Police, Crime, Sentencing and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

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

[The Lord Bishop of Gloucester]

My Lords, I add my wholehearted support to this amendment. I am very grateful to the noble Lords, Lord Marks and Lord Ramsbotham, and the noble Baroness, Lady Bennett, for their continued commitment to women in the criminal justice system. As bishop to prisons and president of the Nelson Trust, I am acutely aware, as I have said so often, of the need for a gendered approach to justice. The noble Baroness, Lady Kennedy, has just put that very powerfully.

While men and women need to be treated with equal justice, equality is not about sameness. Women are caught up in a criminal justice system that has been designed around men, and there needs to be a gendered lens. As we have heard already, many, many women are more likely than men to be primary carers or victims of abuse or exploitation. When they are given a prison sentence, they are more likely to be given a very short one, often far from home. I do not want to repeat things that have been said so many times in Committee and on Report but, having lost the amendment on primary carers earlier on during Report, I am very grateful to noble Lords for bringing forward these amendments, which will go a long way towards ensuring that we get the same outcomes. I am therefore wholeheartedly glad to support these amendments.

[Lord Thomas of Cwmgiedd (CB)]

I rise briefly to add my voice in support of the amendments. I accept that the Youth Justice Board has been an enormous success, and that is primarily because it addresses two separate problems to deal with youths. One is the causes and reasons why they offend and the other is the need for their rehabilitation into society. Although, for reasons that are necessary for the trial of youths, they need a separate system, the underlying reason for the Youth Justice Board applies equally to women, in that there are specific causes of offending, the particular vulnerability, the particular issues they have with mental capacity in certain areas, the specific crimes to which they have been subjected and, above all, domestic abuse.

Moreover, it is plain that the kind of rehabilitation that women need is different. They need much more support in integrating them into the community, but they also need not to be treated or dealt with at centres. I warmly welcome what the Ministry of Justice has done and set forth in its strategy. The difficulty is that although there have been numerous reports about what is required—the report of the noble Lord, Lord Farmer, for example, and the many reports of the Prison Reform Trust—what is needed is delivery. Delivery is key to this, and that is why I warmly support this amendment.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendments 320 and 328, which would repeal the Vagrancy Act. This 197 year-old Act does nothing to tackle and resolve homelessness, and nor does it prevent antisocial behaviour. In fact, by criminalising rough sleepers, it prevents them accessing vital services to support them to move off the streets. This is important in the context of people trafficking—modern slavery. Its victims are those likely to end up sleeping rough on the streets to escape danger. They need our help. Criminalising rough sleeping marginalises the most vulnerable and may mean that rough sleepers move away from, not towards vital support. It does not address the underlying causes.

The Act now has only two effective provisions. Section 3 makes it an offence in any public place to beg or cause a child to beg. An offender can be locked up for one month. Section 4 addresses what we call rough sleeping. It also encompasses those who are in enclosed premises for an unlawful purpose. This is used to deal with people who are thought to be “up to no good”. The fact is that there are perfectly good ways of dealing with all those people both within and without the criminal law. Indeed, on 9 March the then Secretary of State said in answer to a Parliamentary Question that the Act should be repealed. In this amendment, we offer a fully drafted way forward. If minor changes are needed, they can be made—there is no problem there.

The number of convictions for rough sleeping and begging have fallen consistently in the past 10 years. Indeed, in 2019—the most recent year for which figures are available—only one person received a custodial sentence for begging, and only 16 received a custodial sentence for being in enclosed premises for an unlawful purpose. The numbers are tiny. Let us throw away the sledgehammer. The police, local authorities and other agencies have ample powers.

Let me explain very briefly. The Highways Act 1980, Section 137, makes it an offence wilfully to block free passage along the highway. That is punishable by a fine. The Public Order Act 1986, Section 5, makes it an offence to use threatening or abusive words or behaviour. That, too, is punishable by a fine. Moving to civil measures, the Anti-social Behaviour, Crime and Policing Act 2014 introduced a wide range of measures to deal with the different types of anti-social behaviour. Recourse can properly be made to those measures for people who are repeat nuisances. They are all available under the 2014 Act.

Taking it very summarily in the short time available, there are civil injunctions to prevent nuisance and annoyance. Breach of those civil injunctions gives rise to civil contempt, with all the remedies available for that—up to 2 years’ imprisonment for the worst offenders, but it is done properly. Secondly, there are criminal behaviour orders. These can impose requirements as well as prohibit certain activities. Thirdly, there are community protection notices. These can be issued by the police, a social landlord or a local council if behaviour is detrimental to the quality of life of a local community. Fourthly, there are dispersal powers, under which a local council, following consultation with the police, may issue a public spaces protection order to place restrictions or impose conditions on activities that people may carry out in the designated area.

