfair. It must be seriously damaging to the subject’s mental health and that of those around him or her. This House must expunge this clause from the Bill.

[Lord Paddick (LD) [V]]

My Lords, at the risk of sounding like a broken record, we believe that the existing TPIMs are sufficient and are at the limits of what a country that has a reputation for upholding human rights should tolerate. The extension proposed in Clause 40 would extend the requirement to remain at or within a specified residence from “overnight” to what could amount to total house arrest. As the noble Lord, Lord Anderson of Ipswich, said, that is a requirement to remain at or within the specified residence between any hours. “As are specified” is yet another step too far, as my noble friend Lord Strasburger said.

On Amendment 31, I commend the noble Lords, Lord Hunt of Kings Heath and Lord Bach, for their relentless attempts to get police and crime commissioners more involved in operational policing decisions, including operations that may have national security implications. I accept that stop and search may be considered controversial, but it does not involve issues of national security of this nature, and I am not convinced that their amendment is necessary or desirable in this case.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, we have had two different debates in this group. The noble Baroness, Lady Hamwee, moved that Clause 40 should not stand part of the Bill, and I can do no better than the noble Lord, Lord Anderson, and his three questions, which I thought were very apposite and to the point. I will listen with interest to the Minister’s answers to those three questions.

My noble friends Lord Hunt and Lord Bach then spoke to their Amendment 31. As we have heard, the gist of the amendment is to formalise a relationship between the Secretary of State, PCCs and local chief constables to give more direct input by PCCs. In the words of my noble friend Lord Bach, PCCs are responsible for the “totality of policing” in their area. As we have heard, they are already involved in controversial matters such as stop and search and covert activities. Of course, I support my noble friends in trying to give the PCCs more formal involvement in TPIMs in their own areas.

I look forward to my noble friend Lord Bach playing a greater part in the proceedings of our House. He has for many years brought great insight into his many roles on the Front Bench, and occasionally on the Back Benches, but he will improve that even further when he comes back as a PCC. He may, of course, have to do extra time; we wait to see. I will listen with interest to what the Minister has to say, and I will support my noble friends.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister, so I call the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

My Lords, unfortunately, the imperfection of the current system of remote participation means that one has to put in one’s request to speak “after the Minister” before the Minister has finished speaking. If the Minister in his last few sentences answers the question that you were going to ask, your question becomes obsolete, as is the case here.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I now call the noble Baroness, Lady Hamwee, to respond to the debate.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

The noble Baroness, Lady McIntosh of Pickering, has withdrawn from this group, so I call the next speaker, the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

My Lords, I do not have anything to add on the substance of the amendments which my noble friend Lady Hamwee has outlined. However, I would like to go back to something that my noble friend Lord Thomas of Gresford raised in relation to the use of polygraph tests on convicted terrorists who were subject to licence: the right to silence. Quite rightly, the noble and learned Lord who was the Minister at the time said that, because these people would be convicted offenders under licence, they had no right to silence. But TPIM subjects are not convicted offenders on licence; they are unconvicted. That is the whole idea of a TPIM, and so they do have a right to silence. The question for the Minister is: would it be a breach of TPIM conditions, which is a criminal offence for which the person could be sent to prison, if they refuse to participate in a polygraph test or if, in a polygraph test, they refuse to say anything?

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[Baroness Hamwee (LD) [V]]

My Lords, I think that, on the last grouping, the question which lay behind this amendment was answered—but let me just check. Clause 42 covers the drug testing measure. My first thought was whether a subject could be caught up in being tested and fail the test because someone else in the house was using drugs which were detected, perhaps under his fingernail. The amendment raises the issue of reasonable suspicion, but I think the noble Lord has confirmed condition D—that the Secretary of State reasonably considers, in this case, drug testing necessary for the purposes we have talked about. It is the “reasonableness” of that consideration; I think he has confirmed that that will apply. So that he can confirm it again, I beg to move.

[Lord Paddick (LD) [V]]

My Lords, our Amendment 30E relates to subjecting the subject of a TPIM to drug testing for class A and class B drugs only, at a police station by a constable only. I have rather different questions from those of my noble friend Lady Hamwee. The question I cannot find an answer to—and I cannot think of one myself—is, “Why?” One might cynically argue that a suspected terrorist high on cannabis might be too chilled out to conduct a terrorist attack; conversely, if the Government fear a suspected terrorist might do something stupid, for example being emboldened under the influence of a class A or class B drug, why not test for alcohol?

Bearing in mind the restrictions on the subject’s movements and communications and on who they can associate with, where do the Government think the subject of a TPIM will get his supply of class A or class B drugs? Indeed, if the subject is taking class A or class B drugs, under the noses of the police or security services, does this not raise questions about what else he might be getting his hands on, such as explosives? In short, what is the point, other than placing further restrictions, being even more intrusive and making the subject’s life even more difficult?

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I have nothing to add to the points made by the previous two speakers.

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[Lord Paddick (LD) [V]]

My Lords, the only thing that I will add to what my noble friend Lady Hamwee has said about this amendment is an assumption that, even if the subject of the TPIM provides the authorities with all the details of his or her communications equipment—computers, mobile phone and so forth—it would be possible that they could end up borrowing a device from somebody else in his or her household. That is what the authorities are seeking disclosure of, to ensure that they keep track of all the communications the subject of the TPIM is engaged in. As my noble friend Lady Hamwee said, the provisions contained within Section 43(2)(a) reinforce the fact that TPIMs can impact to a highly intrusive extent on innocent people living with the subject of the TPIM.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment is probing the additional power given by Clause 43 of the Bill to allow the Secretary of State to seek disclosure of

“such details as may be specified of any electronic communication device possessed or used by the individual or any other person in the individual’s residence.”

Its purpose is readily understandable: namely, if the purpose of TPIMs is in part to prevent the subject of the TPIM communicating with anybody or receiving communications from anybody, the authorities should have the ability to look at all the electronic devices to which he or she has access.

However, as the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have both pointed out, that means, for example, that the wife, husband or children of a subject become subject themselves to an intrusive order. I would be very interested to know whether the authorities are going to take a different approach to the question of the subject of a TPIM’s own electronic devices, as opposed to those of his family or those belonging to those with whom he lives. What is the standard going to be? Necessary and proportionate? Strong case? I would be very interested to hear what it is. Just before I depart, I will pay tribute to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Although I have not agreed with every one of their amendments, they have shown indefatigable probing of this Bill and incredible good nature throughout.

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This leaves the completion of the review wholly in the air—a statutory kicking of the can down the road. It follows that both the amendments in the group fill a gap. The amendment in the name of my noble friends would again insert a time limit that ought to be met in the public interest. My noble friend Lord Paddick, speaking on an earlier group, posed the question of why. On this group, I pose the question: when?

[Lord Paddick (LD) [V]]

My Lords, I completely agree with my noble friend Lord Thomas of Gresford’s comments on the suspicions that many communities have about the Prevent programme, which is why, in the Counter-Terrorism and Border Security Act 2019, this House required the Government to undertake an independent review and report on the Government’s strategy for supporting people who are vulnerable to being drawn into terrorism. A timetable was set in the 2019 Act for the Government to make arrangements within six months of that Act being passed and to report within 18 months. As my noble friend said, Clause 47 attempts to remove any timetable for starting, let alone completing, the independent review of Prevent.

As my noble friend said, and as I said at Second Reading, the most important and effective way to keep people safe from terrorist attacks is to prevent those at risk of becoming involved in terrorism-related activity doing so in the first place. It is vital that we know how effective Prevent is at identifying those at risk of being radicalised and diverting them away from potential terrorist activity, and that this is done as quickly as is reasonably practicable. Unless problems are identified and addressed, lives could be put at risk.

The noble Lord, Lord Ponsonby of Shulbrede, suggests what might be described as a challenging and optimistic target of completing the review by 1 July 2021 in his Amendment 32. With the difficulties the Government have experienced over who should lead the review and the potential challenges ahead, there is a danger that a review within this timetable might not be thorough enough.

On 26 January, less than two weeks ago, the Government appointed a replacement independent reviewer of Prevent, William Shawcross. Mr Shawcross’s previous comments on Islam and the Iraq war have raised concerns in some quarters but, assuming he remains in post, the alternative timetable in our Amendment 33 should be achievable. This would give the Secretary of State six months to make arrangements for the review and for Mr Shawcross to lay before Parliament the report and any recommendations within a period of 18 months, beginning with the day this Bill is passed. I might be biased, but we prefer our Amendment 33.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, both amendments in this group would add a new statutory deadline for the completion of the independent review of Prevent. I certainly share the Committee’s firm commitment to the success of that independent review. It was clear in this short but important debate that our common objective is for a thorough and effective review to take place—one that will help us to learn how best to safeguard those who are vulnerable to being drawn into terrorism.

However, we must allow the new reviewer sufficient time to conduct such a thorough and effective review. These amendments would limit his options for reasonable flexibility, shorten the timeframe that he is given and put at risk his ability to do his job properly.

As the noble Lord, Lord Paddick, outlined, the review restarted two weeks ago, on 26 January, with the appointment of William Shawcross as the new independent reviewer. Our aim has been for the review to be completed by no later than August this year, but we will agree the precise timetable with Mr Shawcross shortly. We want to enable him to complete the review as swiftly as possible while affording him the consideration that his important task requires.

Of course, the uncertainties posed by the ongoing pandemic, such as the prospect of further ongoing restrictions on travel and face-to-face meetings, could, self-evidently, have implications for the reviewer, as well as for his team and all those who wish to provide input into the review. I am afraid that we therefore have to consider the potential impact of that on his ability to take evidence, including the vital work of engaging with different parts of the community. As the noble Lords, Lord Thomas of Gresford and Lord Paddick, highlighted, that work is vital, as is, for example, the reviewer witnessing for himself Prevent delivery in action so that he can deliver the thorough and evidence-based review, with practical recommendations for improvement, that we would like.

The Government believe that August this year is achievable, but this is of course dependent on the views of the new reviewer. He is independent, so I cannot speak for him at the Dispatch Box. We therefore recommend that the legislation affords the reviewer flexibility, should he feel that he needs it, to ensure that the valuable work of this review is not undermined. But we certainly hear what all noble Lords have said about the urgency, and I hope that they can hear that we share that. For those reasons, I urge the noble Lord to withdraw his amendment.

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[Lord Paddick (LD) [V]]

My Lords, the imperfections of remote working have again unfortunately intervened. I did ask to speak after the Minister on the last group, and I hope the Committee will indulge me if I ask one question of the Minister about the former group. The Government are saying that they hope the new independent reviewer of Prevent will produce his report by August this year. In our amendment, by my calculation, we are setting a deadline of August next year. Perhaps when the Minister responds to this group, he could also answer the question of why a 12-month deadline beyond what the Government are proposing themselves is not considered a reasonable time for that review to be undertaken.

