Homes for Ukraine Scheme

Lord Ponsonby of Shulbrede Excerpts

Monday 28th March 2022 Lords Chamber

[Lord Harrington of Watford (Con)]

I agree with much of the sentiment of what the noble Baroness said. As far as the visa process is concerned, the only purpose is to provide security checks for this country. As I have said on the record before, when I was given the job to do by the Prime Minister, that was the only constraint. It is my job to make sure that the visa process is speeded up, and in the last two weeks we have gone on to a system where those with Ukrainian passports can fill out the form and download the visa without having to go to a visa centre, which they did only two weeks ago.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Minister said there were 20,000 applications for visas. Can he say how many Ukrainians have actually arrived in this country under this scheme? It is heartening to see how full-hearted the response from the British public has been to it, but what is the position with very young children, newly born babies and those soon to be born? Will their parents need similar visa arrangements for them to come to this country?

[Lord Harrington of Watford (Con)]

The answer to the question on the babies is that children under five do not have passports or visas. The reason why there still have to be visits to visa application centres is our fear that very young children will be used to be trafficked over here, and we need evidence that typically the mother—but sometimes the father—in question is in fact the rightful parent. We really do that as quickly and easily as we can. We cannot ignore the fact that there are people traffickers operating, and we have to do some due diligence.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Consideration of Commons amendments & Lords Hansard - Part 1
Tuesday 22nd March 2022 Lords Chamber

[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I declare my interest as director of Generation Rent. I will speak briefly to Motion M. Campaigners have argued consistently for a specific offence to more easily prosecute predators who seek to exploit women and men, including renters, by asking for sexual favours in return for a roof over their heads. It is disappointing that the Government did not accept the Lords amendment. It is not right that a victim has to be defined as a prostitute for justice to be served. The fact that there has only ever been one prosecution is proof that the current law is woefully inadequate.

However, movement has been made on this issue: there is recognition that it needs addressing and, of course, we welcome the public consultation as a step forward. In welcoming that, I ask the Minister—I am sure that other noble Lords will want to know the answer too—when the timetable and the terms of reference for the consultation will be published.

Regarding action against online platforms and hosts, for too long the tech firms have not been held accountable for hosting harmful and abusive content. Instead, they have been able to facilitate the exploitation of renters through sex-for-rent ads, completely without consequence. The Minister confirmed that this will be dealt with in the online safety Bill. Can she confirm that paragraphs 16(a) and 16(b) of Schedule 7 will mean that sex-for-rent ads will be classed as priority illegal content and will therefore be dealt with under the schedule? Can she confirm the sanctions that will be used to deter tech platforms from hosting sex-for-rent ads and the consequences if they continue to do so?

I appreciate that, as a Minister in a different department, the noble Baroness may not know the full detail of the DCMS Bill to answer my specific questions about sex for rent and Schedule 7, but if she could commit that she or someone else will write to me to explain exactly how the online safety Bill will deal with online sex-for-rent ads under the “Priority offences” schedule on illegal content, I would be very grateful. Will these online safety provisions be part of the public consultation or will the consultation deal solely with the criminal justice aspects of sex for rent?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking the noble Baroness, Lady Williams, for the way in which she introduced the two government Motions.

First, on Lords Amendment 70 in my name and the Government’s Amendment 70A, it is fair to say that the Government’s response goes wider than my original amendment. That is a good thing. It is indeed true that the Government are considering the issue in the round. Sexual motivation is not the only reason why people are spiked through their drinks or through needles; there may be any number of motivations for people doing it, so it is reasonable to look at this matter in the round and that is what the Government are proposing to do through their amendment. I thank the noble Lord, Lord Paddick, for his support on this matter.

Moving on to sex for rent, I pay tribute to my noble friend Lady Kennedy, who has played a leading role in this House in promoting Amendments 141 and 142. She showed her knowledge in this area in the questions that she put to the Minister about how this matter will be taken forward regarding the online safety Bill. She put some pertinent questions and I hope that I can be copied in on the answers regarding the timetable and whether particular aspects of the DCMS Bill will address the sex-for-rent issue.

The further concession, if I can use that word, which the Minister has made is that there will be a public consultation, which will launch by the Summer Recess. Of course that is welcome but, as she fairly pointed out, there are a number of elements to this. It is not an issue for one department or one that is easy to solve. Indeed, it is not easy to quantify, although there is no shortage of horrific examples that one can see online on any number of websites where people seek sex-for-rent arrangements.

I thank the Minister for the way she introduced the Government’s Motions. We will support them if they are put to a vote.

[Baroness Williams of Trafford (Con)]

I thank the noble Lords, Lord Ponsonby and Lord Paddick, for their very constructive comments, and the noble Baroness, Lady Kennedy of Cradley, for her always very constructive approach in bringing these matters forward.

The point about someone having to identify as a prostitute is a really serious matter. I say again that anyone who makes a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies where a victim has on one or more occasions provide sexual services to another person in return for financial gain.

The consultation on this will be before the Summer Recess. We will write about the terms of reference once they are settled. The consultation will be confined to the case for a bespoke new offence.

On the online safety Bill and where it meets what we have been talking about, the legislation will define the harmful content and the activity covered by the duty of care. This includes illegal content and activity, harms for children and legal but harmful content, and activity for adults. The relevant offences, which are Sections 52 and 53 of the Sexual Offences Act 2003, have been included in that list of priority illegal harms in the Bill, demonstrating the importance that the Government attach to the tackling of these harms.

I hope that answers the noble Lords’ questions. Again, I thank them for their constructive work on this.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I rise with some trepidation as the first man to speak in the debate—sorry, after the noble Lord, Lord Russell, of course, the proposer of the Motion. Something seriously needs to be done about misogyny in society, as the noble Baronesses said. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that misogyny is not hatred of women. My understanding is that it is hatred of women who are not subservient to men and who do not allow men to do what they want because they can, because they are stronger or because they think they can get away with it.

I have to say that I do not understand the Law Commission’s assessment that having misogyny as an aggravating factor would undermine the investigation and prosecution of things such as domestic abuse and sexual violence. Racism is treated as an aggravating factor by the courts, yet black victims of domestic abuse and sexual violence are not disadvantaged by having racism as an aggravating factor. So why should women be disadvantaged were misogyny to be an aggravating factor? Perhaps the Minister can answer that question.

I agree with the noble Baroness, Lady Kennedy of The Shaws, that we must deal with misogyny in terms of the actions that have a detrimental impact on women—not the thought but the deed, not the prejudice but the discrimination against women.

Amendment 72B in Motion D1 would create a new offence of harassment or intimidation aggravated by hostility towards sex or gender, where the maximum penalty for the new offence is the same as the offence, under Section 4 of the Public Order Act 1986, of intentional harassment, alarm or distress without any aggravating factor. So there is an issue there.

There is a crisis of misogyny in society in general and in the police service in particular. Urgent, decisive action needs to be taken, notwithstanding the Law Commission’s findings. Creating a new offence, as suggested by the noble Lord, Lord Russell of Liverpool, in the form and with the penalties suggested might not be the right answer, but it is a vehicle to allow the Government to come forward with a better alternative using the Bill. We do not know when the next legislative opportunity will arise and we need to force the Government to take action now.