In respect of that, since 2014 the Home Office has issued statutory guidance under the 2014 Act, recently updated this January. Our amendment, as noble Lords will see from its terms, will strengthen that. We propose a co-ordinated package. Where something has to be done, the police and local authorities have the powers to do it. We ask the House to act now to put an end to this prehistoric, unjust and inappropriate law. I commend the amendments.

[Lord Thomas of Cwmgiedd (CB)]

Briefly, I entirely support the repeal of the Vagrancy Act, and there is no point in repeating what have been compelling, eloquent and, I believe, unanswerable points. Long experience has shown that arguments do not get better by repetition.

What I wanted to do, however, was to make four quick points from my experience in support of Amendment 292J in the name of the noble Lord, Lord Hunt of Kings Heath. First, the category of person dealt with is easy to identify. Therefore, that is not an answer. Secondly, the evidence of the risk of future offending is compelling. That in relation to Wales is set out—I need not repeat it—in the report of the Commission on Justice that I chaired and there is masses of such evidence. Thirdly, the proposal is plainly value for money. One has only to look at the cost of what it takes to deal with those who have gone wrong. Fourthly—surprisingly, some may think—the proposal would have enormous public support. When we canvassed views about it, and when I did so as a judge, one always found that the overwhelming majority felt that these people deserved a chance and support.

[Lord Paddick (LD)]

My Lords, my noble friend Lady Thornhill has spoken comprehensively on these amendments, so I can be brief. I thank the noble Baroness, Lady Blake of Leeds, for introducing the amendment. She rightly points to the failure of the current legislation to adequately deal with this problem on the basis of the facts that she presented. Something clearly needs to be done to ensure that the police play their part. If South Yorkshire Police can do it, why cannot every force? We support this amendment.

I also thank the noble Lord, Lord Hunt of Kings Heath, for his Amendment 292J. Noble Lords may have seen the ITV “News at Ten” last night on how young people are increasingly being exploited, particularly by drug dealers. That is in addition to a 6% increase in reported domestic violence during lockdown, when many more children would have become vulnerable. There is too much emphasis on the criminal justice system as a way to deal with these vulnerable young people, rather than there being a statutory duty on local authorities, the NHS and the police, as this amendment suggests. We support it.

The noble Lord, Lord Best, introduced Amendments 320 and 328. I remember being told as a young constable about the antiquated legislation—the Vagrancy Act 1824—introduced to deal with soldiers returning from the Napoleonic wars. That was in 1976—not the Napoleonic wars, when I was a young constable; they were a bit earlier. People should not be criminalised simply for begging and sleeping rough. There is adequate alternative legislation to deal with anti-social behaviour and the Vagrancy Act is now redundant. As the explanatory note says, these amendments would require police officers

“to balance protection of the community with sensitivity to the problems that cause people to engage in begging or sleeping rough and ensure that general public order enforcement powers should not in general be used in relation to people sleeping rough, and should be used in relation to people begging only where no other approach is reasonably available.”

On that basis, we support these amendments as well.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Lord, Lord Thomas of Gresford, for moving this amendment. I had not realised, until he mentioned it, his own critical role in the constitution of the UK as it is now through the evidence that he gave to the Kilbrandon royal commission, rightly described as important. Now we know where to look when we see problems in relation to the constitution.

I wholeheartedly agree with the underlying point that drives the way the noble Lord put his case. The criminal justice system is in a terrible mess. He described the position of the prison system, which is also a terrible mess and is not delivering on its aims, particularly to protect the public from crime and reoffending. However, it does not just go to imprisonment; the whole range of sentencing is now in a terrible mess. It goes even beyond that, to the way that the criminal justice system operates in terms of both its procedures and its effectiveness. Surely the time has come for a long hard look to be taken at the criminal justice system.

This is not remotely a criticism of the noble Lord, Lord Thomas of Gresford, because a royal commission is a worthwhile thing, but I can imagine no more profound exercise in futility than a royal commission promoted by your Lordships’ House, moved by the marvellous noble Lord, Lord Thomas of Gresford, and the wonderful noble Lord, Lord Marks of Henley-on-Thames. Can your Lordships imagine this Government —the Government who approximately an hour and a half ago wagged their finger at us and told us we had to finish the consideration of this Bill by the end of tonight, no matter what time it ended—listening to a royal commission’s proposal for an objective look at sentencing? My own judgment is that, sadly, although the noble Lord, Lord Thomas, makes a very powerful point, the same finger of this Government would be waved at the royal commission and no attention would be paid to it. I share the noble Lord’s feeling and analysis but I fear that, because of the nature of this Government, it would be a waste of time.

[Lord Thomas of Cwmgiedd (CB)]

May I add a more hopeful note? It has been wonderful to see this Government bring forward Professor Ormerod’s work on the Sentencing Code and bring it on to the statute book, and in this Bill—this is a good point—the code is being amended rather than there being any new proliferation of legislation. So one ought to say thank you for that.