Turning to this group of amendments, Amendment 37 requires a review and report on the effectiveness of current strategies to deal with lone terrorists. Amendment 40 calls for a report on which agencies are included within Multi Agency Public Protection Arrangements—or MAPPA—for the purpose of managing terrorist offenders. Both amendments are in the name of the noble Lord, Lord Ponsonby of Shulbrede.

In December 2017, the noble Lord, Lord Anderson of Ipswich, published his independent assessment of police and MI5 reviews into the Manchester Arena attack and three other incidents in London—all of which involved lone terrorists—which killed a total of 36 people. The report made 126 recommendations, later consolidated into 104 things that could have been done better by counterterrorism officials.

In 2019, the noble Lord, Lord Anderson of Ipswich, published a stocktake of progress on the recommendations in his 2017 report, including multiagency centres for managing the risk posed by those suspected of being engaged in terrorist activity, which presumably includes lone terrorists. I am not sure to what extent the review and reports the noble Lord, Lord Ponsonby, is calling for overlap with the work of the noble Lord, Lord Anderson of Ipswich. Perhaps the Minister can advise the Committee.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I apologise to the noble Lord. The delay in getting messages to the iPad on the Woolsack meant that I did not get the message that he wished to speak on the last group. But I now call the Minister, the noble Lord, Lord Parkinson of Whitley Bay.

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[Lord Paddick (LD) [V]]

I am very grateful to my noble friend Lord Thomas of Gresford for doing the heavy lifting in looking at these amendments and reassuring me that there is nothing ugly lurking in the pile. I am grateful for the undertaking from the Minister to write to us with further details.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, I am most grateful to the noble and learned Lord, Lord Stewart, for moving these amendments and for pronouncing “Tredegar” correctly. I am sure that the noble Lord who hails from, or has a connection with, Tredegar, will be happy with his pronunciation as well. I have looked at these Scottish provisions. I agree that they are technical, and I really have nothing to add.

[Lord Paddick (LD) [V]]

My Lords, I am minded to say, “Like the last lot”—but I am very grateful to my noble friend Lord Thomas of Gresford, and to the noble and learned Lord, Lord Stewart, for his offer to write with details. I would just say that I think it is rather cruel and inhumane to expect three government Ministers to be forced to remain to the end of the evening; perhaps they can come to some better arrangement on a future occasion.

[Lord Falconer of Thoroton (Lab) [V]]

Like the noble Lord, Lord Paddick, I too am grateful to the four Ministers for the care and good humour with which they have dealt with it all. Of the three amendments, Amendment 66 looks entirely technical. As the noble and learned Lord, Lord Stewart of Dirleton, says, Amendment 67 deals with a situation where you have a non-terrorist sentence and then, consecutively, before or after, a terrorist sentence. I cannot work out how you deal with that situation for the purposes of licences as a result of this amendment. Hopefully, that will be explained to us—for reasons that may be entirely my fault, it is not entirely clear to me from the wording of the amendment. As I understand it, Amendment 70 again deals with the position of consecutive sentences; and again, the effect of that is not entirely clear to me. It might be significant, because what we are dealing with are very long sentences. So I hope that the noble and learned Lord will explain this when he comes to write his letter to us. I am very much obliged.

Domestic Abuse Bill

Lord Paddick Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Baroness Bertin (Con) [V]]

My Lords, as a member of the Joint Committee that undertook pre-legislative scrutiny of the draft domestic abuse Bill, I know that the extraterritorial jurisdiction provisions of the Bill are intended to fulfil the UK’s obligations under Article 44 of the Istanbul convention. I welcome the fact that these provisions will bring the UK closer to ratifying a convention that we signed in 2012 and which will protect women and girls from violence and abuse.

My amendments concern a very specific issue—marital rape—where I believe the Bill as presently drafted may leave a potential loophole. I recognise that the drafting of the amendments may itself be imperfect, and my noble friend the Minister will no doubt speak to that, but I would like to explore whether the Bill could be strengthened so that people from this country cannot exploit laxer laws elsewhere.

In this country, the common-law presumption of a marital exemption from the offence of rape was overturned by your Lordships’ House in the case of R v R in 1991. Some countries similarly do not have any exemption for marital rape, and in others marital rape is explicitly criminalised, but there is a small minority of countries in which marital rape is not illegal. As drafted, the Bill appears to require that a prosecution for rape and other sexual offences committed against adult victims outside the UK may be brought in the UK only when the offending behaviour is also an offence in the country where it happens, but that requirement could prevent us prosecuting someone for marital rape committed outside the UK, if such behaviour is not included in or is exempt from the equivalent offence in the other jurisdiction.

This may be a small gap. I certainly hope that there would not be many, if any, cases of marital rape perpetrated by a UK person in a country that does not consider such behaviour to be a crime, but I believe that, if there is potential for this to occur, we should act to prevent it. I beg to move.

[Lord Paddick (LD) [V]]

My Lords, Section 72 of the Sexual Offences Act 2003 makes it an offence, in England and Wales, for a UK national or resident to commit sexual offences against children outside the UK, in an effort to clamp down on so-called sex tourism. Paragraph 2 of Schedule 2 to this Bill makes it an offence, in England and Wales, for a UK national or resident to commit sexual offences, under Sections 1 to 4 of the Sexual Offences Act 2003, against people aged 18 or over at the time of the offence, extending extraterritoriality to serious sexual offences against adults as well as children.

As the noble Baroness, Lady Bertin, has explained, the idea is to ensure that the Government comply with the Istanbul convention but, as she pointed out, for somebody to commit an offence, it has to be an offence not only in this country but in the country where the offence took place; in some of those countries, marital rape may not be criminalised. Therefore, I believe that the noble Baroness, Lady Bertin, has identified a potential loophole. I look forward to hearing what the Minister has to say in response.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Baroness, Lady Bertin, for tabling these amendments and spotting this loophole in the Bill. It is good to have this debate today. As she has said, marital rape can happen in a country where it is not illegal locally, and we would then not be able to prosecute the offence here in the UK. Nobody in this Committee wants that situation. I hope the Government will confirm that they either accept her amendments, or accept that she has identified a very serious loophole and bring in their own amendments on Report.

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[Baroness Donaghy (Lab) [V]]

I am very pleased to support the amendment in the name of the noble Lord, Lord Russell. Members may have seen recent reports in the media covering the experience of elite female athletes being subject to harassment and intimidation when doing training runs in the street. They cannot go to their athletic tracks to train at the moment because of lockdown. As has been said, this is not about wolf-whistling; it is about violence and harassment, mainly against women. If those athletes were competing in an Olympic stadium, they would be cheered to the rafters for their success, but because they are training on the streets and are anonymous, somehow they are objectified and are easy prey.

During White Ribbon Week, I asked the Minister to accept the two year-old Law Commission’s report recommending that misogyny be made a hate crime. This is now a matter of increasing urgency. The police forces that have been adopting policies to record gender hate crimes are to be congratulated, but this needs to be adopted generally. Superintendent Andy Bennett of Avon and Somerset Police said:

“We know women are less likely to report hate crime committed by strangers in public, which could be because discrimination is normalised for many women.”


As the noble Lord, Lord Russell, said, Nottinghamshire Police was the first force in England and Wales to start recording hate crimes against women and girls. Sue Fish, the former chief constable of Nottinghamshire Police, said:

“Some of the feedback we had was that women, for the first time, described themselves as ‘walking taller’ and with their ‘heads held high’.”


According to the White Ribbon Campaign, one in five British men thinks that feminism has gone “too far”. Online misogyny can also be a gateway to wider divisions in society. A HOPE not hate report shows that some young men who interact with men’s rights activists online are on the first step to more extreme racist or far-right groups and regard more rights for anyone—such as people of colour, the LGBT community and people with disabilities—as a threat to their status. The chief executive of HOPE not hate supports this amendment. He states that misogyny is a recruiting tool for hate groups and a means to radicalise, especially among the very young. These online groups radicalise young men who go on to commit acts of aggression designed to intimidate, humiliate and control women.

Having better-quality information throughout all police forces is not just another paper exercise. It helps to increase understanding of the causes and consequences of violence against women and girls, and it gives women more confidence that their issue will be taken seriously. It may even go on to protect more women from violence and intimidation. I hope that the Minister will accept this amendment.

[Lord Paddick (LD) [V]]

My Lords, this afternoon, many noble Lords have described misogyny outside the scenario of domestic abuse—such as elite athletes training in the street, as the noble Baroness, Lady Donaghy, just said. I hope to explain that, while I agree that the recording of misogyny as a hate crime is a good thing, it may confuse things when it comes to domestic abuse.

As has been explained, Clause 70 requires the Secretary of State to

“issue guidance to chief officers of police about the disclosure of police information by police forces for the purposes of preventing domestic abuse.”

This amendment is about including in that guidance that the police should record any crimes where the offender demonstrated hostility or prejudice based on sex, or where it is perceived that the crime was motivated by hostility or prejudice towards persons who are of a particular sex. This, in effect, would require police officers to record misogyny as a hate crime, although as it is worded in gender-neutral terms it would also require them to record misandry as a hate crime. I am confused about why misandry would be a hate crime, but we will move on. It then tries to bring this within the scope of Clause 70, which is about preventing domestic abuse, by mentioning taking account of evidence about the relationship between domestic abuse and misogyny and recording misogynistic crimes that, in the opinion of the police, have also involved domestic abuse.

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[Lord Paddick (LD) [V]]

My Lords, this has been a comprehensive debate. As noble Lords have explained, Amendment 148 would insert a new clause to ensure that those whose immigration status would exclude them from benefits and the right to rent can receive support and find a place to live if they are the victim of domestic abuse in circumstances that would otherwise leave them destitute and homeless. It sets out clearly what evidence must be produced to show they are a victim of domestic abuse.

As noble Lord, Lord Rosser, explained, abusers use survivors’ immigration status as a means of coercive control. As noble Lords have said, no one should be prevented from escaping domestic abuse because they cannot afford to leave or because they have nowhere to go, not least those who are additionally vulnerable because of their immigration status. Amendment 151, led by the right reverend Prelate the Bishop of Gloucester, requires the Secretary of State to make changes to the Immigration Rules to extend the number of victims of domestic abuse who can apply for, and be granted, indefinite leave to remain. It proposes that they should be granted limited leave to remain for not less than six months to enable this, or longer if the application is awaiting a decision, including access to support and accommodation during that time. As noble Lords have said, it is likely that victims of domestic abuse could be in danger were they to be forced to return to their country of origin, as the example graphically described by the right reverend Prelate demonstrated. As the noble Baroness, Lady Lister of Burtersett, has said, while the current pilot is welcome, it is not necessary. We know all we need to know to take the issue forward—a point reinforced by the noble Lord, Lord Hunt of Kings Heath.