This urgency is reinforced by the fact that, as the noble Lord, Lord Russell of Liverpool, said, the undertakings given by the Government when we last debated this issue during the passage of the Domestic Abuse Bill—now an Act—to ensure that all police forces flag offences aggravated by hostility towards sex or gender do not appear to be happening. Even if the Government are not convinced that legislative change is needed, surely they must deliver on their commitment to ensure that the nature and extent of the problem of misogyny in society is measured by the recording of such offences by the police. Surely the Government must understand why police forces might be reluctant to record misogyny as a hate crime when there is clear evidence of a culture of misogyny in police forces. That is why they should be compelled to do so by the Government.

I am concerned that the Government, encouraged by the Law Commission, are going into reverse on the issue of misogyny, betraying women who suffer every day from male violence. If for no other reason, we should support Motion D1 and Amendment 72B.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an extraordinary debate in many ways. It has really gone to the heart of the issue. I pay tribute to the noble Lord, Lord Russell, in the way he moved his amendment.

I will start by addressing a specific point that the noble Lord, Lord Paddick, made about the way sentencing is done in courts. I speak as a magistrate who sits in London. When I sentence on a matter where there is racism as part of the sentence, I explicitly have to say in court what the uplift is because of the racist element. However, when there are other aggravating factors, be they misogyny or any other factor, such as the fact that the victim works in a public-facing way, I am not required to do that, but I can if I wish to. That is a very specific example of the difference in the way sentences deal with particular different types of aggravating factors.

Beyond Brexit: Policing, Law Enforcement and Security (EUC Report)

Lord Ponsonby of Shulbrede Excerpts

Friday 11th March 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Ricketts, for his introduction to this report. It is a comprehensive report, even though it is a year old. The introduction of his speech today was particularly appropriate, putting the details in the report into the wider context of the terrors and horrors that we are seeing in eastern Europe as we speak.

This area of concern was not necessarily one which received the most headlines when the Brexit deal was being negotiated and agreed, but as we have heard today, it is crucial, and stark warnings were given at the time about the challenges that it would create. The noble Lord, Lord Anderson, described the TCA as a damage limitation exercise, and the noble Lord, Lord Paddick, said that it was not as bad as it might have been.

Although this report and its subjects can appear to be quite technical, they are vital for front-line policing and for keeping people safe. Neil Basu, while head of counterterrorism policing, warned that none of the replacements for lost EU tools was as good as the security protocols that we had in place. I was struck by the quote in paragraph 65, from Assistant Chief Constable Ayling, who describes the arrangement for Interpol access to replace SIS II as one that

“falls a long way short of the benefits provided by SIS II. However, it is sufficient, in that it enables us to discharge our responsibilities effectively, and it delivers a mechanism whereby we can cooperate.”

It is a difficult reality if we have to accept what is sufficient rather than what is optimal.

I welcome the deal that was reached. The report outlines some of the strengths of the co-operations that it is has allowed us to replicate, in areas such as passenger name records data and criminal records data. The report was published this time last year, so this is an opportunity for the Minister to update the House on how the negotiations have proceeded since then. The simple headline concern is that the tools we have lost access to—namely, SIS II—have left law enforcement trying to work with slower, more cumbersome systems.

On Interpol, can the Minister give an update on the Government’s success in persuading European partners to double-key information, which means duplicating work, as the noble Lords, Lord Ricketts, Lord Paddick and Lord Davies of Gower? The Committee said:

“We did not receive any clear evidence from the Government on how it planned to secure such commitments from EU member states to do so.”


Also on Interpol, can the Minister give an update on the technical improvements which are under way to reduce the time of uploading Interpol notices on to the police national computer?

Last month, an update on the I-LEAP programme was published by the accounting officer for the Home Office. The update says that:

“The I-LEAP programme will provide new alerting digital platform capabilities to police and border officers in the UK, and to their equivalents in partner countries, enabling increased opportunities at the national border or within country to identify persons and objects of interest to law enforcement agencies … In the longer-term I-LEAP will also enable real-time bilateral alert exchange with key international partners who share the UK’s interest in further strengthening alert-sharing capabilities.”


The question for the Minister is: how long is “in the longer-term” in this context?

On feasibility, the I-LEAP update states that the Government’s proposal is

“to conclude one bilateral agreement with another State every year from 2023 at the earliest”.

It goes on to say that the

“I-LEAP programme is heavily dependent upon the UK securing bilateral agreements with other countries and that this may impact the realisation of the programme’s benefits.”

Does the Minister believe that the Government will reach that target? How is preparation going and have bilateral talks started yet?

Moving on to civil and family questions, I thank my noble friend Lady Goudie and the noble Baroness, Lady Hamwee, for setting them out in more detail than I can do now. Basically it is about the application to the Lugano Convention. I understand that we are remaining a member of the Hague convention. What is the position now? My noble friend Lady Goudie and the noble Baroness, Lady Hamwee, asked about Denmark and the EU with regard to their reaction to our application. I shall just mention that, as I have said in other contexts, I sit as a family magistrate and one of the things I do is reciprocal enforcement of maintenance orders. This is specifically when we are trying to enforce maintenance orders within the EU and outside it. That work is continuing, but it is a bureaucratic process, and I look forward to the Minister’s reassurance. It certainly should not get any more complicated because it is very complicated at the moment to do procedural enforcement. I thank the noble Lord, Lord Ricketts, for his report.

Passenger, Crew and Service Information (Civil Penalties) (Amendment) Regulations 2022

Lord Ponsonby of Shulbrede Excerpts

Wednesday 23rd February 2022 Lords Chamber

My final question concerns paragraph 7.3 of the Explanatory Memorandum, which says that no fixed penalty notices have been issued but that warning notices have been issued instead. Just so that we can get a feel for this, I ask how often these warning notices are issued. I would be very interested to hear the Minister’s comments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party supported the original regulations, which introduced the civil penalty. They are proportionate, reasonable and in the national interest. We support those existing regulations remaining in place and we will not be opposing them this evening. We welcome that the penalty has not been enforced in any case so far, which the Minister confirmed in her introduction. But I repeat the question asked by the noble Baroness, Lady Randerson: it would be interesting to know how many warning notices had been issued, although the Minister made it clear that there was 100% compliance once companies had received the warning notice.

The Minister in the House of Commons said:

“In practice, the approach to civil penalties has been, and continues to be, one of collaborative engagement.”—[Official Report, Commons, Delegated Legislation Committee, 2/2/22; col. 4.]


I would be interested to hear from our Minister what that means in practice and whether that collaborative engagement is ongoing.

The Minister has already answered my next question, in a sense. I was going to ask whether the Government had considered extending the sunset clause for another seven years. She used the expression that the sunset clause had placed the regulations “on probation” and that they seemed to have passed that probation period. I think that is a reasonable answer to the question that I was going to ask.

How do the Government propose the ongoing review of these measures to make sure that they stay relevant? Will there be regular reviews, for example?

A further question partly arises out of my noble friend’s amendment. He outlined the concerns from the EU that he has come across and raised a number of questions, which I wrote down and I am sure the Minister did as well. I will be interested in her response to those. The main thrust of them was wondering whether there would be a commonality of policy between the EU and the UK Government so that there is not double punishment for potential corporate transgressors, and a commonality of approach would surely be beneficial for the operators themselves.