However, the Sentencing Code shows the problem. I do not know how often the Minister looks at it but it is a fiendishly complicated set of sentences that we have accumulated over the years. Although we have seen a lot of criticism of the 2003 Act, I would say in its defence that an awful lot of thought was given to it. It may not have been quite right, and there was one area which has gone badly wrong. As I complimented one side, I now compliment the other: when we looked at the 2012 reforms to sentencing, a huge amount of thought went into that. A lot of sentences that were thought to be apposite were brought forward or modified, but at least there was some thinking.

We have now reached a stage where we need—on, I hope a nonpartisan basis—to think again. Is it too complicated? The answer must be yes. Have we got the sentencing regime right in terms of its outcomes and, equally importantly, its cost and whether the money can be spent better? There can be no better mechanism for that than a royal commission. I would hope that the initial thoughts of those who drafted the manifesto could be taken forward, at least in that respect. I would hope, though maybe I am being optimistic, that when it was all laid out what an awful state our sentencing regime is in, logic would prevail and we would see some reform. However, that is just an expression of hope by a person who is not a politician.

[Lord Beith (LD)]

My Lords, I support the amendment. My support goes back to the time when I served as chairman of the Justice Committee in the House of Commons. I became utterly convinced that the absence of a coherent strategy or policy for the use of custody and other disposals was extremely damaging and distorted the use of resources in the criminal justice system to an amazing extent, leading to unsatisfactory outcomes in reducing reoffending and many other respects.

If I had not been so convinced, even during the passage of this Bill we have seen further examples of an incoherent approach to sentencing. In the course of the Bill, it was announced in the press, but by a Minister, that there would be a mandatory life sentence for the manslaughter of emergency workers. The Daily Mail reports today that that provision will be included in the Bill, although it is not clear to me how that can be accomplished—it is not even in the government amendments tabled for today—but that would be a very significant change.

We are also told that the Government intend to provide for an offence of the theft of a pet animal with a sentence of up to five years’ imprisonment. So you could get up to five years for stealing your neighbour’s cat by putting out a dish of milk and some bread because the cat seems a little underfed because your neighbours do not look after it as well as you think you would. It is absurd that we should get into that situation of sentence inflation—and there will be sentence inflation, as my noble friend referred to, because then you have arguments where legitimate organisations come to us and say, “There should be at least seven years for this offence because you get five years for stealing your neighbour’s cat.” That is how the parliamentary and political side of sentence inflation works. My noble friend has pointed to how it influences the judiciary as well, when minimum sentences cast—I was going to say “a shadow” but, rather, a particular colour of light on decisions about offences that fall short of the maximum sentence.

The reason I think a royal commission would be appropriate—notwithstanding the belief of the noble and learned Lord, Lord Falconer, that no one in government would take any notice of what it said, whoever had appointed it—is that there are different kinds of issue that need to be considered. Some are philosophical issues and issues of principle while others are practical, but they all affect sentencing and all lead to the misuse of custody, either in its extent or, in some cases, in its use at all, when other disposals could be more effective in preventing crime and dealing with offenders.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will attempt to address three short points in the hope that I can push a little on an open door.

On the first point, relating to abstraction from mobile phones, the door has already been opened by the Minister. This problem has bedevilled the criminal justice system for at least nine years, and the opportunity has now come to deal with it comprehensively. The Bill does not do so. My noble and learned friend Lord Judge admirably put the change in the mores in a way which I could never match, but there is an area on which I can perhaps add a bit—the change in technology and the advent of programmes that can be used to assist has greatly changed things. I hope, therefore, with the indications given by the Minister, that we can look for a comprehensive piece of work, in a code or in statutory provisions, that will deal with this subject comprehensively.

The second area I want to turn to briefly is the use of out-of-court disposals. They play an essential part in the criminal justice system; I wish to say nothing about the specific changes put forward. However, with the growth in the use of out-of-court disposals over the past 15 years, there has been the need to ensure consistency, transparency and accountability. Attempts have been made by the judiciary, in conjunction with the magistracy, the police and the Government, to try to set up some form of accountability, particularly through panels of magistrates. I have no time to go into the details of that but a lot of it is summarised in a report by Cerys Gibson of Nottingham University, published by the Sentencing Academy in February. What is needed, if the confidence of victims and the public is to be maintained in this very extensive use of sentencing powers, is proper scrutiny. This will ensure consistency so that one force does not vary from another; we cannot have a postcode lottery. We also want to be sure that the police carry this out fairly and appropriately. I hope that the Minister will be prepared to explore this area, which needs dealing with comprehensively.