As the noble Baroness, Lady Helic, and my noble friend Lady Hussein-Ece have explained, Amendment 160 gives effect to Article 4(3) of the Council of Europe convention on preventing and combating violence against women and domestic violence—the Istanbul convention—that requires all victims of domestic abuse, irrespective of their status, to receive equal protection against domestic abuse and equally effective support and, as such, encapsulates the essence of Amendments 148 and 151. Indeed, as the noble Lord, Lord Griffiths of Burry Port, has said, if Amendments 148 and 151 were agreed to, we could ratify the Istanbul convention. As he said, either this is a landmark Bill, or it is not. I agree with the noble Lord: this all comes down to money—money that the Government appear to be unwilling to spend.

It is concerning that the Home Office has responsibility both for providing support for domestic abuse survivors and for enforcing immigration legislation. With only 5.8% of refuge places available to survivors who have no access to public funds, as the noble Lord, Lord Russell, has said, something clearly needs to be done. With those affected numbering in the low thousands, it would not take much to implement these recommendations, and we support them. As my noble friend Lady Hamwee said, failing to take action would make it feel as though the state were complicit in these women’s suffering.

[Baroness Williams of Trafford (Con)]

My Lords, the amendments in this group centre on support for migrant victims of domestic abuse. I am grateful to the noble Lord, Lord Rosser, the right reverend Prelate the Bishop of Gloucester and my noble friend Lady Helic for proposing the new clauses.

All Members of the Committee will share the view that anyone who has suffered abuse, regardless of their immigration status, should first and foremost be treated as a victim. Where we differ, perhaps, is on how support is best provided to meet that end. Amendments 148 and 151 seek to provide, for all migrant victims of domestic abuse, at least six months of leave to remain, a route to indefinite leave to remain and access to publicly funded support. Amendment 160 seeks equally effective protection and support for all victims of domestic abuse, irrespective of their status, while also referring to Article 4(3) of the Istanbul convention.

If I have correctly understood noble Lords’ objectives in tabling these very thoughtful and well-intentioned amendments, they are seeking to expand the existing destitute domestic violence concession and the domestic violence rule to cover all migrant victims of domestic abuse: to place the DDVC in the Immigration Rules, as well as lifting immigration restrictions, for any migrant victim of domestic abuse. The Joint Committee on the Draft Domestic Abuse Bill recommended that the Government consider similar changes to the DDVC and DVILR. However, its recommendations did not include proposals to incorporate the DDVC scheme in the Immigration Rules.

As noble Lords will be aware, in response to the Joint Committee’s recommendations the Government committed to a review of the overall response to migrant victims of domestic abuse. That review has been completed and its findings were published on 3 July 2020. We were grateful to the specialist sector for the views and evidence provided during the review. However, it was unclear which groups of migrants are likely to be most in need of support, how well existing arrangements may address their needs, how long they might need support, and how they could be supported to move on from safe accommodation. It was clear, however, that a robust evidence base is needed to ensure that funding is appropriately targeted to meet the needs of migrant victims.

My issue with Amendment 151 is that it is based on a misunderstanding of the rationale for the DDVC and the domestic violence rule. Both were, and are, intended to provide a route to settlement for migrant victims who hold spousal visas. The system was designed in this way because, had their relationships not broken down as a result of domestic abuse, these victims would have had a legitimate expectation of staying in the UK permanently. Neither the DDVC nor the domestic violence rule was designed to support those without this legitimate expectation. This Government are concerned that expanding the scope of both would undermine the specific purpose that gave rise to them and introduce a route to settlement that might lead to more exploitation of our immigration system—or indeed of vulnerable migrants.

For this reason, at Second Reading in the House of Commons, the Safeguarding Minister announced that the Government would invite bids for grants from the £1.5 million support for migrant victims scheme. Such grants will look to cover the cost of support in a refuge or other safe accommodation for migrant victims of domestic abuse who are unable to access public funds. The Government will use the scheme to better assess the level of need for these victims and inform spending reviews about longer-term funding, which is very important. The competition for the scheme was launched on 15 December and closes on 8 February—today. The scheme will then run until 22 March, which answers the question from the noble Baroness, Lady Hamwee.

As I have indicated, our review has highlighted that a better evidence base is needed for migrant victims who are not eligible for the DDVC. Since 2017, the Government have provided over £1 million from the tampon tax fund to support migrant victims with no recourse to public funds. While clearly this fund has helped to deliver much-needed support for a number of individuals, and much has been learned, regrettably we require a more complete and reliable evidence base to enable us to make those long-term decisions. We particularly want to establish a robust dataset that we can interrogate about the circumstances in which support is most needed, the duration of support needed, what kind of support works best, and how individuals exit from support to regain their independence. We would like to do this work to ensure that the information that we need is available to inform future policy-making and that the decisions taken are sound.

I turn to Amendment 160. The support for migrant victims scheme and the associated evaluation work clearly illustrate that the Secretary of State is taking steps to ensure effective protection and support for all victims of domestic abuse. This scheme will be available to all migrant victims at the point of need while their eligibility for the scheme is assessed and other routes of support are explored.

The Government have been clear that migrant victims of domestic abuse should be treated first and foremost as victims, as the noble Baroness, Lady Hussein-Ece, and others, said. Data collected through the course of this scheme will provide the information that we need to assess current provisions and ensure that effective protection and support is available to migrant victims of domestic abuse. Therefore, while I am grateful to my noble friend and appreciate the sentiment and intention behind her amendment, we do not believe that this is necessary in light of the action that we are already taking. The provisions in the Bill apply equally to all victims of domestic abuse, whatever their status, including the ability to apply for a domestic abuse protection order or the provisions in respect of special measures and the prohibition of cross-examination in person.

A number of noble Lords, including my noble friend Lady Helic and the noble Lords, Lord Hunt of Kings Health and Lord Griffiths, have talked about the Istanbul convention. It is important to recognise that legislation is not needed to comply with Articles 4 and 59 of the convention. As set out in the latest annual report on our progress towards ratification of the convention, which was published on 22 October last year, the position on whether the UK is compliant with Article 4(3) of the convention to the extent that it relates to non-discrimination on the grounds of migrant or refugee status, and with Article 59, relating to residence status, is of course under review, pending the evaluation and the findings from the support for migrant victims scheme.

On the suggestion in Amendment 148 that the no recourse to public funds condition is lifted for all victims of domestic abuse, the Government believe that this is the wrong response. It is not subject to further definition in any way and would be a disproportionate and costly method of providing support for migrant victims. It is worth recognising that the principle of no recourse to public funds was established as far back as 1971, and no Government have sought to reverse that position. Successive Governments have taken the view that access to publicly funded benefits and services should reflect the strength of a migrant’s connections to the UK and, in the main, become available to migrants only when they have settled here.

These restrictions are an important plank of immigration policy, operated, as I have said, by successive Governments and applicable to most migrants until they qualify for indefinite leave to remain. The policy is designed to assure the public that controlled immigration brings real benefits to the UK, rather than costs to the public purse. It does this by prohibiting access to public funds other than to those with indefinite leave to remain, refugees and protected persons, and those granted discretionary leave.

Nevertheless, exemptions from those restrictions are already in place for some groups of migrants. These include refugees or those here on the basis of their human rights where they would otherwise be destitute. Those on human rights routes can also apply to have their no recourse to public funds condition lifted if their financial circumstances change and there is a risk of destitution, imminent destitution, risk to the welfare of a child or exceptional circumstances. Equally, as I have said, migrant victims on certain spousal visas can already apply for the destitute domestic violence concession to be granted limited leave with recourse to public funds.

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[Lord Paddick (LD) [V]]

My Lords, I thank the noble Baroness, Lady Lister of Burtersett, for so clearly and comprehensively introducing her amendment. Amendment 149 would insert a new clause that seeks to extend the protection from any coercive and controlling behaviour that occurs post-separation. The noble Baroness concentrated on economic abuse, but that is not the only form of ongoing abuse.

I was in a relationship that became increasingly abusive over a period of five years. The first time I noticed something was happening was when a friend, a former partner, sent me a birthday card. When I explained who it was from, my then partner tore it up and threw it in the bin. His controlling and coercive behaviour continued and got worse, and he eventually resorted to physical violence. When we split up, he threatened to kill me and threatened to write to my employer to try to destroy my career. I continued to live in fear of what he might do until, 18 months after we had split up, he colluded with a Sunday tabloid newspaper to expose intimate details of our private life, including making public my HIV status, as well as making false allegations that the newspaper eventually admitted were libellous. Fighting the issue in the courts would have resulted in me losing everything if I had lost that case. His actions did not amount to harassment or stalking.

Coercive and controlling behaviour can continue long after separation, with victims of domestic abuse continuing to live in fear of what the perpetrator might do next, and the law needs to reflect this. Section 76 of the Serious Crime Act 2015 applies only if the perpetrator and victim are in an intimate relationship or if they live together. This amendment would ensure that it would apply to all those who are “personally connected” as defined by Clause 2 of this Bill, whether they live together or not. As such, it would also include the circumstances that Amendment 157 seeks to cover, where a relative is exerting controlling or coercive behaviour, whether or not they live together.

As the noble Lord, Lord Hunt of Kings Heath, explained, his amendment is specifically aimed at protecting older and disabled family members. I strongly support Amendment 149 and welcome the focus which Amendment 157 brings to the abuse of older and disabled family members.

[Baroness Bertin (Con) [V]]

My Lords, it is an honour to follow the noble Lord, Lord Paddick, in this important debate; he speaks movingly and powerfully on this issue. I support Amendment 157, for which the noble Lord, Lord Hunt set out the argument very well, but I will speak primarily in support of Amendment 149, tabled by the noble Baroness, Lady Lister, to which I have also put my name. I also wish to thank her for all of her work in this area, and for eloquently speaking to this amendment, setting out in forensic detail why it is needed.

David Challen, son of Sally Challen, wrote movingly today in the Times. He said that leaving an abuser can be the most defining moment of a victim’s life. The fear of what will happen when they separate from their abuser is often overcome by an instinct of survival and the hope that they will be protected. However, as the law stands on coercive and controlling behaviour, victims who leave are not protected.

It is obvious that coercive control does not end when a relationship does and that very often the exact opposite happens, and the abuse escalates. As many noble Lords have said, this is particularly true of economic abuse, which does not require physical proximity to perpetrate, but can have a crippling effect on victims as their abuser seeks to make their life as hard and as financially unstable as possible. We also need to remember how often children are caught up in the continuation of this kind of abuse, with child maintenance very often being turned off and on like a tap. It is therefore absolutely right that the definition of domestic abuse in this Bill will include economic abuse and also recognises that the abuse can continue when the couple split up. We now need to take this opportunity, as others have said, to amend the Serious Crime Act 2015 to bring coercive control in line with the far better drafting of this Bill.

