Police, Crime, Sentencing and Courts Bill

Lord Sandhurst Excerpts

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

I say to the Minister who will reply that the responsibility of Ministers dealing with this sort of debate is to specify what gain there is, if any, by having such a low age of criminal responsibility. I think they will struggle.

[Lord Sandhurst (Con)]

My Lords, perhaps I may begin by saying that I support Amendment 220. I endorse it completely and have nothing further to say on it. Noble Lords have spoken with great eloquence and force. As the noble Baroness, Lady Chakrabarti, has explained, my Amendment 221ZA, is a probing amendment designed to correct the terms of a subsection in Amendment 221 in case that amendment goes forward and the Government are interested. Let me explain.

I should say at once that Amendment 221 is, in principle, good. If accepted, it would require the Government to carry out a review of the age of criminal responsibility. I have no argument with that whatever. The issue that I raise is with the list of factors to be considered by any such review and, in particular, the use of the word “gender”. The right word there should be “sex”. The requirement in Amendment 221 is that the review should take into account certain factors. It can take other factors into account, but the following are mandatory:

“age, gender and ethnic background”.

My focus is on gender. Those noble Lords who sat through the important debate on Monday night will have heard lengthy discussion of those terms and their use in legislation. I will come back to that.

When I drafted my amendment rather hurriedly on the Thursday, I focused on the terms in the Equality Act. Why I did so will become obvious in a moment. I used too many words; I just lifted other factors in order to include them. I am now satisfied that the only proper course is to remove the term “gender” and substitute that with “sex and gender reassignment”. The cohort, if the review were to take place, will be those under 18 and, for the large part, those materially younger. One could call them children. Importantly, “sex” is established in statute and describes physiology. It is not a social construct. It is easily identified, and is listed and defined, as I shall explain, in the Equality Act. It should be noted that “gender” is not so defined. I say that for noble Lords who were not here on Monday or have not studied the Act in detail.

Section 11 of that Act states:

“In relation to the protected characteristic of sex … a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; … a reference to persons who share a protected characteristic is a reference to persons of the same sex.”


There is further elaboration in Section 212, which defines “man” and “woman”—in other words, the terminology that has just been explained. It states that,

“ ‘man’ means a male of any age … ‘woman’ means a female of any age.”

There we have it all clearly defined. Sex is a physiological condition and, importantly for the purposes of a review, it is an objective fact, not someone’s opinion. It is not what someone identifies as. We are talking here about people under 18, usually those much younger. Also, we all know that sex is registered at birth. It is on the birth certificate.

In the case of a small number of people who are under 18 and may fall within the ambit of the review, there may be those to whom the term “gender assignment” will apply. They will be few, but if that does apply within the meaning of the legislation, that, too, will be a fact, not an opinion. That is because gender reassignment is also a protected characteristic under the Equality Act. Section 7(1) of that Act defines gender reassignment as follows:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”


So gender reassignment likewise refers to a physiological process and does not include mere self-identification or opinion. Lastly, in case anyone were to ask, “What about gender recognition certificates?”, they simply do not apply. One cannot have one of those if one is under 18. I say that so that everyone knows where we are.

Put simply, if there is to be such a review, the mandatory—if that is the right word—considerations should be age, sex, gender reassignment and ethnic background, but not gender. I commend this approach and await with interest the Minister’s response.

[Baroness Chakrabarti (Lab)]

I should say briefly in the absence of the noble Baroness, Lady Bennett of Manor Castle—perhaps it is not my place to do so because it was her amendment that I signed—that I should thank the noble Lord, Lord Sandhurst. We have been using various terms in Committee, but on this occasion he must be right. If one were considering children under 18 in the context of a review of the age of criminal responsibility, it would be a glaring omission to include “gender” instead of “sex” in the legislation.

Sometimes it may be appropriate to use both terms, and I supported that position on Monday in the particular context of a different amendment about hostility towards people. What I tried to suggest, and which Twitter does not reflect, is that hostility can be towards people in broader categories than those protected under the Equality Act. I would not want someone to be subjected to violent hostility, even on grounds that are not currently in the Equality Act, because they were non-binary or whatever. That is not really the point in this context. If I may say so, the noble Lord, Lord Sandhurst, put it very well.

What is more, I hope that the noble Baroness, Lady Bennett, will forgive me for making that concession, given that this is a probing amendment and her list of factors to be considered in any review was inclusive and not closed. I hope it is helpful to respond to the noble Lord, Lord Sandhurst, in this way.