Thirdly, Clause 109 concerns a much more specific but important point. For the past 20 or so years, it has been a hallmark of our justice system that matters dealing with the sentencing of individuals are dealt with utterly independently and that people are not put, or kept, in custody for longer other than through a judicial or Parole Board process. The power under Clause 109 may be needed to deal with high-risk offenders in respect of certain individuals, but it is a power referred to the Parole Board by the Secretary of State. I very much hope that we can do two things: first, ensure that the clause is drafted in such a way that the risk of political pressure is removed; and, secondly, ensure that no one is kept in prison for longer than is necessary and that the decision to keep someone in longer is that of an independent body. As I read the clause, as it is currently drafted, it is possible—by a very late reference by the Secretary of State—for someone to be kept in custody without any judicial determination. I hope, therefore, that the clause can be looked at carefully and amended, because I am sure that no one wants to see us go down the road of terms of imprisonment being extended other than by an independent judicial body. It may be a small point, but the two hallmarks of our system require independence from political interference and decisions on custody being totally in the hands of independent bodies.

Forensic Science and the Criminal Justice System (S&T Committee Report)

Lord Thomas of Cwmgiedd Excerpts

Monday 26th April 2021 Grand Committee

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, it was a great privilege to have been co-opted to this committee for this inquiry, and a privilege, pleasure and education to serve under the wise and far-sighted leadership of my noble friend Lord Patel.

During the course of the evidence, it was sad to hear that the respect in which the leadership the UK had shown in forensic science had declined so rapidly. Only a few years before, that leadership had been celebrated at a conference organised by the Royal Society, which demonstrated that the UK was then significantly ahead of several states and of the leaders in the field, which are acknowledged to be Australia, Switzerland, the Netherlands and the United States. I had hoped that this report would provide the opportunity for the UK to regain that lead, particularly as a result of serious issues relating to forensic science that had arisen in the United States under the leadership of its then President.

The report concluded that the failings in the system were due to three matters: lack of high-level leadership, lack of funding, and insufficient research and development. The noble Lord, Lord Patel, gave a perfect overview, and I join him in tributes to those who advised the committee. Other noble Lords have dealt with other issues, in particular the market, AI and miscarriages of justice. I will confine my remarks to leadership, and to research and development. I appreciate that the criminal justice system’s focus over the last year and a half has been on dealing with the problems brought about by Covid-19, but forensic science is essential to justice and nothing can excuse a failure to plan ahead now to restore its position.

I therefore turn first to the need for high-level leadership. I tried to find out what has happened since the Government’s response to the report in July 2019. The criminal justice board publishes its minutes. The minutes of July 2020—the last I was able to find—said this. They are short, so I can quote them:

“Forensics: Stocktake 2020 … The LORD CHANCELLOR spoke about the importance of forensics within the CJS and was pleased to receive an update from the Forensics Sub-Group to the CJB which is jointly chaired by the Ministry of Justice and Home Office.


BARONESS WILLIAMS OF TRAFFORD noted that the Sub-Group had identified the need for the Forensic Science Regulator to become a statutory body.


The LORD CHANCELLOR thanked the Sub-Group for all their work and invited Board members to provide further comments, outside of the meeting, on the paper presented.”


If I may respectfully say so, I am afraid that is not very informative as to progress over a year.

More seriously, the criminal justice board has much else to do. In the years I served on it or went to its meetings, which was shortly after its formation until I retired as Lord Chief Justice, it was not the kind of body, nor was any sub-group, that was effective on the detailed issues that require great expertise and knowledge of science and the law with which this issue is concerned. However, more serious is the problem that the work on forensic science needs to be independent and accountable. The minutes show how unaccountable it is because there is no explanation of what it does, and it cannot be regarded as independent. Forensic science needs to serve the police, the prosecution, the defence and the interests of justice. It is very difficult to see what the criminal justice board sub-group has done on that first issue.

The second thing, which is about to happen, is putting the Office of the Forensic Science Regulator on a statutory basis. Dr Gillian Tully was an excellent regulator. She retired two months ago—she was a pleasure to work with and achieved a great deal. Her most recent achievement was dealing with the very difficult subject of standards for evaluating opinions, which play such a large role in the evaluation of forensic evidence. There is an interim regulator, but when is the new regulator to be appointed? When will the Government look seriously at its powers? That is the key issue. Although the regulator’s role is key, it is not that of leadership. It is to ensure quality and accreditation, and that the market functions efficiently. It is not independent and it cannot provide the holistic leadership of scientific research required in our system.

I look forward to hearing that much more may have been done, but I could not find it. Maybe that is due to my inability to trawl the records in sufficient detail, but I could find no explanation elsewhere. I very much look forward to what the Minister can say about progress. The UK needs to be back at the top of the league, and it can do that only with holistic leadership of the kind set out in the report.