A further question, which again the noble Baroness, Lady Randerson, has raised, was a concern that any extra checks that may be put in place should not lead to greater delays. We heard about the noble Baroness’s experience last week. I do not know whether they were seen as a temporary measure because of the current situation, and those delays should be expected to disappear in the coming months.

In conclusion, as I have said, we welcome the removal of this sunset clause. We think the measures have passed their probation period. I think my noble friend has raised some interesting questions with his amendment, and I look forward to the noble Baroness’s response.

[Baroness Williams of Trafford (Con)]

I thank noble Lords for their questions. I have written them down and will try to answer them in no particular order. I start mainly by addressing the question from the noble Lord, Lord Berkeley, about immigration officers being immigration officers and transport operators being transport operators. No operator is required to take any immigration decisions. The information is to enable Border Force to take better immigration decisions. On the European Commission proposal, these are not passengers that the carrier would actually know about, so the regulations have no bearing on that issue. In terms of Ireland, there is no application to land transport by road or rail. In terms of what we mean by schedule, schedule is the service that the truck travels on and not the truck itself.

Getting on to questions from other noble Lords. First, I was asked why the sunset clause is being removed. It was standard practice at the time that a sunset clause was added to the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015. That sunset is on 31 March, and needs to be addressed to ensure that regulations do not cease to have effect. Noble Lords will remember that that was the sort of bonfire of regulations time. I think now is the time when we can say that this system is working, and I will go through why. The approach has been taken to remove the sunset clause. It will preserve that deterrent effect that I talked about earlier of the civil penalty regime which, alongside the passenger, crew and service information requirements, is now a permanent and ongoing element of the UK’s border security arrangements and has been for a considerable time.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Ponsonby, asked about the legislation and its effectiveness. It will be subject to ongoing review to ensure its continued utility. The noble Baroness, Lady Randerson, and, I think, the noble Lord, Lord Ponsonby, as well, asked why the Channel Tunnel was not included back in 2015. I think that was because the emphasis was on the operation of juxtaposed controls. Those controls are maintained, but advanced information enables better targeting of those individuals requiring close examination.

On delays, the noble Baroness, Lady Randerson, talked about how in practice this is preparing the way to progress towards the operation of more effective controls, on the basis of knowing in advance who is travelling. It will support the operation of the Government’s future border and universal permission to travel plan.

The noble Lord, Lord Ponsonby, asked about the civil penalty regime. Border Force takes a collaborative approach to engagement with carriers to secure their compliance with requirements to supply passenger, crew and service information. To address non-compliance, the imposition of civil penalties is very much a last resort. The threat of financial penalties through the service of notice of potential liability has had the quite dramatic effect of addressing and resolving instances and issues of non-compliance.

Immigration and Nationality (Fees) (Amendment) Order 2022

Lord Ponsonby of Shulbrede Excerpts

Wednesday 23rd February 2022 Grand Committee

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining the order. As she said, it increases the maximum fee that can be charged for applications for entry clearance into the UK for short-term visits of up to six months from £95 to £130 and for students from £480 to £490. Those are the maximum amounts that could be charged, but the fee is set under different regulations.

Interestingly, the reason given in the Explanatory Memorandum

“to better reflect the cost of processing applications”

applies only in the case of the visitor visa, not the student visa. Will the Minister tell the Committee the cost of processing both types of visa and how much headroom these new maxima will provide? Is it the case that the cost of the student visa is nowhere near the cost of processing the application, as the Explanatory Memorandum appears to suggest? If the current fee for student leave to remain applications is £475 and for student leave to enter applications is £348, why is it necessary to increase the maximum fee chargeable to £490 now when neither fee is currently charged at the maximum allowed? Can the Minister explain why it is so much expensive for a student to apply to remain in the UK than to apply to enter the UK? Intuitively, once a student’s details have been processed and retained, it would be easier and less costly for the Home Office to extend the visa.

The Explanatory Memorandum states that the consultation on this order took place more than eight years ago, between November and December 2013. Why has more recent consultation not taken place?

The draft impact assessment states that:

“The strategic objective is to attract talent and take back control.”


Can the Minister explain how either of these increased maxima will achieve those objectives? We have asked this question before, and we ask it again.

The impact assessment states that:

“Visa and immigration fees are set … to ensure that the Home Office has appropriate funding to provide effective Border, Immigration and Citizenship (BIC) services … and to move closer towards ‘self-funding’ and reduce the burden on the taxpayer.”


The Minister referred to the reduction of the burden earlier. Can she explain why the Home Office is unique in being required to be self-funding in the broader immigration and citizenship services it provides? Those services benefit every citizen of the UK through effective border and immigration control. Why is the health service not funded by those who use its services? Is the reason not the one set out in paragraph 8 of the impact assessment:

“The main groups affected are those migrants wishing to come to or extend their stay in the UK”?


They are people who cannot vote.

In addition, the impact assessment talks about providing

“additional scope to ensure that the department’s charging structure is flexible enough to support evolving products and services.”

Can the Minister confirm that fees are now being charged at a rate not just to fund existing services but to pay for research, development and provision of new products and services, such as the electronic travel authority?

The impact assessment says the impact of increasing fees on volumes is “highly uncertain”, yet paragraph 46 says:

“The proposed changes will generate direct benefits for the Home Office. Revenues will be higher from those applicants that continue to apply despite higher fees.”


I understand that the increased maximum for a student visa is small, and a small proportion of the overall cost of studying in the UK, but the increase in the maximum for a visitor visa is significant. Only last week I was in Cape Town talking to South Africans about the deterrent effect of the current UK visitor visa fee, even without the potential increase that this order would allow.

The order gives the Home Office the potential to increase the fees for visa applications, impacting on overseas visitors and potentially damaging our tourism and education sectors. At the same time the Home Office, rather than taking back control of our borders, has added 10 more countries to visa-free entry, while retaining visa-free entry from EU and EEA countries. The Government seem determined not to be seen to be giving EU or EEA citizens any advantages post Brexit, but in order to maintain this ideologically driven stance they have thrown open our borders to even more countries. It seems that the Home Secretary would rather be tough with migrants than with the Treasury over the Home Office funding settlement. I look forward to the Minister’s response, either now or subsequently in writing.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Paddick, asked a number of the questions that I was planning to ask. I am aware that there is a wider debate on immigration fees and the Government’s policy of making a profit on certain groups, such as Commonwealth veterans or those paying for optional premium services. That wider debate is being carried out on the Nationality and Borders Bill as we speak.

I am aware that in this SI we are talking about two specific cost increases to the cap. Specifically, I noticed the note in the impact assessment that the optional premium services are

“charged above cost … to meet customer demands and to limit fee increases in other areas.”

Is the Minister able to say how much extra money is made through these optional premium services? By how much does that reduce other costs?

Another point, which was touched on by the noble Lord, Lord Paddick, is about tourism. Does the Minister recognise the importance of supporting the tourism industry? As she will know, there was an interesting Question in the Chamber earlier this month about school parties coming from France. I think she will have picked up the general sense of frustration in the House that school parties from our nearest neighbours are not coming. I understand the point about Covid, but nevertheless I hope she picked up the general sense of frustration in the House at the answers she gave to that Question.