Police, Crime, Sentencing and Courts Bill

Lord Sandhurst Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Berkeley (Lab)]

My Lords, I have put my name to this amendment, because it is a really useful proposal from London Councils. The noble Lord, Lord Tope, has well outlined the purpose and the benefits. The idea of a target of zero road deaths—I think that Sweden has a target going back 20 years—is a really important thing to go for in London.

Noble Lords will have seen the changes that have happened in London and other places because of the Covid epidemic. A couple of years ago, London provided much better cycle lanes and reduced some car widths and, in the process, reduced speeds. As someone who cycles around London all the time, I welcome that personally. Hackney, which was one of the first boroughs to go for this, is a pleasant place to pedal around now. It is key that this is done on as great a devolved basis as possible. Devolving it to the London councils seems an excellent idea; I am absolutely persuaded that they are capable of doing it.

The noble Lord, Lord Tope, touched on the £445 million of revenue generated by parking fines in London alone. The RAC Foundation appears to criticise this as milking the motorist but, as the noble Lord said, those people have contravened a regulation so we should not have any sympathy for them. If they had obeyed the regulation, be it on parking or speeding or whatever else, they would not have deserved to be fined. If they do not like being fined, it is quite simple: they should obey the legislation. I look forward to hearing what the Minister has got to say on this but it would be a first step in devolving some of these issues, which should be decided locally. If it is successful, it needs to go to other cities as well.

[Lord Sandhurst (Con)]

My Lords, I support these amendments. I do so as a resident and ratepayer of the London Borough of Wandsworth; I declare that interest. I was encouraged to speak in this debate and support these amendments by the Conservative leader of that borough. He believes that they are desirable and will be beneficial to the residents of his borough, and he will be answerable to his electorate in due course.

In short, these amendments will, subject to the Secretary of State’s approval, enable but not oblige a borough to take up powers over speeding restrictions and traffic light contraventions. The aim is very simple: to stop people speeding. Because the boroughs anticipate that taking over the management of speed enforcement will create something of a virtuous circle, they will be more energetic about it than the police are. They will enforce speed limits because they have a financial stake in it directly and, because they enforce it and recover the costs, they will have to recycle the money they get in highway improvements, traffic calming and road safety generally.

What is there not to like about that? It will benefit residents and road users. Better enforcement will bring down speeds on residential roads. Lower speeds reduce the level of pollution and particulates. Better enforcement by boroughs will make residential roads safer for pedestrians and cyclists. It is a commonplace that an accident at 30 mph can kill; a pedestrian hit at 20 mph or less has a much more viable chance of survival without even serious injury. So, if these amendments are accepted, there will be immediate health and safety benefit to residents in any borough that chooses to adopt them.

Giving boroughs control over speeding and traffic lights is simply a no-brainer. I stress that boroughs will not be compelled to adopt these powers; it will be for each borough to do so when the time is ripe and it is in a position to carry them out. In summary, these amendments will bring great benefit to the citizens of London.

[Lord St John of Bletso (CB)]

My Lords, I am afraid that I take a converse view on this. London has a massive problem with increasing traffic congestion, and I do not believe that reducing the speed limit to 30 mph is going to bring the death rate down to zero. On the converse, one of the biggest problems in London is pedestrians crossing the road more transfixed on their mobile telephones than on watching oncoming traffic. I am not opposing this amendment; I am just saying that reducing the speed limit will not necessarily bring the death rate down to zero.

Police, Crime, Sentencing and Courts Bill

Lord Sandhurst Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, it is a privilege to follow and support my noble friend Lord Moylan. If this speech is a little bit longer than I originally intended, it is to cover some of the ground that I understand would have been covered by the noble Lord, Lord Macdonald of River Glaven.

Making non-crime hate records has real-life consequences for an individual that are too important to be left unregulated. As we have heard, non-crime hate records are kept when no crime has been committed but the police decide that they have grounds for concern about how that person might behave in the future. Once such a record is made, it can remain for ever, without review. It will be disclosed in an enhanced criminal record request. It does not take George Orwell to show where that can lead. I suggest Sir Robert Peel would have been astonished.

I turn to the real-life case of Harry Miller of Lincolnshire. In 2018 and 2019, he posted tweets about transgender issues on Twitter. He holds gender-critical views but denies being prejudiced against transgender people. To quote from the judgment in the subsequent judicial review:

“He regards himself as taking part in the ongoing debate about reform of the law”.


Mrs B, a transgender woman, read the tweets and regarded them as transphobic. She reported them to Humberside Police, which recorded this as a non-crime hate incident. She was the only person to complain. A police officer visited Mr Miller at work to speak to him—in his workplace—about these tweets and left Mr Miller with the impression that he might be prosecuted if he continued such tweeting. In a subsequent press statement, an assistant chief constable raised the possibility of criminal proceedings if matters escalated. Imagine what that felt like for Mr Miller. He, however, applied for judicial review.