The second aspect I briefly refer to is the need for proper funding of independent forensic research. Again, I refer to just two areas: digital and DNA. It is clear from the evidence received by the committee and from evidence I received when chairing the Welsh Government’s Commission on Justice in Wales that digital forensics remains a major issue. Indeed, it has been an issue for the last nine years. Two things have gone hand in hand: the increased power of mobile devices and their ability to store so much, and the increased use of them to communicate in permanent record things that would never have been recorded before, which comes as a surprise to many. They are therefore essential to the administration of justice—not only for establishing guilt but for showing that conduct that may be complained about was innocent.

The use of digital forensics is important to the deterrence of crime through successful prosecution, the confidence of victims in the system, as assurances about the way information is contained in phones is critical, and, equally importantly, the proper use of police time. For example, in commercial litigation, increasingly sophisticated and independently reliable software has made a very significant difference. It extracts and searches properly and reliably. As far as I can ascertain, there are still serious issues with what needs to be done to tackle these matters—extraction and particular searching—so that something reliable is available to the police, the prosecution and the defence, which is so critical to the three issues to which I have referred. There are other aspects, including AI, facial recognition and deepfake, about which the noble Lord, Lord Mair, has spoken and which underline the urgent need to address an area that requires significant leadership and investment.

DNA has been essential to the criminal justice system since the 1990s. It has made a significant contribution to the conviction of the guilty and, equally importantly, the exoneration of the innocent. It has been a journey not without its problems: low-template DNA brought about serious miscarriages of justice in the way in which it was first used, and mixed and partial profiles and transfers have been a real problem. Much has been done; the Royal Society has led with a primer on this subject, which is parallel to the one spoken of a short while ago. But as I understand it, there are issues with mixed and partial profiles and transfers, and much more needs to be done. These are but two examples of the need for development and research—and it is development and research that are both scientifically independent and not dependent on police budgets.

The forensic science budget, to the extent that it is now largely in the hands of the police, must be looked at again. As the noble Lord, Lord Krebs, stated, I very much hope that the Minister is able to tell us a bit more about what UKRI has been doing, what advice it is taking and what it is going to do to bring investment to these vital areas.

Let me look at a way forward. I hope that the way forward will be by government action. In March 2011, the Law Commission produced an excellent report on expert evidence and draft legislation. Two years later, the Government said they would not bring forward a Bill and, therefore, made it clear that it was up to others—leave the law as it is, or look for change. All the reforms envisaged by the Law Commission were then brought about by the Criminal Procedure Rules, much to the benefit of the criminal justice system, and they worked.

The report we have been speaking of is the 10th in 10 years. As far as I can ascertain, nothing much has happened, although I hope the Minister will be able to tell us otherwise. It may be that it is because structures are not devised to be accountable or informative. However, forensic science is essential to justice, as the speech of each of your Lordships has shown, and it is essential to keep the UK at the forefront of world leadership in science and the law.

I trust that Her Majesty’s Government will not fail in restoring the position, but if they do, I hope that we will be able to find an example similar to that which was taken in relation to the report of the Law Commission and find another way to put into operation this excellent report, if Her Majesty’s Government feel unwilling or unable to do so.

Domestic Abuse Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Wednesday 10th February 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

I shall speak very briefly on Amendments 178 and 188. I thank the Minister for moving them and express my support.

In the traditional approach to domestic abuse, we looked separately at the responsibilities of local authorities, health authorities, the police, the courts and those responsible for offenders. We generally also legislated separately. The modern approach is to try to tackle domestic abuse by a combined approach that tries to ensure that all who have an interest in doing what can be done to see that domestic abuse is properly tackled and prevented—local authorities, health authorities, educational authorities, the police, the courts and those responsible for offenders—work together under a single piece of legislation, under a single strategy and with single guidance. For England the Bill will do that, and I believe it will do so better still when it is amended in the way urged in the many powerful speeches made and the careful amendments proposed in this House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

Finally, I would remind the House that we are talking about children who have already been let down by the institutions of state, their families and their peers. These are not children who have a clear idea of where their best interests lie, otherwise they would not be available for this task. The least we can offer, and the most we still have available, is robust and thoughtful guidance that puts the best interests of all children beyond doubt.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I wish to speak to Motion E. I have nothing to add to the eloquent observations made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, on Motion A.

First, I thank the Minister, and in particular the Bill team, for the constructive discussions I have had since tabling my amendment. Its purpose is to add to the real-time notification a mechanism to ensure that action is taken if the judicial commissioner has made adverse comments or found that the authorisation should not have been granted. In the debate on Report, the noble Baroness, Lady Manningham-Buller said:

“It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount.”—[Official Report, 11/1/21; col. 538.]


I believe that she was right to say what would happen if a judicial commissioner expressed that view.