The noble Lord, Lord Paddick, explored another point by asking the Minister to give a wider explanation about the need to provide extra headroom on the fees. As he asked, what is the cost of processing the fees? How much headroom is the Minister seeking in this SI? I understand the reasoning behind it, but what is that headroom and what is the processing cost?

The other point that I wanted to make—to pick up a point also made by the noble Lord, Lord Paddick—was about the general move to self-funding, which is a clearly stated aim by the Government. The noble Lord went on to question why this element within the visa system should be moving to self-funding when other large departments have not had that constraint put on them. I would be interested to hear from the Minister a philosophical defence of that position, given that we benefit from immigrants. That point is acknowledged, so why should the department be moving towards self-funding?

[Baroness Williams of Trafford (Con)]

I thank both noble Lords for the points they made. I will first answer the last question on why we should be moving towards self-funding. We have been self-funding since as far back as I remember and it has always been the case that those who use our border and immigration services should contribute towards the cost of running them. It is not something that absolutely everybody in the country avails themselves of, unlike the NHS, which we all pay for through taxes. That is my best guess as to why we charge contributions towards the cost of border and immigration services.

Both noble Lords asked about the costs of the short- term visit visa. The incremental growth between 2015 and 2019 was from £85 to £95, and there have been no increases since 2019. The fee is currently £35 less than the published unit cost, which is £130. The current maximum amount of £95 has not changed since it was set in 2016. The impact assessment for this order suggests that an increase, even to the new maxima, would not have a significant impact on demand: 41,000 fewer applications. Against a baseline of 1.72 million, this represents about a 2.4% reduction in 2022-23, with a net benefit to HMG of £55 million. That is additional revenue minus costs, including the impact on the Exchequer of reductions in inbound tourism. There is little evidence to suggest that previous fee increases have had a notable impact on volumes.

The fee is broadly comparable to those of competitor countries, although the differing benefits offered by these products make direct comparison quite difficult. For example, the Schengen visit visa is cheaper at £67 but is valid for three months, compared with six months for the UK short-term visit visa. The comparable US visa is £117 but is valid for 10 years.

The noble Lord, Lord Ponsonby, asked about the premium service. It is entirely optional and costs between £15 and £48. As I say, it is optional. To answer the question of the noble Lord, Lord Paddick, the fees are set under the charging powers in the Immigration Act 2014. The estimated unit cost of the in-country student main applicant and dependant applications are £252 for a child student and £153 for an overseas applicant. As I say, the cost and the fee are quite different. I explained at the outset that the fees contribute to the cost of the border.

I think the noble Lord, Lord Paddick, asked me a couple of other questions that I did not manage to write down in time, so if there is anything outstanding I will write to him. At this stage, I beg to move.

Data Protection: Immigration Exemption

Lord Ponsonby of Shulbrede Excerpts

Monday 31st January 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we last debated this on 19 January and I thank the noble Lord, Lord Paddick, for bringing this Take Note Motion to the House. To put it on the record, in 2018 the Labour Party opposed the immigration exemption, but, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, accurately said, we voted in favour of the Government’s position regarding the statutory instrument which we considered on 19 January.

I reread the lobbying material we have received from the Open Rights Group and the3million. It is clear that the Court of Appeal suspended the effect of its declaration until 31 January—which is today—and I do not know enough about the procedure of that court, but will we receive some information, maybe through the Government, of the result of that declaration? I can see that both noble Lords are shaking their head.

I thank the Minister for copying me in on the letter she sent to the noble Baroness, Lady Hamwee. It makes clear there was some attempt at consulting the Open Rights Group and the3million, but clearly that discussion did not result in placating those groups. So it may well be that there is a further judicial review or a further challenge by those groups. The noble Baroness, Lady Hamwee, has very fully set out the likely basis for that challenge.

As we said in the aftermath of the debate on the statutory instrument, the noble Baroness, Lady Hamwee, and the noble Lords, Lord Paddick and Lord Clement-Jones, have a lot of experience with this Bill, having debated it in 2018 and having brought the matter back repeatedly since then. We on the Labour Benches will be interested to hear what the Minister has to say. As I said, we originally opposed this element of the Bill and we would be interested to see how confident the Minister is that the changes put forward by the Government will not result in a further challenge.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank noble Lords who have spoken in this debate. As noble Lords will know, paragraph 4 of Schedule 2 to the Data Protection Act 2018 outlines specific rights under the UK GDPR that can be restricted if they would likely prejudice either

“the maintenance of effective immigration control, or … the investigation or detection of activities that would undermine the maintenance of effective immigration control”,

known as the immigration exemption. As noble Lords have pointed out, these regulations amend the immigration exemption, following the judgment in the case of Open Rights Group & another v the Secretary of State for the Home Department. This statutory instrument builds on existing safeguards of individual rights and should be welcomed.

Misuse of Drugs Act 1971 (Amendment) Order 2022

Lord Ponsonby of Shulbrede Excerpts

Tuesday 25th January 2022 Grand Committee

[Lord Ponsonby of Shulbrede (Lab)]

We support the amendments to the Misuse of Drugs Act 1971 and thank the Minister for introducing so comprehensively the details of the changes proposed. Just to remind the Committee, I sit as a magistrate and regularly deal with drug-related matters in all the jurisdictions—in youth, family and adult criminal matters. It is normal for me, when dealing with these matters, to notice that the street names of drugs change, the names recorded on the charge sheets change, and the strengths of the drugs that we are dealing with change as well. It is a moving picture; I understand the purpose of this amendment, but I take the point made by the noble Lord, Lord Paddick, that in a sense the system is always playing catch-up with what is happening with illegal drug use.

I thought it might be interesting for the Committee if I told an anecdote about when I was sitting as a magistrate in Horseferry Road about 10 years ago. We were in a regular criminal court and we had a young man in front of us—he was an adult in his early 20s. He had his father in court, and a privately paid lawyer, and he was pleading guilty to possession of a class B drug. That drug had only recently been made illegal; it had previously been a legal drug, and he had become addicted to it. He had dropped out of college and been put on a rehabilitation programme. He was doing better—but he had been picked up in possession of the drug, and that was the matter that he was pleading guilty to.

What nobody else in the court knew except me was that our legal adviser, before she became a legal adviser, was a nurse. She googled the drug referred to and asked us to retire. She told us that the drug that he had been found in possession of was a date-rape drug, which we had been told he was addicted to. In fact, we had had it presented to us that he was a victim in unfortunate circumstances. So we had to decide how to proceed, given that potentially, given the information that we had been given, it was a much more serious matter than simple possession of a drug.

In the end, we sentenced the man for simple possession, but we got the legal adviser to go and tell the young man’s lawyer—not his father—that we knew what that drug could be used for. When we went back into court and sentenced him—and he would only have got a fine, or something—we made it very clear that there can be other connotations for people having these drugs, and things can get much more serious. In fact, the legal adviser suggested that we might send the matter up to Crown Court, although we did not do that in the end.

I support these amendments. I know that there are limitations with what is happening, and I understand the points that the noble Lord, Lord Paddick, made—and I agree with his points about education being better than criminalisation, although I part company with him on a number of other aspects of legalisation of certain types of drugs. Nevertheless, I welcome these amendments to the drugs Act.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I begin by saying how grateful I am to my noble friend Lady Williams of Trafford for the time that she has given me, and others, since the debate in Committee on 1 November and for bringing forward these amendments. Having said that, I have some observations to make, in particular about freedom of expression.