Mr Justice Julian Knowles, in a very fine and lengthy judgment, found that the police’s action towards Mr Miller disproportionately interfered with his right of freedom of expression. He reminded us that free speech is an essential component of democracy and of these words in the unpublished introduction to Animal Farm:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”


As the judge stressed, true free speech includes

“the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative.”

On the facts, the judge concluded that the tweets were lawful and there was not the slightest risk that Mr Miller would commit a criminal offence by continuing to tweet. That is the judgment in the High Court. Further, he said the police visit to the place of work, coupled with the subsequent press statement, combined to create a disproportionate interference with Mr Miller’s right of freedom of expression. He found that this had a potential chilling effect.

Therefore, the police should not continue to record non-criminal speech without proper oversight—that is what we ask. There must be clear criteria applied by all police forces uniformly. At present, the College of Policing lays down guidelines, but they are no more than guidelines: a police force is free, in principle, to depart from the guidelines. Indeed, the current guidelines state that:

“The recording system for local recording of non-crime hate incidents varies according to local force policy.”


That is not acceptable. These records, by definition, are of a non-crime; they are subject to no time limits; and the guidelines do not provide for mandatory periodic review, whether after one year, five years or 20 years. This is too important to be left to varying and uncertain police practice. Policy and practice in this field cannot properly be left to the wide discretion of different police forces. It should be for the Secretary of State, answerable to Parliament, to decide when, if at all, and in what circumstances and how such records may be made and kept.

A person’s reputation is of inestimable value. If a confidential record is made that he or she has spoken or behaved in a way that someone else has perceived to be motivated by hostility but which does not amount to a crime, that individual becomes a marked man or woman when a request is made by a current or prospective employer for an enhanced Disclosure and Barring Service check. As matters stand, that mark or stain can remain for ever, so what is at stake is very serious. This amendment will ensure that regulations set a definitive framework to ensure fairness; to ensure a consistent and fair process of selecting and recording personal data, identifying the different categories of personal data and its processing, identifying the persons whose authority is required for such processing, ensuring they are of suitable rank, the notification of the individual who is the data subject, how long the data may be retained and with what reviews. If someone is to be denied employment, we must be confident that the basis for this is sound and properly managed.

We have heard from my noble friend that the provisions will not apply to the processing of information pursuant to ongoing criminal investigation, nor for the purposes of administrative functions of the police authority. There will be no interference with operational policing. These amendments are needed to ensure that freedom of speech and opinion is not subjected, as the European court has said, to the heckler’s veto, and to create a proper balance between public safety, freedom of speech and protection of reputation.

Assisted Dying Bill [HL]

Lord Sandhurst Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I begin with praise for the speech of my noble friend Lady Davidson, even though I take a different view on the Bill. For one who is new to this House, it is a heavy responsibility to speak on so important a debate. Like others, I received many compelling letters and emails putting both sides of the case. We have heard many powerful speeches, but I am clear in my own mind as to where we should be going. I say that even though I am deeply troubled that people with horrible illnesses still die in pain, but this Bill is not the answer.

I am conscious that the Bill is likely to proceed beyond today, so I will highlight some important points of practice. Clause 3 stresses three critical hurdles: the capacity of the individual; that the individual has a clear and settled wish; and whether the individual is terminally ill. That last, we know, is often difficult to determine.

Judicial oversight must be effective and real, and I have great confidence in the judges of this country, but their task will be difficult. That oversight must extend not only to the first two things I have mentioned but, importantly, to the doctor’s certificate that someone is terminally ill; that must be open to review. It is an important precondition of going ahead.

How will the hearing proceed? English judges are not inquisitorial. Who will identify what evidence is not before the court and what has not been deployed? How will the court test for matters that lie below the waterline? Will there be counsel to the court? If so, who will pay for it? Finally, Clause 5 gives a right to conscientious objections. It is not clear to me whether this applies to the judges. I would be very unhappy if it did, but it should be made clear.

Moving to the substance, I make these points. Medical ethical issues are serious and, I think, unattractive. Doctors will be compromised. I will not repeat, but I adopt, what several noble Lords have said—in particular, the noble Lord, Lord McColl, the noble Baroness, Lady Stroud, and the noble and gallant Lord, Lord Stirrup. I hope my brevity in this respect will not be misconstrued.

Society will change for ever, attitudes to life will be changed; there will be no return. The dangers to the vulnerable highlighted by many are too significant to be ignored. Our present condition is of course imperfect, but this Bill is not the answer.