Not accounting for post-separation abuse is a serious shortcoming of the offence. Given that separation, as we have heard from other noble Lords, is a time at which women are at heightened risk of homicide, this shortcoming is dangerous, too. The Government made the point that existing legislation on stalking and harassment already addresses post-separation abuse. Like others, I absolutely do not accept that. These crimes are not the same and to suggest otherwise shows a lack of understanding about all these offences. I also do not believe that the Government’s outstanding report on controlling and coercive behaviour should stand in the way of this vital opportunity before us.

If the law on coercive control stays as it is, what kind of signal do we send to victims? It is this: “Stay put and we can charge him, but if you leave, we can’t touch him.” This makes no sense at all and must change. Failing to recognise that these abusive behaviours can occur post separation creates a dangerous gap in our understanding of this crime and would leave too many victims without the proper justice they deserve.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have tabled this probing amendment because I am trying to address the woeful underprosecution of domestic abuse and domestic violence in our courts. I do not think that the courts are quite set up to secure justice for survivors. Part of the problem is the intrusive nature of court into the survivors’ lives. The nature of domestic abuse means that deep and intimate details of a survivor’s life and their abuse can be exposed to the public eye. These intimate details can be exploited by the tabloid press or be the subject of trolling on social media. The higher the profile of the abuser or survivor or the more extreme the abuse, the more likely they are to face that media circus.

This should not be happening. Intrusion into survivors’ lives has to stop; they are revictimised and exploited by this publicity, which is incredibly damaging. Other survivors see this and it makes them less likely to report crimes that have been committed against them. It forces people to maintain secrecy for fear of becoming the latest victim of a media circus.

The courts are not currently set up to help survivors avoid this media chaos. There is scope for a survivor to seek a reporting restriction, but this is limited to situations where the restriction would help improve the quality of evidence or the level of co-operation given by a witness in preparing the case. This is not necessarily a survivor-focused approach; it is actually focused on helping the court to have the best available evidence, rather than the rights and protections of survivors. I hope that the Government will work with me to improve this. There must be some way to find agreement on the need to protect survivors, while allowing them to tell their story and obtain justice. I beg to move.

[Lord Paddick (LD) [V]]

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for introducing this amendment. The openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights. This underpins the requirement for a prosecution witness, including the victim, to be identifiable not only to the defendant but to the open court. It supports the defendant’s ability to present his case and to test the prosecution case by cross-examination. In some cases, it can encourage other witnesses to come forward, particularly if the victim has made false allegations in the past.

However, the principle of open justice can sometimes be a bar to successful prosecutions, and we know that domestic abuse survivors are less likely to report abuse if their name is going to appear in the press as a result. I speak from personal experience again. When I was a victim of domestic abuse, I was not prepared even to report my abuser to the police out of shame and fear that it might become public knowledge.

Domestic Abuse Bill

Lord Paddick Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Baroness Redfern (Con) (V)]

My Lords, I am pleased to follow my noble friend Lady Newlove and I warmly congratulate the Government on introducing the Bill. In doing so, I am pleased to have the opportunity to voice my support for its aims, in particular the proposals to reform the family court and provide protection measures for victims suffering domestic abuse. Even going to court is a harrowing and daunting process which can cause significant distress when a victim comes face to face with their perpetrator, even when the engagement is indirect. Measures must be in place to ensure the provision of separate entrances to the court building, as we heard earlier, and separate waiting rooms.

We know that domestic abuse comes in many traits. It is based not only on physical violence but on emotional, coercive, controlling or even economic abuse. Perpetrators of abuse should be inhibited from cross-examining their victims in person. Perpetrators should be prevented from directly or indirectly engaging with a victim during family court proceedings, particularly as many victims fear false accusations of parental alienation, which clearly has prevented many telling their personal stories. Protective screens in a court setting help to shield victims from their alleged abuser and prevent intimidation, as do live links, evidence-giving in private and greater emphasis on reassuring abuse victims, particularly children, who are always victims. These new measures will help to achieve the best result for those children.

Having received many briefings and personal testimonies, victims eagerly await new protective measures, so that the reporting of victims being re-victimised and retraumatised within the family court setting is stopped. The Bill must deliver a once-in-a-lifetime opportunity to transform our national response for domestic abuse victims and, in achieving the right support for those victims, will go a long way to helping them rebuild their lives. Importantly, they will be listened to.

[Lord Paddick (LD) [V]]

My Lords, I agree with the comments made by the noble Baroness, Lady Redfern, in a broader context. On the particular issue in this group, I have listened very carefully to the case made by the noble Lord, Lord Rosser, reinforced by the noble Baroness, Lady Newlove. The noble Lord talked about a risk assessment before cross-examination if someone has a history of abuse. Presumably he is referring to somebody with a history of abuse but whose convictions are spent under the Rehabilitation of Offenders Act. The noble Baroness, Lady Newlove, talked about repeat offenders. Repeat offending is very common when it comes to domestic abuse, but I wonder whether a perpetrator with a history of abuse, a repeat offender, is less likely to have spent convictions or cautions.

The Rehabilitation of Offenders Act is an important piece of legislation that allows offenders to move on from their previous offending, but my understanding is that if a court decides that justice cannot be done without the conviction or caution being taken into account, the court can take account of a spent conviction. This potentially means that a court could prevent cross- examination of a victim of domestic abuse if it decided that a spent conviction or caution was relevant.

I look forward to hearing the Minister’s understanding of the legislation as it is. We have no objection to the Government’s amendments in this group.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will begin with the amendments tabled by the noble Lord, Lord Ponsonby, to which the noble Lord, Lord Rooker, so ably spoke, and will then turn to the government amendments, which deal with various technical and drafting changes to the same clause.

As has been explained to the Committee, Amendment 114, in the name of the noble Lord, Lord Ponsonby, would remove a qualification of the automatic prohibition on cross-examination in family proceedings by those convicted of, cautioned for or charged with specified offences, and their cross-examination by the victim or alleged victim. The removal of this qualification would mean that spent convictions and cautions under the Rehabilitation of Offenders Act 1974 would continue automatically to trigger the prohibition, irrespective of how old they may be or how circumstances might have changed. I respectfully agree with the noble Lord, Lord Paddick, that the Rehabilitation of Offenders Act is a very important provision. It enables a line to be drawn and people to move on.

It is in that context that, at the moment, the form of the Bill is that spent convictions and cautions should automatically trigger the prohibition only where evidence in relation to the conviction or caution is admissible in relation to the current family proceedings. However, as the noble Lord, Lord Rosser, reminded us, and as the Government fully acknowledge, the damage caused by domestic abuse may often last for decades, sometimes a lifetime, and well beyond the point at which a conviction or caution is spent. One must also consider the point made by my noble friend Lady Redfern, that the court process is daunting, especially for victims of abuse. Therefore, the noble Lord, Lord Rosser, is right to test the adequacy of Clause 63 in guarding against cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Members of the Committee will have been moved by the personal testimony of my noble friend Lady Newlove, when she explained the effect that such cross-examination can have.

However, the Government believe that Clause 63 provides adequate protection in such circumstances. We must bear in mind that the automatic prohibition on cross-examination is also triggered where a protective injunction is in place—that is the force of the new Section 31S—or where prescribed evidence of domestic abuse is provided to the court; that is the force of the new Section 31T. Moreover, and of greater importance here, given the sometimes more historical nature of abuse, is what we intend should become Section 31U of the Matrimonial and Family Proceedings Act 1984. This is an important provision, which provides context against which the noble Lord’s amendment should be considered.

New Section 31U is in deliberately broad terms and provides for a wide discretion to meet the particular facts and circumstances of the case before the court. It enables the court, either in response to an application or of its own motion, to prohibit cross-examination where it would diminish the quality of evidence or cause significant distress, so long as to do so is not contrary to the interests of justice. Any such direction will remain in place until the witness is discharged, unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Therefore, to answer the point made by my noble friend Lady Newlove, we consider the Bill sufficient in cases of spent convictions, because that provision enables the court to impose the ban if it appears to the court that the two conditions in new subsection 1(b) are met. That provision would therefore also deal with the point made by the noble Lord, Lord Rosser, concerning cases of past injunctions or restraining orders. New Section 31U is a very broad provision that enables the court to respond to the facts of a case and ensure that a suitable order is made. I agree with the noble Lord, Lord Paddick, that it is important that the court has this ability, for the reasons that I have set out, under new Section 31U. I hope that this gives the Committee, particularly the noble Lord, Lord Rosser, what they sought, which, according to my note, was clarity and assurance. I hope that I have provided both.

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I clearly support these amendments to give women the protection they deserve, and I hope the Government will too.

[Lord Paddick (LD) [V]]

My Lords, as the noble Baroness, Lady Kennedy of the Shaws, has so clearly explained—and I pay respect to her enormous experience over decades in this area—Section 76 of the Criminal Justice and Immigration Act 2008 raises the threshold from disproportionate to grossly disproportionate before the force used by a householder for the purpose of self-defence can be considered unreasonable.

The fear generated by being attacked in your own home—the visceral reaction, the instinct to defend yourself and your property in such circumstances—is considered so strong that using disproportionate force to defend yourself is considered to be reasonable in the domestic setting. While it can be argued that there should be no distinction and that reasonable force in the circumstances should be enough, Parliament decided that being attacked in your own home sets apart this kind of self-defence from other situations. The Minister will not be surprised to hear me use the same expression as the noble Baroness, Lady Kennedy: what is sauce for the goose is sauce for the gander. What was seen, at least by the tabloid newspapers, as the “Englishman’s home is his castle” provision in Section 76 of the 2008 Act should equally apply to what will in most cases be a woman defending herself against domestic abuse.

I have personally been in both these scenarios. I have cowered behind my front door as a violent stranger tried to kick down the door of my flat; thankfully, the police arrived before the door gave way. I have also cowered as my violent partner kicked and punched me. The fear caused by not feeling safe in your home is truly terrifying, especially when you are being physically attacked. The fear I experienced was similar in both cases, but the latter was far more frightening. Being attacked by a random stranger does not hurt as much as being attacked by someone you have allowed yourself to be vulnerable with, and who has subjected you to coercive and controlling behaviour over a number of years.

Throughout the passage of the Bill, I have been keen to ensure that male victims and those in same-sex relationships are not forgotten. Even here, we are talking about someone who is physically weaker being attacked in their own home by a stronger person. In most cases, but not exclusively, this will be male violence against women. If she is to defend herself against a much stronger man, her options are limited and she may have to resort to using a weapon—for example, as the only way effectively to defend herself, or simply because of the instinctive reaction to grab whatever is available, such as a kitchen knife.