Events since the debate in November have made the need for proper regulation even more pressing. Since that debate, as we have heard, the Court of Appeal in Miller has stressed the danger of the chilling effect of police intervention on individuals minded to speak on controversial public topics. The president of the Queen’s Bench Division, in her very powerful judgment, said that the revised guidance published by the College of Policing, which was then before the court, did not

“go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally.”

She emphasised that

“additional safeguards should be put in place so that the incursion into freedom of expression is no more than strictly necessary.”

Finally, she said:

“Guidance should truly reflect what the police are expected to do and should not mislead by omission either the police who have to use it or the public.”


At much the same time as that judgment was being written, a similar matter came before the court in Strasbourg—the case of Dr Pal. It was decided against the United Kingdom on 30 November 2021—just two months ago. Dr Pal, a journalist, was arrested, detained and charged with hate speech in respect of a person called AB. Only when it came to the magistrates’ court did the CPS abandon the prosecution. Dr Pal then brought proceedings for wrongful arrest, or false imprisonment. The Strasbourg court observed that the arresting officer’s decision to arrest

“appears to have been based on the subjective viewpoint of AB”—

that is, the complainant himself —

“without any acknowledgement of the fact that the right to freedom of expression extends to information or ideas that defend, shock or disturb.”

The court said that

“there is no evidence that the criteria … relevant to the balancing of the rights to freedom of expression and the right to respect for private life … were taken into account prior to the applicant’s arrest. In particular, no consideration appears to have been given to the subject matter … and whether they could be said to have contributed to a debate of general interest.”

In short, there have been two important decisions from very senior courts which have stressed the vital importance of paying proper regard to freedom expression and to the need for those in authority to understand and reflect that the right to freedom of expression extends to ideas that may shock or disturb others. There must be fresh guidance, it must reflect those observations, it must be clear and decisive—and it must be soon.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing her two amendments, which we welcome. It was fair of her to point out the legacy of the recording of non-crime hate incidents and the legacy of the Macpherson report on Stephen Lawrence’s murder. We welcome that the existing guidance will be turned into statutory guidance. I have one question for the Minister: what is the likely timetable for that statutory guidance to be available to be reviewed by Parliament?

On Amendment 114E in the name of the noble Lord, Lord Moylan, I have a genuine question, and this is not a party-political point: how would his amendment have an impact on domestic abuse cases? As I have said before to the House, I sit as a magistrate in both family court and the criminal court, and I deal with a lot of cases related to domestic abuse. While non-hate crime incidents are not recorded on the police national computer, we see information on call-outs and it is common to see information on text records between the parties, usually a man and a woman. Sometimes those text records go on for pages and are relentlessly abusive. How would that information be affected by his amendment?

[Lord Moylan (Con)]

Without having myself looked at the wording of the amendment, the original wording, which I think is preserved in the current amendment, would have excluded disclosure in relation to individuals but not in relation to groups. In the context of the original amendment, therefore, I think that point would have been covered. The noble Lord makes a very good point, and if I were pressing the amendment or the Government were intending to take it forward in any way, of course it would need to be reviewed to ensure that his point was properly addressed.

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Moved by

[Lord Ponsonby of Shulbrede]

114A: After Clause 55, insert the following new Clause—
“Urgent review of offences under section 61 of the Sexual Offences Act 2003
(1) The Secretary of State must establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003, within one month of the day on which this Act is passed.(2) A review under this section must consider—(a) incidence rates and rates of reporting by victims;(b) charging and prosecution rates for the offence;(c) the adequacy of sentencing guidelines for the offence;(d) the adequacy of police investigations into reports of the offence;(e) reoffending rates, and rates of offenders who commit one or more other sexual offences following a charge or sentence for administering a substance with intent;(f) the impact of the offence on victims.(3) A report on the findings of the review under this section, and any associated recommendations, must be published within six months of the day on which this Act is passed.(4) Where a report is published under subsection (3) a Minister of the Crown must make a statement to each House of Parliament on the contents of the report and associated recommendations.(5) Within three months of a report being published under subsection (3) a Minister of the Crown must make a statement to each House of Parliament on action that has been taken in response to recommendations made.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this amendment was debated on Wednesday, so I intend to speak very briefly to it. The purpose of the amendment is to ask the Government to set up a review of drinks spiking and needle spiking in pubs and clubs. In her response, the Minister said that the Home Secretary has asked the National Police Chiefs’ Council to review the scale of needle spiking. My amendment is very modest; all it does is require the Government to go one step further and set up a review of this practice, about which there is much public concern. I wish to test the opinion of the House.

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[Baroness Chakrabarti (Lab)]

My Lords, your Lordships’ House can be proud tonight for seeking to prevent injustices well into the future, but in seeking to support the noble Lord, Lord Best, we can try to act on injustices that are nearly 200 years old.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we will be supporting the noble Lord, Lord Best, if he chooses to press his amendment to a vote. If I may refer briefly to my experiences as a magistrate, it is indeed true that we do not actually see this charge brought very often—of course, we do see beggars, but it really is not that often. It seems to me that there is widespread cross-party support for repealing the Act. A compromise has been put forward by the noble Lord, Lord Best, and I will be interested in hearing the Minister’s response. If the noble Lord does choose to press his amendment, we will support him.

[Baroness Williams of Trafford (Con)]

My Lords, I will join other noble Lords in trying to be brief, given the lateness of the hour. I thank the noble Lord, Lord Best, my noble friend Lord Young of Cookham, and the noble Baroness, Lady Thornhill, for their commitment on this issue. I can only apologise that the letter was so late in returning to them.

I assured noble Lords in Committee, and I do so again now, that the Government firmly agree that no one should be criminalised simply for having nowhere to live or for sleeping rough. The Government’s dedication to supporting this group has been at the centre of our response to the pandemic, as the noble Lord, Lord Best, has said. We have also recently provided £28 million to local authorities to support them to promote vaccination among people sleeping rough and to provide emergency accommodation to get people off the streets. That builds on the success of the Everyone In programme.

The Government are fully committed to reviewing the Vagrancy Act, but the review has been delayed by the pandemic and by our resulting endeavours to protect vulnerable individuals. In Committee, I explained that rough sleeping and begging were complex issues, and that we therefore must give due consideration to how and why the Vagrancy Act was still used to tackle begging and what impact any changes to the Act will have. This includes consideration of any legislative gap left by repeal that may impact the police’s moves to deal with begging.

The noble Lord spoke about the way the Anti-social Behaviour, Crime and Policing Act 2014 can be used to deal with certain types of begging, but that Act is not always a suitable alternative. Begging is complex and does not always meet the legal tests in the 2014 legislation to allow the police or local authorities to tackle specific forms of begging where intervention may still be useful, specifically passive begging, where there is no associated anti-social behaviour but where, none the less, there might be an impact on communities as well as the individual. For example, someone who is sleeping rough might engage in passive begging and might use that money to survive on the street. They might be resistant to taking up offers of support, and this might have an indirect impact on communities or businesses. In such circumstances, there would be nothing the police could do to help compel the individual to take up support.