However, I took the view then, and still take it, that there must be something which operates as a mechanism to ensure that something does happen: that in some cases the authorisation should be discontinued or unwound in an orderly manner. An amendment to the Bill would have been the better course, and I much regret my own failure to try to persuade the security services that it would be in their own interests to have it in the Bill. But taking into account what the noble Lord, Lord Carlile of Berriew, said in the same debate in relation to the utility of codes of practice, and my objective, I am glad that the Minister has agreed to insert into the code of practice the wording that she has read out.

It achieves a number of purposes. First, it goes slightly wider than my proposed amendment, in that it will apply to all observations, not merely saying that the authorisation should not have been granted. Secondly, it requires the person who gave the authorisation to take action, but to work out what to do. If that person gets himself or herself into the position of doing something that should not have been done, they should be responsible for working out how to get out of it. Thirdly, it requires a more senior officer to be notified of what is intended. It has always been my worry that a person in the position of an authorising officer whose action is disapproved of might try to cover up what has happened. Finally, it requires the office of the IPC to be notified of the intended action—that is, before the action is taken, save in cases such as urgency or where the action taken is simply to stop the activity. It enables the IPC to express a view and, if there is a difficulty, to work out what should happen in a collaborative manner.

As I have said, it would have been far better if there was a legislative provision of the type proposed, but as a matter of practical reality, I would hope that this insertion into the code of practice should ensure that if the judicial commissioner does not approve of the authorisation or of what has happened, or criticises it, there is a clear mechanism in place to stop the activity or modify it accordingly in a manner that protects the CHIS.

The IPC is a body with very great authority, comprised as it is of senior judges. It has been my experience throughout my former judicial career that remarks made in such circumstances as this are ignored only at the peril of the person concerned. I would hope and expect, therefore, that the observations will be acted on immediately and that the office of the IPC is notified of any intended action. If, contrary to my expectations, this does not work, the people who will suffer real damage will be the police and the security services; to them, the damage will be immense. What I hope would happen is that this provision will strengthen the view that before making an authorisation in unusual and not simply routine circumstances—most of these authorisations apply to routine circumstances—the police and the security services would serve their own interests far better by going to the office of the IPC before they authorise an action rather than afterwards.

[The Deputy Speaker (Lord Alderdice) (LD)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord West of Spithead, Lord Young of Cookham, Lord Russell of Liverpool and Lord Adonis, and the noble Baroness, Lady Jones of Moulsecoomb. If any other Members in the Chamber wish to speak, I ask them to contact the clerk as soon as possible.

Domestic Abuse Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 1st February 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

I will speak in support of Amendments 101, 176 and 177 to this absolutely excellent Bill, which is so clearly and urgently needed.

My experience has taught me for some time that the best method of dealing with domestic abuse is to ensure that there are properly co-ordinated approaches, particularly among the specialist services, at a local or community level, underpinned by clear national powers and funds properly targeted at the right priorities. To this end, it is important not only that funds are directed at providing financial assistance to the services that protect and deal with victims in every local authority but that the local authorities and the various justice agencies work closely together to provide integrated specialist services to try to prevent domestic abuse and to deal with the consequences, particularly for the victims, including child victims. I therefore strongly support Amendments 101 and 176.

I will add a word about Amendment 177. Unfortunately, because of the way in which devolution has proceeded in Wales, there is a very complex distribution of powers. It gives rise to what is aptly described as a “jagged edge” at the interface between those services for which the Welsh Government and Senedd are responsible, such as local authorities, health boards, social care and Cafcass, and other services, such as the police, for which the Home Secretary is responsible. As set out in the report of the commission I chaired, which was published last October, a long-term solution may be to devolve justice to Wales, but that is not a subject on which I wish to say anything this evening. What is important to address in the meantime is the working together of the relevant bodies; in particular, the co-ordination of the different legislation in Wales and the different structures of government.

In the report of the Commission on Justice in Wales, we drew attention to the leadership that the Welsh Government could show in deciding to tackle this, and to the success of the subsequent legislation—the Violence Against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015—and the various other initiatives taken in Wales. The Act imposed on local authorities in Wales duties to prepare and implement strategies to tackle domestic abuse and to pursue other initiatives. The commission drew attention to the collaboration between the police and the Welsh Government in addressing these and similar issues, and to the structures that existed at local government level for this. Despite that, I think that this amendment is necessary to ensure that there can be no doubt about the statutory underpinning of the current structure of devolution of these distinct services.

This Bill—here and in other places—needs to ensure that until the jagged edge is eliminated, provision is made to strengthen the interface while acknowledging distinct governmental responsibilities. Amendment 177 is therefore particularly to be welcomed. Getting the legislation right so that it addresses the jagged edge is one thing. What is important, as Welsh Women’s Aid has so eloquently stressed, is ensuring that the Bill, when it becomes an Act, and the Welsh Act are implemented in a co-ordinated manner, that the services work together and that, above all, as so many noble Lords have said, there is proper funding, for without that none of this will work. I hope that the Minister will be able to accept all these amendments.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support all these amendments, which are very sensible and practical. I will take them in reverse order.