It is not difficult to envisage how such a use of force might be considered disproportionate but understandable, particularly if you fear for your life in circumstances such as we heard described when considering the previous group of amendments, and which the noble Baroness, Lady Kennedy, explained. It might be considered disproportionate, but not grossly disproportionate. Can the Minister explain why this amendment should not be accepted, in the light of the higher standard of acceptable force available to a householder under attack from a burglar?

Awareness has recently grown of how prolonged and sustained abuse can turn a victim into an assailant. As my noble friend Lady Hamwee has explained, Amendment 139 and the subsequent amendment would bring the law into line with these recent developments. As the right reverend Prelate the Bishop of Gloucester has explained, a trauma-based approach needs to be adopted. There clearly needs to be a change of culture in the criminal justice system in this respect, as well as a change in the law.

The mental health impact on women prisoners has been clearly set out by the noble Lord, Lord Bradley. As my noble friend Lady Hamwee has explained, Amendment 140 is almost identical to Section 45 of the Modern Slavery Act 2015. In the same way that I believe the burden of proof lies on the Minister to show why Section 76 of the Criminal Justice and Immigration Act 2008 should not apply to victims of domestic abuse in relation to Amendment 139, I ask the Minister why Amendment 140 should not apply to victims of domestic abuse when a very similar statutory defence is available to victims of slavery and trafficking. The Government must come up with very strong counter-arguments if these amendments are not to be accepted.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, we on these Benches fully support Amendments 139, 140 and 145, in the names of my noble friend Lady Kennedy of The Shaws and others. The issues addressed in these amendments have been raised in the other place by my honourable friend the Member for Birmingham, Yardley, Jess Phillips, and others during the Bill’s consideration there.

The amendments, as noble Lords have heard, are modelled on existing law and should not cause the Government any trouble whatsoever; I look forward to the Minister’s response. My noble friend Lady Kennedy explained the problems women face when they have killed a partner, having been the victim of abuse for years and years and then find themselves in the dock. The amendments seek to address that and reflect the realities of domestic abuse.

Everybody has been very complimentary about the Bill—it is a very good Bill, long overdue and we wish it success—but to become really effective legislation, it must incorporate these amendments or government amendments with the same intent. It is reasonable to afford the victims of domestic abuse who act in self-defence, often in their own homes, reasonable protection. They are compelled to defend themselves, having suffered years of abuse. As my noble friend Lady Kennedy reminded us—we have heard it many times before—on average, two women a week are killed by their partner or former partner. That is an horrific figure.

Amendment 139 would provide domestic abuse survivors with the same legal protection as householders have in cases of self-defence. Members have referred to such cases. Amendments 140 and 145 are modelled on Section 45 of the Modern Slavery Act 2015 and would give victims of abuse a statutory defence where they have been compelled to offend as a result of experiences of domestic abuse.

We have heard excellent speeches in this short debate from all noble Lords, particularly from the right reverend Prelate the Bishop of Gloucester. I endorse all the comments of noble Lords. My noble friend Lord Bradley, in particular, made a compelling speech. He raised the issue of mental health, its effect on women prisoners and the need for proper context to be taken into account when deciding to prosecute cases. I look forward to the response from the noble Lord, Lord Wolfson. If he cannot accept these amendments, I hope he will tell the Committee that he understands the issue and will go away and reflect on it, and maybe come back on Report.

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[Lord Paddick (LD) [V]]

My Lords, I am very grateful to the Minister. I have two questions which rather puzzle me. First, he talked at length about praising judges for how they can quickly and flexibly adapt the common law of self-defence to new cases and how beneficial it is for it to be dealt with in that way, rather than with rigid primary legislation. Can he therefore explain why Section 76 of the Criminal Justice and Immigration Act 2008 was thought necessary?

Secondly, the Minister talked about the option to retreat in domestic abuse cases. Referring to the two scenarios that I spoke about from personal experience, I certainly had the option to escape out of the flat—luckily it was a ground-floor flat—when somebody was trying to break the front door down in the burglar scenario, but when my abusive partner had me up against the kitchen wall, I had very limited options to retreat. I cannot see how the option to retreat is more valid in the burglar situation than it is in the domestic abuse situation. Perhaps the Minister can help me.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.

Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.

Counter-Terrorism and Sentencing Bill

Lord Paddick Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister from the noble Lord, Lord Paddick, so I call him.

[Lord Paddick (LD) [V]]

My Lords, I am very grateful to the Minister for his comments. Yesterday, in debating the Domestic Abuse Bill, the Government declined to include child offenders in the definition of “domestic abuse” because, as the Minister said, the Government did not want to criminalise children. In this Bill, however, they seem to be taking a hard line when it comes to child offenders. What is the difference in approach? Is it because the Government think that domestic abuse is not a serious offence where the public need to be protected but terrorism is?

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[Lord Woolf (CB) [V]]

My Lords, in view of the speeches we have had from a number of noble Lords, there is nothing which I would want to detain noble Lords with regarding this amendment. I agree that it serves a useful purpose and particularly associate myself with the remarks made by the noble Lord, Lord Carlile, with regard to the openness of the Front Bench on behalf of the Government. Like him, I hope that will be something that will happily continue.

[Lord Paddick (LD) [V]]

My Lords, I welcome the noble Lord, Lord Wolfson of Tredegar, to his first Bill. In my limited contact with him, I think that he is more than a match for the challenge the noble Lord, Lord Faulks, alluded to. I completely agree with the noble Lord, Lord Hunt of Kings Heath, in his assessment of the current dangers of longer prison sentences in the absence of an effective programme of deradicalisation and rehabilitation. The noble Lord, Lord Carlile of Berriew, also mentioned the comments of the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC. His concerns seem to chime with the concerns of all noble Lords who have spoken in this short debate. I do not share the faith that noble Lords have in polygraph testing, for the reasons explained earlier by Lord Marks of Henley-on-Thames.

My noble friend Lady Hamwee rightly expressed concerns that prisons continue to be incubators, hothouses, or academies of crime—use which term you will—for crime generally, as well as places where vulnerable inmates are radicalised, whether by right wing extremists or by others. If ever there was evidence of the need for these amendments, it is what the Government describe as the

“range of tailored interventions available”—[Official Report, 21/9/20; col. 1650]

to the perpetrators of the Fishmongers’ Hall and Streatham atrocities, that were designed to deradicalise and rehabilitate them while they were in prison. Unless and until the deradicalisation and rehabilitation of offenders is effectively applied to those sentenced under Part 1 of the Bill, and its impact is assessed, there is a real danger that the longer these terrorist offenders spend in prison, the greater the threat they pose to the safety of the public—whether by radicalising others in prison or directly upon their release. I intend to expand on these statements and the comments of the noble Baroness, Lady Jones of Moulsecoomb, which I agree with, when we come to the group beginning with Amendment 16.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, my Amendment 35 is in this group. I agreed with everything my noble friend Lord Hunt said when he introduced his amendment. My amendment is different in detail, but the overall approach is the same—that is, to have a realistic and timed review of the various approaches to the Prevent programme which the Government is embarking upon.

I got an interesting briefing on this debate from the probation officers’ trade union, Napo. It made a couple of points, which I will repeat. It said that in the offender management and custody model, it indicates that a high-risk offender should get one hour of individual contact per month with a probation officer. A probation office’s staff have a minimum of 70 clients, so it is impossible for them to meet that requirement. The central point that Napo made in the briefing was that, when one reviews approaches and puts down procedures, the reviews need to result in practical change on the ground, otherwise they are destined to be repeated without effective change.

I was very interested to hear the contribution of the noble Lord, Lord Faulks, who was a very effective Minister. He talked about his experience in that role. He also, interestingly, talked about the status of prisoners when they are in prison. I occasionally visit prisons, and I have visited Belmarsh on a couple of occasions. Belmarsh is a prison within a prison and there is undoubtedly status for the people on the inside prison; you can tell it from the tone of voice of the prison officers when they talk about the facility they are involved in managing. There is status to be gained through the way you are treated while in prison. I unfortunately know that to be true through friends of friends whose children have ended up in prison. There is a status to be gained within prison, which sometimes young men cannot have when they are outside prison.

I welcome the review of terrorism legislation by Mr Hall. I also note that it is Mr William Shawcross who has been appointed to review the Prevent programme, and I know he has extensive experience on this matter. The purpose of both these amendments is to tease out the progress and practical changes which the Government hope to make through reviewing the Prevent programme.

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[Lord Carlile of Berriew (CB) [V]]

My Lords, the town of Tredegar is noted for its town clock, which was erected, or at least its plinth was, as a result of funds collected at a bazaar. I believe that information to be correct—and from my position in my home I think I can see the noble Lord, Lord Wolfson, nodding in agreement with those facts. The Tredegar clock is always regarded as a symbol of the stability of the town—a town that has been through thick and thin, having been a place where coal was mined and steel manufactured.

The Parole Board has become one of the pillars of our prison system, and the board is seen as being as reliable as that town clock as it has developed over the years. I therefore join the noble Lord, Lord Ponsonby of Shulbrede, in being really rather determined to persuade Ministers that they should take another look at the role of the Parole Board in the sentencing and licence provisions provided for by this important Bill, which I support in principle, as someone who believes that the sentences for terrorism should be long but subject to a proper, just and reasonable form of review that gives reasons if it finds against a prisoner.

I am happy to support the amendment tabled by the noble Lord, not for its content but for the principle that it raises, and I invite the Minister to reflect accordingly.

[Lord Paddick (LD) [V]]

My Lords, I apologise for any inconvenience caused by my noble friend Lady Hamwee and me not speaking in the last group, where our names were included in the speakers’ list in error.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, addresses the serious question of the impact on prisoners who have no prospect of being released early or of being released at all, something that the noble Baroness, Lady Prashar, spoke about in an earlier group, as did my noble friend Lord Marks of Henley-on-Thames.

Some indication of the potential impact comes from a report in the Times, dated 20 January 2021, on inmates at the only remaining isolation unit for extremist prisoners in Her Majesty’s Prison Frankland. These isolation units were designed to keep the most dangerous ideological prisoners away from the general prison population so that they could not radicalise vulnerable inmates, as other noble Lords have mentioned in today’s debate. One of those units was mothballed before it was opened, another is empty, and the one at Frankland houses five prisoners out of a capacity of eight. There are currently about 200 terrorist prisoners in the UK.

According to the Times, a report by the independent monitoring board at the prison says that inmates in the unit have become more entrenched in their views, that they are refusing to co-operate or to engage in activities and programmes—except for the gym—and that they are distinguished from other prisoners by a lack of progression. They display antagonism and hostility to staff, with one of the prisoners responsible for a serious assault on a prison officer in the centre.