There are also international examples of different approaches taken to tackle begging, including passive begging, that we should consider. For example, should the police be able to intervene if begging affects businesses or, as in some countries, if begging is opportunistic, for example near an ATM, or fraudulent, such as feigning injury or illness?

The Government think that enforcement, when coupled with meaningful offers of support and close work with other agencies, can form an important part of moving people away from the streets. It is vital that the police can play their part here and that they have effective legislation at their fingertips, but this position does not negate the Government’s firm view that rough sleeping should not be criminalised and, where an individual is truly destitute, it is paramount that a multiagency approach is taken to provide that necessary support. To ensure that the response is effective, we need legislation that complements the delivery of services and allows for constructive engagement with vulnerable individuals. I recently wrote to the noble Lord with more information on the detail of our position.

As it stands, an outright repeal of the Vagrancy Act might leave a gap. That is why, as I explained when I met with the noble Lord, once the necessary work has been concluded, the Government are committed to repealing the outdated Act and replacing it with much more modern, fit-for-purpose legislation when parliamentary time allows. Until we have completed this work, it would be a bit premature to repeal the Act. In the light of the commitment that I have outlined, confirming that the Government will consult on what the appropriate legislation should look like, I ask the noble Lord to withdraw his amendment.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

[Lord German (LD)]

My Lords, the purpose of Amendment 90A in my name is to put beyond any doubt that an application to run a secure school by a local authority or local authorities, either working as an entity or acting in a consortium with others, will be treated on its merit, on the quality of the provision it proposes and can provide. In other words, there will be a level playing field for applications of this kind as for those from other, non-local government bodies. This amendment brings local authorities into the tent. It simply allows them to compete alongside other non-local authority organisations in order that the best provision will prevail, from whichever quarter it comes.

Since the debate on this matter, there have been discussions between the Minister, myself and other noble Lords from around the House and it is now clear that there is a legal route open to local authorities to make a bid for running a secure academy, but such a bid would run counter to the Government’s policy. I will return to this matter shortly, as it is fundamental to the rationale for this amendment.

I want to make it absolutely clear that we on these Benches support the proposal to create secure schools and academies. Youth custody, by its very nature, means that those within them are the most vulnerable and challenging young people. That is why Charlie Taylor, in his review, proposed secure schools as a major way of dealing with the problems of the youth custody system. It is worth remembering two points from his 2016 report. First:

“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”


Secondly:

“Rather than seeking to import education into youth prisons, schools must be created for detained children which bring together other essential services, and in which are then overlaid the necessary security arrangements.”


These two points reinforce the need for the highest quality provision possible.

Further to that second point in the Taylor point report, the absolute importance of integration was emphasised, not only of education but of a wide variety of services within the work of these schools—health, social care and services providing reintegration following custody are required within the school and not external to it. These are services that local authorities currently provide. Following the logic of local authority statutory provisions, particularly those of the duty of safeguarding and promoting the welfare of their children and the need for a new form of integration, there is much that local authorities can offer.

What is clear is that the skills and abilities of the heads and staff of these secure schools are fundamental. They need the best, and only the best will do. That is why this amendment is so important, because it ensures that local authorities are not excluded from providing secure schools, simply because of their nomenclature as academies.

The letter from the noble Lord the Minister to my noble friend Lord Marks makes two fundamental points: first,

“it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements”

with the Government; but, secondly,

“it is the policy of the Government that … no academy in England is operated by a local authority.”

The key issue here, then, is the use of the words “secure academy” rather than “secure school”. It is not a matter of who would be the best provider offering the very best and highest quality of education and integrated services outlined in the Taylor review and accepted by government. It is worth recalling that, when the Taylor review was published, the Government in a Ministerial Statement two days before the publication—which is quite interesting—referred to the setting up of two secure schools, one in the north and one in the south, and used the words “secure schools”. It is only in recent months that the word “academy” has moved into the nomenclature used for what was initially designed to be secure schools and was recognised by the Government as being secure schools.

Local authorities certainly have expertise in the provision required, but this amendment does not seek to favour them. It simply says that if they can produce the best provision needed, they should do the job. In doing so, they would have to follow all the frameworks set out by government, for example, on the devolution of decision making to the head, staff and governors. There would be no difference in the tender requirements, but these secure academies require the very best. To exclude a group of well-placed potential providers is a mistake.

As the noble Lord the Minister says in his letter to my noble friend Lord Marks, it is not a matter of the law but of the Government’s policy. That is why this amendment puts the matter beyond doubt. I and, I am sure, all noble Lords here will want the very best provision, from wherever it comes. I am not arguing that local authorities should win these bids, merely that they are given the chance to try. This legislation should provide the certainty that those who may be able to provide the best will not be left out. That is why I believe this amendment is important to put beyond doubt that all will be available and everyone can make a bid to run these services. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I start by reminding the House that I sit as a magistrate in youth and family courts and, as such, send youths to secure accommodation for welfare reasons and as a result of offences they may have been convicted of in the youth court. To make it clear, the Labour Party supports Amendment 90A, which the noble Lord, Lord German, has just spoken to. My Amendments 90B to 90F look at a different aspect of secure accommodation.

The amendments in my name seek to address national shortage in secure accommodation by placing a duty on local authorities to assess the local need and create a strategy to deal with that need. In Committee, Peers from across the House highlighted the significant lack of secure beds in certain areas that leaves children being dispersed across the country, sent to unsuitable establishments or unnecessarily remanded in custody. The Government responded by saying that they are taking steps to support local authorities to maintain existing capacity and to expand welfare provision in secure children’s homes.

There are currently no secure children’s homes in London, with London children being placed in justice and welfare placements in secure accommodation an average 124 miles from home. This is disruptive for the children, their families and the services supporting them. There are other significant geographical gaps across the country. Currently there are only 15 secure children’s homes in England and Wales. This amendment places a statutory duty—a requirement—on relevant local authorities to address this issue.

Following the Government’s response to the amendment in Committee, the Mayor of London’s office stated that the reality of the £259 million referred to by the noble Lord, Lord Wolfson, is that it will take some time to translate this into available secure beds. This is especially true given that there is no indication of how that funding will be apportioned across the country to address the geographical gaps to which I have referred. There is also no commitment to ensuring that both welfare and justice placements are provided for within this funding. This is also a gap in the answer given by the noble Lord. Therefore, the additional funding does not remove the need for relevant local authorities to assess the need for secure accommodation and to develop a strategy for any shortfall.

In conclusion, I will repeat a statement given by Lord Justice Baker. This is the ruling on an appeal brought in July 2021 by Just for Kids Law against Waltham Forest Borough Council which successfully argued that the failure by local authorities in London to provide appropriate alternative accommodation for children was unlawful. He said:

“The absence of sufficient resources in such cases means that local authorities are frequently prevented from complying with their statutory obligations to meet the welfare needs of a cohort of vulnerable young people who are at the greatest risk of harm. The provision of such resources is, of course, expensive but the long-term costs of failing to make provision are invariably much greater. This is a problem which needs urgent attention by those responsible for the provision of resources in this area.”


If the noble Lord, Lord German, chooses to put his amendment to a vote, we shall support it. Nevertheless, I have raised other issues which I hope the Minister will respond to in his reply to this group of amendments.