Getting the PCCs involved is a great idea—I am just astonished that it is not happening already. The earlier grouping considered the provision of refuges for people fleeing domestic abuse. I support the comments of my noble friend Lady Bennett of Manor Castle on that, but I stress the importance of seeing refuges as part of an ecosystem of services available for survivors. I have visited refuges; they do their best and, obviously, they are safe and protected. At the same time, however, it is much better for survivors to stay in their own homes if they want to. The perpetrators—the abusers—ought to be the people who get ostracised from their communities and thrown out of the family house. I do hope that this will be possible. It would need adequate provision by specialist domestic abuse services, as would be required by Amendment 176, which I strongly support.

In those situations where a person does have to leave their local area, Amendment 101, moved by the noble Baroness, Lady Burt, would ensure that they do not fall into destitution while they start piecing things back together. I was very struck by the excellent speech of the noble Lord, Lord Polak. I liked his urging the Government to be bold. Quite honestly, this is a great Bill and if they were to make it really wonderful, it would look so good for the Government; let us face it, they need some good optics these days. To be bold on this and actually do something for children—to mop up the school meals mess—would look great. So, I urge the Minister—all the Ministers—to think very hard about accepting almost all the amendments, which are being put in what I would call a very helpful way, to make this very good Bill a great Bill.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th January 2021 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

34: After Clause 2, at end insert—
“(6) If upon notification under subsection (3) a Judicial Commissioner determines that the authorisation should not have been granted, the person who granted the authorisation must be immediately informed and all further activities that will or might be undertaken pursuant to the authorisation must cease forthwith, subject to the power of the Judicial Commissioner to allow actions specified by the Judicial Commissioner to continue for the purpose of discontinuing the activities for which authorisation had been granted.”Member’s explanatory statement
This amendment is to ensure that on a determination by a Judicial Commissioner that an authority should not have been granted, activities under the authorisation cease forthwith.

[Lord Thomas of Cwmgiedd (CB) [V]]

I beg to move.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

I referred in Committee to our swimming in murky waters on this Bill. Nothing brought that home more clearly this afternoon than the impassioned speech of the noble Lord, Lord Paddick, who talked about his personal experience of handing out brown envelopes stuffed with cash to members of the criminal fraternity for what they had done to help solve a greater crime. However, while we accept that, we must also accept—I say this very gently to the noble Baroness, Lady Jones of Moulsecoomb, for whom I have high regard—that we are not just dealing with police spies. We are also dealing, in the very deep waters of international relations, with those whom in an earlier debate the noble Baroness, Lady Manningham-Buller, reminded us are among the bravest of the brave. I do not particularly like the Bill but I utterly accept the necessity for it. I hope we can improve it on Report and that, in the context of these amendments, we can make it abundantly plain that anyone who suffers as the result of an action of a CHIS, deliberate or otherwise, will be adequately and properly compensated.

[Lord Thomas of Cwmgiedd (CB) [V]]

It is a privilege to follow the noble Lord, Lord Cormack, and I associate myself with his remarks about the noble Baroness, Lady Chakrabarti, and her desire to clarify and improve the Bill. In no way should her motives or actions be impugned.

Because this will be a long debate, I will speak only briefly about Amendments 21 and 22, to which I have added my name. If we are to legislate and to put this regime on to the statute book, we must have absolute clarity. The amendments establish that degree of clarity in relation to criminal and civil responsibility. I attach particular importance to the issue of criminal responsibility because in such a matter, it is very important that we keep alive elements of deterrence to show that the law can act swiftly and clearly if people corruptly misconduct themselves in public office or go much more seriously into criminality in authorising crimes. The noble Lord, Lord Anderson, set out with admirable clarity the changes that are required. I would not think that assurances given by a Minister would be adequate in this case. A statutory regime must start and end with a statute.

[Lord West of Spithead (Lab) [V]]

My Lords, the Intelligence and Security Committee, which I sit on, welcomes the introduction of this Bill to Parliament. We strongly support the principle behind the legislation. Covert human intelligence sources, or agents, provide invaluable information to assist the security and intelligence agencies in their investigations. They play a vital role in identifying and disrupting terrorist plots. They save lives. In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information the authorities need. This may require them to act in a certain way. Put simply, if they are to be believed to be a gang member, they need to act like a gang member. If they do not, it is no exaggeration to say that they could be killed. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so in certain circumstances and subject to specific safeguards. The Bill places the existing powers that certain organisations have to authorise such activity on an explicit statutory basis. We believe that there is a need for such authorisations and we have seen real examples where this has saved lives.

For these reasons, I oppose Amendments 1 and 2. CHIS who have been asked by the state to commit criminal acts should have some certainty that they will be afforded protection from prosecution—now of course on a statutory basis, not the informal basis on which it was done before. When carrying out often dangerous work on behalf of their authorising organisations, they need that certainty.