Locking people up with no incentive to behave or co-operate is likely to be counterproductive, and the Times report supports that assertion. We support the amendment.

[Lord Stewart of Dirleton (Con)]

My Lords, this amendment would require the Government to report on whether the removal of Parole Board consideration of certain prisoners’ release impacts their behaviour in prison. We return once again to the quite proper desire of the Committee for objective data to allow proper evaluation of the usefulness of measures. The point is an important one, but the Government do not think that a review and a report such as the amendment proposes would be practical or beneficial at this time. I will set out why in brief terms.

To carry out such an exercise would require there to be clearly defined factors influencing prisoner behaviour in custody, against which one could evaluate the distinct impact of the prospect of Parole Board consideration in a sentence. Such an evaluation method is simply not feasible. It would be impossible to measure the behavioural effect of a prisoner sentenced under provisions in this Bill expecting a future Parole Board hearing, compared to a counterfactual in which the Parole Board would consider the case. The amendment goes further, implying that the removal of Parole Board referral for some cases could impact on prisoner behaviour more widely. This would be even more impracticable to assess.

The policy intent across these measures is clear; the sentences available to the courts for terrorism offences should be proportionate to the gravity of these crimes and provide confidence for victims and the public. In some cases, this will mean that terrorist offenders spend longer in custody before release. To provide some reassurance further to what we have given from the Dispatch Box this afternoon about what will be done in that additional time in custody, I will make two remarks.

First, there is the hard work of prison staff with prisoners in their care, whatever their sentence or release arrangements. As your Lordships will have gathered, we deploy specialist counterterrorism staff to work with terrorist offenders, and we are recruiting more of these officers than ever before through the counterterrorism step up programme.

Secondly, the new counterterrorism assessment and rehabilitation centre, which your Lordships have heard about from the Dispatch Box, will drive the development, innovation and evidence-based delivery of our rehabilitative interventions. The centre will transform our capability to intervene effectively with terrorist offenders, including those sentenced under this Bill and those who will be released automatically. The Bill will be scrutinised in the usual way, including a statutory review after three years.

I now turn to contributions from Members in this short, but hopefully valuable, debate. I congratulate the noble Baroness, Lady Jones of Moulsecoomb; she succeeded in doing from her Benches what I was unable to do from the Dispatch Box earlier in answer to a direct request, by identifying Mr Shawcross in his new post. I hope the noble Baroness will accept my further assurances as to the seriousness with which the Government take the points she raised.

The noble Lord, Lord Carlile of Berriew, in an elegant allusion to the values of the town clock at Tredegar, drew our attention to the important work of the Parole Board. We on this side share the noble Lord’s high estimation of the Parole Board. I promise, on behalf of myself and my noble friend and colleague, that we will reflect carefully on the observations made by the noble Lord and by others in the course of debate.

Criminal Justice and Courts Bill

Lord Paddick Excerpts

Monday 20th October 2014 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I support the amendment of the noble Lord, Lord Marks. Before doing so, I join in his tribute to the Government for their achievement in reducing the numbers of young people in custody by 2,000 in the past few years. It is a tremendous achievement. In some ways, I regret having to disagree with the Government on this particular point, because, of course, I would like to support a Government who have achieved so much for the welfare of the kind of young people that we are dealing with here.

I listened with interest to what the noble Baroness, Lady Berridge, said about young black men—that they are more likely to be victims of knife crimes themselves— and her concern about that aspect of the issue. It is a difficult question. Obviously, young people who carry knives around are a threat to themselves and to other young men. They are likely either to get knifed themselves because somebody else sees that they have a knife or to harm somebody else with a knife. On the other hand, there has been a growth in gang culture, a transformation in gang culture. One can see this when visiting young offender institutions. Many young people might be in great fear for their lives. Perhaps one reason why some of them might continue to carry a knife, even though they have been convicted of having one before, is that they have a genuine fear that somebody else is going to attack them with a knife.

The noble Baroness, Lady Berridge, said that 16 and 17 year-olds can get married and join the Army. That is a good point. But I think we need to keep in mind what the noble Lord, Lord Carlile, said about the particular nature of the young people who come before the courts in these circumstances. We might need to bring up the issue of developmental delay affecting children who have experienced a long history of trauma, who have grown up in chaotic or insecure families, who might have been traumatised in various ways over a long period of time, who might have been let down by the people whom they most trusted, or who, when they have been betrayed in that way, have had no one to listen to them or try to help them recognise the trauma that they have experienced. Young people like that might experience a developmental delay, so that they might appear to be a normal 16 or 17 year-olds physically, but in their way of seeing the world, in their inner world, they are actually much more immature.

I particularly draw attention to the question of young people who have been in local authority care and of care leavers. On Friday, a clinical psychologist was speaking to the Institute of Recovery from Childhood Trauma. She was describing these children who have a history similar to the one I just described and the way that they will often become very self-reliant. They believe that they have to do everything for themselves and they are distrustful of people in authority. Therefore one can see a young person in care, or a care-leaver—I am talking about probably a small minority—who, if they are told by a policeman or a court that they must not carry a knife, will respond to that authority by saying, “Well, I’ll do exactly the opposite of what you’re telling me”. Their history of being abused by others may make them particularly fearful. It may seem to them particularly rational to protect themselves, to be self-reliant—to carry their own weaponry. Their experience is of a world that is unkind and which attacks them. Therefore I would be grateful to the Minister if in his reply, or perhaps afterwards, he could say whether particular attention will be paid to children in care and young people leaving care to ensure that they are offered, at least on a second conviction, the opportunity to have a mentor, for instance, or peer-mentoring, or some other diversion, which might make a great difference to them, rather than putting them into custody.

My final point is that, thanks to the Government’s great achievement in reducing the numbers of children in custody, custody for children is now a much more difficult experience in many ways. All the rotten eggs, if you like, are in one basket, and that can be a very tough environment. We are sending these young people into what is possibly a very adverse environment. I strongly support the amendment in the name of the noble Lord, Lord Marks, and I hope that your Lordships will accept it.

[Lord Paddick (LD)]

My Lords, I rise briefly in support of my noble friend Lord Marks’s amendment. In particular, I will address what has been suggested is an inconsistency, in that 16 and 17 year-olds who use knives to threaten people are subject to mandatory imprisonment, whereas this would be inconsistent with 16 and 17 year-olds being excluded from mandatory imprisonment for possession. However, there are circumstances, in particular where older young men pass weapons—particularly when faced with an oncoming police officer—to younger members of the group, who are intimidated into taking possession of those weapons. Therefore, they could in those circumstances be carrying a knife innocently, as it were. As my noble friend said, if those are the circumstances of the original or even the secondary offence, those individuals should not be subject to mandatory imprisonment.

[Lord Kennedy of Southwark]

My Lords, the amendment in the name of the noble Lord, Lord Marks of Henley-on-Thames, seeks to take out 16 and 17 year-olds from the scope of a mandatory custodial sentence for possession of a knife in a public place. I have considerable respect for the noble Lord and a good deal of sympathy for what he is trying to achieve. However, if he pushes this to a vote today, I will not support him in the Division Lobby.

As the noble Baroness, Lady Berridge, said, there is already provision in the Bill as it stands for the court to show some discretion if it is of the opinion that there are particular circumstances which relate to the offence and which would make it unjust to do so in all the circumstances. However, as the noble Lord, Lord Marks, said, this provision was put into the Bill during its passage through the Commons by the honourable Member for Enfield North, and technically it was not a government amendment. Perhaps that was not the easiest way to have done this. However, I see the deterrent effect of such provisions and I am not convinced that removing all 16 and 17 year-olds from the scope of this would be helpful.

I am well aware that knife crime is falling, and I want that to continue. However, there are also parts of London where this sort of crime is still far too high, and we have to take action to ensure that we reduce this type of offending. During Committee—and I have talked about this before—I explained to the House that I was born in Lambeth and grew up in Southwark. I am involved with a little charity there which works with some kids on the council estates. It is quite shocking when you go down there. There are kids living on the Wyndham estate who will not cross the Camberwell New Road into Lambeth because they are terrified that they will be attacked—knifed, and so on. That is what we have to deal with. We need the council to do things, but we also need strong deterrents from the courts as well.

This provision is for all young people—those 16 and over and those 18 and over—not for a first but for a second offence. So they will have previously been caught and convicted of an offence with a knife and can be under no illusion what the likely outcome is if they are caught for a second time. We must do everything we can to stop young people killing each other with knives on our streets, which is a tragedy. However well intentioned this amendment is, it will not help achieve that aim.

However, the Government should give a commitment to review this provision after a couple of years, maybe even bringing forward a sunset clause at Third Reading. That would enable us to evaluate exactly what happens over the next couple of years and to take any corrective action quickly.

Criminal Justice and Courts Bill

Lord Paddick Excerpts

Monday 28th July 2014 Lords Chamber

[Lord Carswell (CB)]

My Lords, in brief compass I will say, if I may, that I support the amendments and all that has been said about Clause 64 by those who have opposed it. I am a little hesitant to express matters in terms of my experience because the vast experience of noble Lords with judicial and advocacy experience is such that mine appears very minor. However, it is rather personal and I may be able to give the Committee some idea from that why I regard this as not only undesirable but unnecessary.

The courts have quite sufficient powers to deal with the matters contained in Clause 64. I can tell the Committee exactly why I say I know that. When judicial review was coming on stream in Northern Ireland in 1984 it was exactly the time I became a judge in the High Court. I was put in charge of those matters coming before the High Court and grew up with it. If I may say so, I helped to shape it and to form the judicial approach to the development of judicial review in our jurisdiction. I was very attentive all the while to the way in which it was being developed very well indeed in the jurisdiction in England and in other jurisdictions. I know from personal experience that the judges have the necessary powers. All they need to do is exercise them sensibly and robustly, with a careful eye to the justice of the individual case.

Once you write down these things and put them into legislation, as I have had occasion to say to the House before, two things happen. The first is that you cannot legislate for everything; there will be difficult and borderline cases when the shoe pinches and the exercise of discretion is an essential part of achieving justice. Secondly, once you write things down, it will give rise to an industry of finding ways round it. As the noble Lord, Lord Pannick, said, it will give rise to satellite litigation. For those reasons I strongly oppose the adoption of Clause 64. It may well be right—and I would not rule it out—that the pendulum should swing to some extent. The Government may have some perfectly valid points about matters that should be attended to, but this is not the way to do it.

[Lord Paddick (LD)]

My Lords, I rise briefly to speak to this amendment. It will become apparent very quickly that I am not a lawyer, and never have been, but I have been involved in one case of judicial review as a result of becoming a victim of phone hacking.