[Lord Carlile of Berriew (CB)]

My Lords, the aim of this exercise is to ensure that children who enter custody leave it better educated, better able to become part of normal working society and better able to function in a family environment. When Charlie Taylor produced his advice, which has already been mentioned, on the education of children in custody, his aims were exactly those: to ensure that the quality of education in custodial institutions, which currently is extremely variable, from the excellent to the terrible, should reach a good standard, comparable with that provided by decent schools around the country.

There is an issue about numbers. I would not like it to be taken that every local authority will be required to provide an educational provision for those children who come from that local authority. I know that is not what the noble Lord, Lord Ponsonby, with all his knowledge of this issue, is aiming at. There are well under 1,000 children in custody—significantly fewer than there used to be—which, after all, is the roll of a typical London comprehensive school as we speak. It would not be in the public interest to have a large number of academies for children in custody around the country because it would not be possible to supply the quality of education. However, as Charlie Taylor emphasised, we need the balance between having good schools or academies—whatever one calls them—for children in custody and local authority provision of the kind envisioned by the noble Lord, Lord Ponsonby, which ensures that they are kept in touch with their communities and their families and where they will probably go back to live after they leave custody.

It seems to me that, if all that is right, it is beyond argument that local authorities should be able to participate in this process without hindrance and establish educational institutions for those in custody, and that there should be as few obstacles in their way as possible. Once that is achieved, they will have to compete with everyone else who is in the area—that is perfectly sensible—but it would be wrong, for policy reasons that are, in my view, poorly conceived, to obstruct a legitimate role for local authorities.

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[Lord Paddick (LD)]

My Lords, I do not intend to repeat the arguments that other noble Lords have made and those that I made in Committee; they are in the official record. Existing legislation and procedures, properly applied, are sufficient to ensure the safety and well-being of all prisoners and staff in our prisons in relation to transgender prisoners. I am sure that the noble Lord the Minister will confirm that.

Because I have said, in answer to a suggestion on Twitter, that I felt that the existing risk-based approach was best, I was sent a direct message on Facebook from somebody I have never heard from before saying, “Leave women’s rights alone you nasty little misogynist. We see you loud and clear. Trans rights simply means male rights. Enjoy your irrelevance MRA bigot”. Whatever MRA stands for, I have no idea. Of course, as the noble Baroness, Lady Fox of Buckley, has said, we need to consider the rights of women—of course we do—but transgender people also have rights, and their rights need to be balanced. The best way to do so is on a case-by-case basis.

The noble Baroness, Lady Meyer, and the noble Lords, Lord Cormack and Lord Farmer, talked extensively about transgender people who had not undergone gender reassignment surgery, or transgender women who are still physically men. There is nothing at all in this amendment about the physical state of transgender people; it applies in a blanket manner to every single transgender person. The fact is that every prisoner entering the prison estate is risk-assessed to ensure that they are not a threat to themselves or others, and they are then housed or segregated on that basis. If that assessment has been wrong on rare occasions in the past, the problem was not with the system, let alone with the law; it was a problem with implementation. I understand, however—and I am sure that the Minister will confirm—that that is no longer a problem. This amendment is not necessary and we oppose it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too will be relatively brief. This debate is about balancing rights and balancing vulnerabilities, and I have been following it over months if not years. Unfortunately, I did not go to the teach-in organised by the noble Lord, Lord Wolfson. However, I have been to other events on Zoom where I have spoken to prison officers and the people involved in managing the situations discussed here. It is apparent to me that there has been an evolution in the prison officers’ and governors’ approaches. I have spoken to a number of them several times. I spoke to one women’s prison where transgender units operated for a period, and the way they were operated was later changed. I have to say the governors I spoke to seemed—I do not want to use the word “relaxed”—to think that they could manage the situation. That is what I was told, and I have every reason to believe in their professionalism in dealing with an evolving situation—as we have heard from noble Lords, there is an increase in trans prisoners; the figure of 20% since 2019 was mentioned.

I have visited quite a few prisons over the last 10 years and I am always impressed by the quality of the prison staff, the governors and the prison officers. The basis of my view is that I trust them to make the right decisions. I think they are dealing with very difficult circumstances and I think that they can manage risk. As the noble Baroness, Lady Barker, said, they have policies which have evolved over a period, which include the safety of the prisoners and the staff. I was pleased to hear that during the teach-in the Minister said that he is willing to support further research into this matter. It is an evolving situation, but for my part I am content that the current complex case boards that make these difficult decisions should continue to do their work.

[Lord Wolfson of Tredegar (Con)]

My Lords, this amendment relates to the management of transgender prisoners. The result of the amendment would be that transgender prisoners would “ordinarily”—and that word is used twice in the amendment—be held in a prison matching their sex as registered at birth. I will come back to that word “ordinarily” later on.

I should first record my sincere thanks to the noble Lord, Lord Blencathra, for his time. I am pleased that he found the teach-in with officials from the MoJ and HMPPS to be helpful. I am grateful also that my noble friend Lord Cormack and the noble Baroness, Lady Fox of Buckley, were able to attend the teach-in. I am conscious, from what they said then and this evening, that I did not persuade them at that time. I am not sure that I am going to persuade them in the next few minutes, but I am going to try.

I am not proposing to refer to anything said on Twitter. That is despite the fact that I think I am one of the few ministerial twitterers—or is it tweeters?—around. My tweets have become a lot duller since joining the Front Bench, but I can say that on this subject Twitter exhibits heat and no light whatsoever. I am grateful for the relative safety and sanity of your Lordships’ House.

Under the amendment, transgender prisoners who are not held with prisoners matching their sex as registered at birth would be held in separate accommodation such that they have no contact with people of their acquired gender. That is the inescapable result of the amendment. I suggest that it is unnecessary. Transgender prisoners can already be held in prisons in matching their sex as registered at birth where this is assessed as appropriate. In practice, the vast majority of transgender prisoners are already held in prisons matching their sex as registered at birth. The small number who are held otherwise have been through a rigorous multi-disciplinary risk assessment process. There is already provision, as I will explain in a moment, for transgender prisoners to be held separately from other prisoners of their acquired gender if doing so is deemed necessary.

We take the allocation of transgender prisoners extremely seriously. This is a subject which, as the last hour or so has demonstrated, arouses a lot of controversy and passion. But the approach we have put in place allows us to strike an appropriate balance—the noble Lord, Lord Cashman, put his finger on that as the right word, as it is a balance—between the safety, rights and well-being of transgender prisoners and that of all other prisoners in the estate.

Police, Crime, Sentencing and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, at last, much credit must go to the noble Lords, Lord Lexden and Lord Cashman, and to Professor Paul Johnson, but also to the Minister, who accepted the challenge from the noble Lords and ran with it. I understand the right honourable Priti Patel took little persuasion. Whether that is the Minister being modest or not, I have nothing but thanks and praise for all those involved.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I feel privileged to come in at the tail-end of this six-year campaign. I have to say I found it very moving listening to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who does me the privilege of taking an interest in my family history. I have followed his campaign on this matter as well. I also note the points he made about the position in Northern Ireland. It has been a six-year campaign—to use the words of my noble friend—to wipe away the stain on history. It seems to me these amendments are doing this. I also join in the praises from the noble Lord, Lord Paddick, of the Minister, who appears to me, as a latecomer to this, to have been with the campaigners every step of the way.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords for their kind comments. It is lovely when unity breaks out in this House, particularly when that unity has been hard fought. On the union—I take my noble friend’s points about Northern Ireland—I will certainly relay those comments to the Minister for Justice. I would imagine that the publicity will start on commencement of the Bill and be published on GOV.UK. There has already been some great publicity on social media and elsewhere, so publicity is already under way.