The fact that I was a victim of phone hacking became known to the police, but the police did not inform either me or other victims when that information came to their notice. As a consequence, together with others, we took the Metropolitan Police to judicial review on two counts: first, over its failure thoroughly to investigate phone hacking in the first instance; and, secondly, on its failure to inform those that it knew were either victims or potential victims of phone hacking to enable them to take steps to guard their privacy. The court found that whether the police should have investigated thoroughly the first time round was entirely a matter for the police. However, on the issue of whether the Metropolitan Police should have informed the victims of phone hacking, the court found that it was under a legal obligation to inform them. That important principle was therefore established through this judicial review.

Bearing in mind that by the time we brought the judicial review we had been informed by the police that we were victims of phone hacking, can my noble friend the Minister confirm that the outcome of that application would not have been substantially different for us? In other words, we already knew that we were victims, but we wanted to establish the principle that the police should have told us earlier. If Clause 64 were enacted, we may not have been able to bring that judicial review and establish the important principle that the police must inform victims of this sort of crime as soon as they become aware of it.

[Lord Mackay of Clashfern]

My Lords, I, of course, have nothing like the width of experience that has been spoken of already by a number of noble and learned Lords and other noble Lords. However, I have a certain amount of responsibility in connection with judicial review from quite an early stage.

Your Lordships will remember that the law of England originally provided for four rights, which were prerogative writs that had the effect of controlling the subordinate powers at the insistence of the High Court. That is because the High Court is a court of universal jurisdiction. The difficulties of these particular prerogative writs were gradually appreciated and, eventually, the judges decided that it would be a good idea to have a new form of procedure called judicial review. They ultimately incorporated it in a rule of court which, as I remember, was called Order 53, and that was the situation for some time. However, it was not long before the judges themselves decided that it was not good enough to have procedure of this kind depending only on an Order 53 rule of court. It was therefore important that this became statutory and that Parliament should have responsibility for the legislation which affects and controls the process of judicial review. It is therefore 100% clear that Parliament has authority to deal with this. That does not necessarily mean, of course, that any particular action proposed to Parliament by a Government is necessarily the best thing to do.

However, I would like to mention one or two aspects of this. The first is from the point of view of planning. I used to practise some planning work in the 1950s, 1960s and 1970s and in the planning legislation there was, I think almost from the start, always a provision empowering an applicant or a person aggrieved by a decision in the planning field to apply to the court. There were two branches of that: first, where there was no power to make the decision; and, secondly, where the decision was the result of a failure of process. I think that the current form is in the Planning and Compulsory Purchase Act 2004, where the second provision is,

“that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement”.

It is important to see that it applies where the interests of the applicant have been “substantially prejudiced” by a failure of procedure.

I think that that system worked well. In due course, of course, as a result of various decisions, including a decision of this House in its judicial capacity, in which I took part, it was held that judicial review was sometimes available even when there was a statutory form of appeal, and therefore judicial review started to be used in the planning field, notwithstanding the provision that I have just referred to. A number of cases came along, one of which the noble and learned Lord, Lord Woolf, will remember, when somebody was faced with a document at the beginning of a hearing before the inspector, and the inspector granted him an adjournment only until lunchtime. Lord Denning and his colleagues, notwithstanding the eloquent defence by Mr Woolf, as he then was, found against the Secretary of State. However, that is a success of the old form and the present form of statutory appeal.

In a more recent case at the Court of Appeal, the leading judgment was given by the judge who was the senior presiding judge in England in my time, Lord Justice Auld, who said, on dismissing the appeal:

“In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited— some might say abused—as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with—”

what was already there. So, the danger of judicial review as a means of trying to damage competitors was recognised. My noble friend Lord Horam has given a number of cases in which that has actually taken place. That warning was given a considerable time ago and I am delighted to hear that now—this is a fairly recent development—there is a Divisional Court in the High Court with expertise in planning able to deal with planning applications very speedily indeed. That is highly desirable.

The other thing I want to mention is that, when I was first in practice, we did not particularly think that we were not under the rule of law, although there was no judicial review. Another aspect of the law which was quite important was that there were finality clauses in most Acts of Parliament making the decision of the Minister or the authority final and unable to be upset by any judicial procedure. That was a fundamental protection for the Executive, for local authorities and so on—all sorts of bodies had that kind of protection. The Foreign Compensation Commission happened to be the one selected for trial and in Anisminic v Foreign Compensation Commission the judges found the way around this finality clause in such a way that these finality clauses have ultimately disappeared. Therefore, the scope for judicial review is very much greater than for the prerogative writs that were in position originally.

I was involved in one of the early cases on development of judicial review in respect of the standing of, or the right to bring, such a case. Certainly, there is an interesting issue in relation to some of the clauses in this part of the Bill about forming private companies simply for the purpose of promoting a particular judicial review in the hope of protecting perhaps fairly wealthy, not in any way impecunious, people from the possibility of costs. That is a development in relation to judicial review which I think requires consideration.

Criminal Justice and Courts Bill

Lord Paddick Excerpts

Monday 21st July 2014 Lords Chamber

We are not persuaded that there is any justification for the approach embodied in this clause beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime. I invite Members of your Lordships’ House not to yield to the temptation to look tough on crime by passing a measure that would actually do nothing whatever to reduce crime.

[Lord Paddick (LD)]

My Lords, like my noble friend Lord Marks, I also oppose this clause. The provisions for compulsory terms of imprisonment run contrary to all my professional experience as a police officer of over 30 years and my instincts as a Liberal Democrat. No doubt some of your Lordships might be more convinced by one of those categories of argument than the other. All I seek to do is ask your Lordships to consider that this provision may actually make us less rather than more safe.

At Second Reading, my noble friend the Minister offered but one reason to support this measure. He said:

“It sends out a strong signal that carrying a bladed weapon is serious and has serious consequences if you are caught for a second offence”.—[Official Report, 30/6/14; col. 1621.]

The question is: who will listen to that strong signal?

At Second Reading, I referred to the anecdote of the Commissioner of Police for the Metropolis, Sir Bernard Hogan-Howe, who is quoted as having visited HM Prison and Young Offender Institution Feltham, where young offenders apparently told him they no longer carry guns because there is a minimum term of five years’ imprisonment. However, a former police colleague carried out extensive academically overseen research into the attitude of offenders at Feltham and his conclusions were that the overwhelming majority of offenders rarely thought about the consequences of their crimes before they acted; they had no intention of getting caught, so the legal penalty was irrelevant.

To take a different example, how many of the millions of young people who take drugs every week in this country make their choice on the basis of what category the drug is in and therefore what the likely penalty is before deciding which drug to take?

Even if the Commissioner managed to find some who thought differently, there is a world of difference between a handgun—where there is no lawful reason for carrying one in the street—and a knife, where the carrier can give many innocent explanations to the police officer who stops him. There is also a world of difference between a minimum of five years’ imprisonment and the four months or six months proposed in this clause.

I have worked in parts of London where knife crime is prevalent. I was a sergeant and a chief inspector and a police commander in Lambeth. I was also the chair of trustees of a charity that was dedicated to diverting young people in Lambeth in south London away from crime. I have talked with former offenders and those working alongside them and all my experience tells me that the best way to deal with knife carriers is to allow judges the discretion to hand down the appropriate sentence tailored to the individual, and not to tie their hands by forcing them to impose a term of imprisonment.

Like my noble friend Lord Marks I will address the issue of judicial discretion that is within the clause. My noble friend the Minister may say that there is judicial discretion, and it is worth repeating that new subsection (2B) states that the court must impose a term of imprisonment unless it is of the opinion that there are particular circumstances relating to the offence or to the offender that would make it unjust to do so in all the circumstances. With the greatest respect to the Minister, he cannot have it both ways. Either this sends the clear message that a second-time knife carrier will go to prison if caught or it sends a mixed message that you may go to prison, depending on the circumstances. If it is the latter, other than partisan political point-scoring and the attention-grabbing and misleading headline, “Compulsory Prison for Knife Carriers”, what is the point of this clause?

Short-term imprisonment does not work. It delivers the worst of both worlds—taking offenders out of society and making it more difficult for them to maintain social ties and employment, while not allowing them to benefit from any kind of education, training or rehabilitation regime during their short time in prison. Fifty-nine per cent of those in prison for less than 12 months reoffend within a year of release. In June, Her Majesty’s Chief Inspector of Prisons, Nick Hardwick, reportedly said:

“Resources are now stretched very thinly ... there is a pretty clear choice for politicians and policy makers—reduce prison populations or increase prison budgets”.

Will the Minister—I also ask this of the party opposite—tell the House by how much the Government will need to increase prison budgets to cope with the increase in prison population that this provision will inevitably bring about?

For those who might say that a price cannot be placed on saving lives, my whole point is that this provision would do nothing of the kind. The courts already have the power, as my noble friend Lord Marks has said, to send those who deserve to go to prison for carrying a knife to prison—and to send them to prison for a long time. It is absolutely right that they should be able to do so.

A much better way to reduce knife carrying on our streets is to get ex-offenders—people who at-risk young people can relate to—into our schools, to tell young people, from their own experience, not to waste their lives and those of their potential victims by carrying a knife. With the greatest respect, they are far more likely to listen to them than to politicians and police officers about the sentence they will get in the unlikely event of their being caught.

We must increase the chances of knife-carriers getting caught. A much better way of reducing knife carrying on our streets is to encourage those within communities where the knife carriers live and operate to tell the police who they are, so that the police can target their stop-and-search operations on criminals. If these people know that passing such information will result in people being imprisoned without question, they will be even more reluctant to tell the police.

I served in inner London boroughs throughout my police career. Even as a senior officer I walked the streets. Last Monday was typical. When I left this House at 10.45 pm, I got the bus to Elephant and Castle and I walked home. If I believed that this provision would make people safer, I would have every personal incentive to support it and certainly would not oppose it. I do not support this clause and I urge noble Lords to oppose it as well.

Criminal Justice and Courts Bill

Lord Paddick Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Condon (CB)]

My Lords, I declare my interests in policing as a member of the Association of Chief Police Officers, and as a former commissioner and senior police officer. I first congratulate the Government on its resolve to deal with police corruption, past and present. Many wrongs have been righted that were long overdue. However, I share the reservations expressed by the noble Lords, Lord Blair and Lord Dear, on Clause 23, and expressed by the noble Lord, Lord Blair, on Clause 24.

The challenge in dealing with police corruption is not the absence of relevant offences; it has always been the inability to establish credible, usable evidence of such behaviour. A new offence does not mean that the job is done and police corruption is ticked off the list of things to do. The fight against police corruption requires a well resourced and confident Independent Police Complaints Commission; profound ongoing ethical and cultural change in the police service, as suggested by the noble Lord, Lord Dear; and vigilance that is sustained at all times, not just at the point of a particular scandal. All I ask the Minister to acknowledge on Clause 23 is that it is but a small piece of a much larger endeavour, which seeks to sustain and improve ethical policing, and deal with police corruption.

During my time in your Lordships’ House I have heard from all sides, and from the noble Lord, Lord Blair, that symbolic legislation is rarely good legislation. Clause 24, which my name is attached to in questioning, feels like a piece of symbolic, public relations legislation. There is no evidence that judges do not view the murder of police or prison officers with the upmost seriousness and sentence accordingly. I share the same concern articulated by the noble Lord, Lord Blair. The clause means well, and I thank the Government for it, but I am not being patronising in saying I hope they have thought through what could be the extreme implications of it. It may be only rare cases, but I fear that a criminal on the run who has—or believes he has—murdered a police officer has nothing more to fear if whole life sentences are in place. With a warped mind in such circumstances, they might seek to shoot, stab or bludgeon their way out of an arrest scenario—or seek suicide by policeman, as mentioned by the noble Lord, Lord Blair.

I do not feel strongly opposed to either of these clauses, but I have reservations relating to Clause 23, for the reasons I have said. I have a nagging fear that Clause 24 could have a perverse effect. All I seek from the Minister at this point is whether there has been sufficient consultation with the police service, as currently organised and led, relating to Clause 24. Can he reassure me that my fears are perhaps old fashioned and outdated?

[Lord Paddick (LD)]

My Lords, I briefly rise to support the noble Lords, Lord Blair and Lord Dear, on Clause 23. I spoke on this issue at Second Reading. I do not want to repeat what the noble Lords have already said very clearly and eloquently, but one of the reasons that was given for this new piece of legislation was that it would include the corrupt activities of police officers while off duty. However, in the Plebgate case, to which the noble Lord, Lord Blair, has already referred, one officer has been successfully prosecuted and jailed for misconduct in a public office. That officer was not on duty at the time of the offence—indeed, he was not even at the scene of the event. Therefore, I should like to hear from the Minister in what way this new legislation adds to the offence that is already successfully used to prosecute police officers for misconduct in a public office.

The noble Lord, Lord Dear, has a distinguished record in tackling police corruption, particularly in relation to the West Midlands serious crime squad. I believe that if the noble Lord is opposing Clause 23 then the Minister should listen very carefully to what he has to say.

I could not put the reasons for opposing Clause 24 any better than the noble Lords, Lord Blair and Lord Condon. The arguments that they have put forward are compelling. If a series of former senior police officers in this House are saying that the provisions of Clause 24 are both unnecessary and dangerous, I respectfully suggest that my noble friend the Minister should listen.

[Lord Kennedy of Southwark]

My Lords, like other noble Lords, I want to speak to both Clauses 23 and 24 to aid your Lordships’ House.

The Opposition cannot support the noble Lords, Lord Blair, Lord Dear, Lord Condon and Lord Paddick, in opposing Clause 23. I have heard very clearly the points that they have made concerning police officers being public servants with special provisions being made for them. They are obviously highly respected individuals and public servants but, with that, they carry great responsibility and great power. Where those officers exercise that power or privilege improperly, there can be tremendous consequences for the individuals concerned. That is the concern that we have on these Benches and it is why we will support the clause as it stands.

Moving on to Clause 24, the murder of a police officer is of course a most serious crime, and it is right that anyone killing a police officer in the course of their duty should receive a substantial jail term. This clause would make that a whole life term. My colleagues in the other place supported the Government, as we do today on the Opposition Front Bench. The noble Lords, Lord Blair, Lord Condon and Lord Dear, have all been senior police officers and have all expressed grave reservations about this provision, saying that it is unnecessary. Like the noble Lord, Lord Paddick, I very much hope that the Minister will meet the noble Lords and other representatives and look at this issue very carefully. The last thing that anyone wants to do is to agree to a Bill that puts more people’s lives at risk. I am very worried about that. We must look carefully at what they have said and talk to them about this issue because it would be madness to do anything else.

These are very difficult issues. Obviously everyone wants to root out corruption at any level. Regarding Clause 23, the consequences for the victims of police corruption are very serious.

Criminal Justice and Courts Bill

Lord Paddick Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Paddick (LD)]

My Lords, I am concerned about the general thrust of this Bill. As my noble friend Lord Marks of Henley-on-Thames and the noble and learned Lord have already said, that general concern is what appears to be a withdrawal of power and discretion from judges and handing it to Ministers.

There are particular provisions I want to speak about. The noble Lord, Lord Beecham, criticised the Government for headline-grabbing measures. I hope that the Labour Opposition are not going to support headline-grabbing measures that suit their advantage and will actually oppose some of those measures that I think are headline grabbing, the first of which is Clause 23 on the corrupt or other improper exercise of police powers and privileges. Members of the House may wonder why I am speaking about this. Having been a police officer for 30 years, I thought that it might be obvious. I do not think that I can be accused of being an apologist for the police service. Anyone who thinks that should see last week’s “Panorama” programme. Indeed, I was one of the parties who took the police to judicial review over the phone hacking issue, and I will come back to that in a moment.

A number of cases concerning police misconduct have recently come into the public consciousness—one was mentioned by the Minister in his opening speech. However, the one recent case that resulted in a prosecution was that of a police officer for misconduct in a public office. Although the police officer was off duty, the case was successful and he was jailed. Therefore, I have two questions for the Minister. Like my noble friend Lord Marks, I accept that the police have special powers, but is the measure necessary at all in that there is an overlap with misconduct in a public office, which appears to be entirely adequate to cover the matters in the new provision? I am a liberal and I believe that we should have new laws only if they are absolutely necessary.

Secondly, if a new offence of misconduct in a public office is necessary, why have police officers alone been singled out for this offence? Other people who hold public office have similar powers—for example, immigration officers and officers from Her Majesty’s Revenue and Customs. If we are talking about access to confidential information that might be given inappropriately to the media, we should note that people working in the intelligence services and the Ministry of Defence also have access to such information. Indeed, what about the conduct of politicians? We have powers and privileges and some of us have been found to have allegedly offered to ask Parliamentary Questions for money or claimed expenses to which we are not entitled. However, these new provisions do not cover any of that. Will the Minister therefore please reassure the House that the police are not being unreasonably singled out by this proposal? In his opening remarks, he said that the existing offence of misconduct in public office was not always best suited to dealing with corruption. I would be grateful if he would elaborate on what that means.

Clause 25, which was introduced by way of an amendment in the other place, concerns the possession of an offensive weapon or bladed article in public or on school premises and the imposition of a mandatory custodial sentence. Consistent with my general concerns about the Bill and the removal of judicial discretion, not only does this clause compel judges to impose an “appropriate custodial sentence”, it goes on to define what that sentence is. The whole point of having judges, social workers, the probation service and, in some cases, medical experts providing reports on the backgrounds of those convicted of offences is to ensure that custodial and non-custodial sentences imposed by judges are appropriate. I also suggest that the imposition of a fixed custodial sentence in criminal proceedings without taking into account the antecedents of the accused should never be considered an appropriate custodial sentence. One has to ask what is the purpose of imposing such a draconian and inflexible punishment? In my considerable experience as a police officer, criminals rarely, if ever, think about what the likely penalty will be before they commit a crime because they do not anticipate getting caught.

In support of this amendment, some have quoted the current Commissioner of Police for the Metropolis, who says that he met offenders in a young offender institution and they told him that they no longer carried guns because of the mandatory five-year sentence for possession. Rather than a single anecdote, a colleague of mine conducted academically rigorous research with young offenders at the same institution, albeit some time ago. Most of them did not understand how they found themselves incarcerated—let alone that this was a possibility at the forefront of their mind when they committed street robbery. Surely the purpose of any legislation relating to the carrying of knives and other offensive weapons must be to reduce the rate of offending and reoffending. Even with longer sentences, any beneficial effect of a custodial sentence is often thwarted by the overcrowding in prisons—a problem that will only be made worse by measures such as this. What is likely to have the most beneficial effect on knife crime is to create the realistic belief in the mind of offenders that they will be caught.

In order to improve the chances that this will happen, the police need to work closely with people in communities prone to this type of crime, who know who the knife-carriers are, and who need to be encouraged to pass on such information to the police. If these members of the public believe that their son, partner or friend will definitely be sent to prison if found in possession of a knife, they are even less likely to provide that information to the police than they are now. In the absence of such specific intelligence, the police have to resort to the type of stop-and-search operations that create division and resentment between the police and their communities. Making detection more, not less, likely and allowing judges to tailor sentences in a way that they consider offers the best chance of rehabilitating the offender before them, rather than an inappropriate short-term sentence that is unlikely to prevent reoffending, must be a much better way forward.

Finally, on a very different issue, I want to express my concern about the proposed changes to the provision of information about financial resources in relation to judicial review, contained in Clause 65. The new provision requires that the applicant for judicial review declares not only how the application will be financed but,

“information about the source, nature and extent of financial resources available, or likely to be available, to the applicant to meet liabilities arising in connection with the application”.

Again, I want to speak about my personal experience. As we have learnt over recent years and were reminded last week, evidence came into possession of the police that many people had potentially been the victims of phone hacking by News International, including me. Yet the police not only failed to properly investigate those offences first time round, apparently for reason of “lack of resources”, they also failed to tell the potential victims that they had identified them as potential targets of illegal phone hacking. In a police decision log relating to the case, a decision is recorded that these victims should be informed. There is no subsequent decision recorded that the police should not inform victims, and there is no explanation to date about why that original decision was not implemented.

I and other victims, including the noble Lord, Lord Prescott, decided to ask for a judicial review of, among other things, the police decision not even to inform the victims of potential phone hacking, as we felt that there was a fundamental principle here about the right to a private and family life, and the police’s responsibility to help such victims to protect their privacy. The noble Lord, Lord Prescott, put it more eloquently: “They should have told us to watch our phones”. Thankfully, our lawyers were equally incensed and agreed to work under a conditional fee agreement, but insurance against the costs payable to the other side if the case failed is very difficult to secure in such cases, and in this case it proved to be impossible.

Again thankfully, a rich benefactor agreed to underwrite the other side’s costs in the event of our losing the case, but on the strict agreement that his identity would not be revealed unless and until it was necessary to do so. We won the judicial review on the point that the police had acted illegally by not informing the victims of phone hacking in these circumstances, but it is doubtful that the case would have been brought at all if it were not for that benefactor. When I discussed the Bill with my lawyers, they questioned whether the proposed legislation would apply where costs are simply underwritten rather than when payment is made before the case proceeds. I should be grateful if the Minister can clarify whether a case such as mine would be affected by these new proposals.

It appears to me that important cases—my case is but one—are not going to be heard in the courts and important points of law are not going to be established if the Bill is passed as it stands. I wish my noble friend the very best of luck in reassuring me and this House on the issues I have raised.