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Moved by

[Lord Ponsonby of Shulbrede]

97A: Clause 168, page 189, line 36, after “in any court” insert “subject to subsection (1A)”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in moving Amendment 97A, I will speak briefly to Amendment 97B. These amendments seek to remove children from the application of Clause 168, providing that remote observation and recording of court proceedings may not occur in cases where a party to the proceedings is a child under the age of 18. Amendment 97C, also in the group, provides that the court may not give directions for live links in criminal proceedings where a party to the proceedings is a child under the age of 18.

I take on board the comments made in Committee that these are blanket amendments which may not necessarily be appropriate in all cases. What has given rise to these amendments is concern about the drift to greater use of video hearings without adequate safeguards. Amendment 97CA in the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, would prevent a criminal trial proceeding with the jury or members of the jury in a different physical location from the judge, witness or counsel. We would support this amendment should the noble Lord decide to move it to a vote, but I will leave him to advocate for his own amendment.

Amendment 97D seeks to require that all defendants who might appear on a video or audio link from a location outside court should be subject to a health needs screening. Screening information must be made available to the judge responsible for listing before the listing is finalised; it is this amendment that I want to concentrate on. As I have said, it seeks to require that all defendants who might appear on video or audio link are subject to health needs screening. I have a quite extensive briefing from various advocacy groups, including Fair Trials, Transform Justice and Just for Kids Law, which are concerned about the greater use of video links that we have all experienced. Certainly, anyone who works in the criminal justice system has experienced this in the last couple of years. The concern is that some of the changes we have seen are not necessarily positive, and there should be a resistance to permanently moving to a greater use of video links.

The central point is that the judiciary should make an informed decision about whether a case should go ahead via some form of video link. The decision should be informed by a mental or physical health assessment of the young or vulnerable person. It seems to me that that is an unanswerable point. I have been in the position of making these decisions in circumstances that were very far from adequate. I have done so because of the expediency of the situation and the urgency of dealing with the cases that have come before me—but this must not be allowed to become the norm.

Video links have a purpose. They can in some cases help to get a case moving forward so that a just decision can be reached, but in most cases they are not appropriate. A judge or magistrate needs to be able to make an informed decision about whether to proceed with video links for whatever bit of process they are dealing with within the court system.

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For those reasons, I invite the noble Lord to withdraw the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw Amendment 97A.

Amendment 97A withdrawn.

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[Lord Paddick (LD)]

My Lords, I am very pleased to support the noble Earl, Lord Attlee, in his amendment, to the extent that I have added my name. We had discussions between Committee and Report; we agreed that the actual assault was covered by existing legislation, but the preparatory acts in preparing these disgusting attacks on prison staff needed to be addressed. That is how we arrived at the revised amendment, and I am very happy to support it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I pay tribute to the noble Earl: he has been dogged in his pursuance of this and I understand he has had constructive discussions with the Minister. I look forward to what the Minister is going to say to, in the noble’s Earl words, flesh out the proposals in the White Paper, and how these may lead to greater support for prison officers. One specific question for the Minister is how they propose to monitor potting and whether it is done by somebody acting in extreme distress or whether it is part of a planned tactic, if you like, within the prison.

In conclusion, I repeat my tribute to the noble Earl—it appears to me that his time in the TA may have led to his having some empathy with prison officers. I do not know, but nevertheless I support his amendment.

[Lord Wolfson of Tredegar (Con)]

My Lords, I also thank my noble friend Lord Attlee for tabling this further amendment on potting, which is vile behaviour and undoubtedly a horrific experience for those who become victims of this practice. I say unambiguously that it is therefore right that such incidents are prosecuted where there is sufficient evidence or that they are otherwise dealt with through prison adjudication.

My noble friend was particularly concerned about the availability of spit kits to collect evidence where crimes are committed. I hope that I can reassure him by saying that some prisons already purchase spit kits locally as a matter of course, but we will consider further whether there is a need to make them available to prisons nationally, as part of our focus on reducing crime in prisons.

Earlier discussions with the police and CPS confirmed that the use of body-worn cameras, rather than spit kits, would offer the greatest means of providing evidence to enable prosecution of crimes in prisons. That is why we have concentrated on providing these. Indeed, we are introducing a new generation of body-worn video cameras during this year, with newer, more technologically advanced cameras that will be available to every prison officer who needs one. They include a pre-record facility that effectively records and overwrites footage—so the pre-record footage is saved when you press a button. They are similar to cameras that are available to other people in the criminal justice system and mean that it will be easier to provide evidence of potting and therefore to support a prosecution.

The noble Lord, Lord Paddick, correctly identified that, in the amendment, this is a preparatory offence and tries to capture behaviour even where the act of potting itself may not yet have occurred or have occurred at all. The offence would apply where an individual possesses, provides or allows others to use their bodily fluids, intending them to be used for malicious purpose—and where an individual has assisted, aided or encouraged a crime. Of course, doing those preparatory acts is already a crime under Sections 44 to 46 of the Serious Crime Act 2007 or possibly under the Criminal Attempts Act 1981. The penalties for those preparatory offences are the same as those for the substantive offence.

We are also concerned about a practical difficulty: collecting urine samples may be impeded by the wording of this amendment. We are also concerned that it does not offer, in terms, a defence for those who do not intentionally facilitate this but whose bodily fluids are used by someone else for a malicious purpose. However, I will not say any more about that because my noble friend has recognised that the Government have listened to him on this and are taking the matter seriously. We recognise that more can be done to improve the effective prosecution of crimes in prison. It is a priority, and we will continue to work to ensure that those agencies and organisations prioritise serious crimes, enabling clear criminal consequences when they occur. HMPPS works with the police and CPS to improve rates of prosecutions for crimes committed within prisons.

I know that my noble friend is motivated by his admiration of the work of prison officers—I will not speculate about the genesis of that. But the fact is that they have to deal with some of the most difficult and dangerous members of our society. We in the Ministry of Justice share that view. In the prisons White Paper, published in December last year, we set out a zero-tolerance approach to crime in prisons. We will set up a crime in prisons task force, which will identify and expose any systemic failings that allow continued criminality in prisons, enhancing our capabilities to disrupt crime and ensuring that evidence and investigations lead to more criminal justice outcomes. We will commission the taskforce to look specifically at potting offences.

The White Paper also sets out our commitment to refer the most serious crimes, such as assaults on prison officers, to the police, in accordance with the crime in prisons referral agreement, which exists between Prison Service, the CPS and the National Police Chiefs’ Council. I appreciate that I have dealt with that fairly quickly, but I hope that I have reassured my noble friend that the Government have listened very carefully to what he has said.

I will respond to the point put to me by the noble Lord, Lord Ponsonby. Offences of potting are captured in published statistics—specifically the quarterly Safety in Custody Statistics. But if I can add anything to what I have just said, I will write to him. I hope that, for those reasons, my noble friend will feel able to withdraw his amendment.