Having said that, I am reassured that the Bill does not prevent the prosecuting authorities considering a prosecution for any activity outside the specific conduct authorised in the CCA. That properly authorised conduct is now lawful makes it all the more important that these provisions be subject to rigorous safeguards and oversight. In that vein, I strongly support Amendments 21 and 22 in the name of the noble Lord, Lord Anderson.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I do not wish to address at any length the various competing amendments that are being suggested. Speaking for myself, I believe that pre-authorisation in one of the forms suggested is the obvious way forward. I have absolute confidence in the ability of the judicial commissioners to assess and make a judgment and, although I have much sympathy with the view that things are better now than they were in the past, we simply cannot ignore past experience, as we are constantly reminded.

As my second choice, I would go for real-time notification. I tabled Amendment 34—this is the subject on which I wish to speak—to clarify the position as to what happens if, after notification, the judicial commissioner expresses the view, or says, “This should not have happened.” It is clear from the way the Bill is drafted that, as the term “notification” is used, everything that is done prior to any decision by the judicial commissioner would remain authorised. The amendment proceeds on that basis and seeks to make that clear. However, what then happens if the judicial commissioner says, “Well, this should not have been granted”? It is very important when we try to clarify the law and put it on a statutory basis that we do not engage in a fudge. The word “notification” is used deliberately to provide for notification, but it simply does not say what happens when the commissioner makes a decision. This amendment makes it very clear that, if the judicial commissioner says that this should not have been authorised, then, subject to unwinding under a degree of judicial supervision, the activity must stop.

I have had very helpful discussions. I pay tribute to the Minister for organising this and to the officials who have been clear in some of their views. However, it has been explained to me that, in these circumstances, it is thought that, if the activity has not started, it would stop; but if it has started, it must be for the authorising officer to consider what to do. This is plainly not good enough. First, the judicial commissioner is not giving advice but making a determination; although not they are not sitting as a judge, it is as close to a judicial decision as you can get. Secondly, if the judicial commissioner says that this should not have been granted, can the authorising officer say that he is acting lawfully by going on with the activity? Thirdly, in those circumstances, is the officer at risk of committing the offence of misconduct in public office? It would be extraordinarily difficult to see how he could continue. What happens during the process of a criminal trial if a person continues in such circumstances? Does all this have to be disclosed?

Worst of all, what is to happen when the Investigatory Powers Commissioner publishes in his report that he said, “This should not have been granted” but the police or security services went on with it? As I understand it, the justification for opposing this, or saying that it is unnecessary, is, first, that the judicial commissioner is not making a decision but merely giving advice. With respect, that is pure sophistry. Secondly, it is said that you cannot have unwinding under judicial control as judges are not experienced in this sort of matter. I ask those who have doubts about the ability of judges to protect people to read the decision to which I was a party in a case called WV in 2011. In respect of a person who provided very valuable information to the police, the judiciary had to act to protect the person concerned, but in circumstances where in no way could that person be identified.

Therefore, it seems that the question of this amendment is straightforward. If a police officer or a member of the security services who has granted authorisation continues and does not accede to the judge’s decision, this says that we are a country that does not abide by the rule of law. In my respectful submission, it would be very difficult to see how this could be judged internally and it would do our security services great damage if it related to something overseas.

However, as this last remark shows, what I fear for in this is the damage that continuing with activity if the judicial commissioner says no will do to the security services. If the Minister opposes this amendment, I would ask her to set out what is to happen; we cannot leave this point undealt with. If it is possible, I ask her to deal with three of the main scenarios. If no activity has happened, surely the activity must not proceed. If activity has started, it must be stopped and unwound. I would hope for an assurance that, once the views of the judicial commissioner have been expressed, the activity would not go on.

This amendment seeks to deal with a subject that may be uncomfortable for people to face up to: that you have an authorising officer who says, “Yes, I think this is all right” and then a judge says, “No, it wasn’t.” We need clarity. When you think about this question, it shows the dangers of not having pre-judicial authorisation in a system. I suspect what will happen—this is why it is a great pity that we have not been able to go into this in much more detail with examples of what actually happens—is that once a judge says, “This should not have been granted” we will probably gradually move to a system of pre-authorisation.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I very much enjoyed the previous speech, which gave me much information about a great number of things. I thank the noble and learned Lord, Lord Thomas.

My noble friend Lord Dubs has set out the parameters of Amendments 5 and 23 and my noble friend Lord Rosser has made incisive comments on them. I will add just a few comments in support of my noble friend’s arguments. Basically, the issues in the amendments are covered in Chapter 7 of the Joint Committee on Human Rights report on CHIS, entitled “Adequacy of oversight mechanisms”—surely absolutely essential. The Joint Committee had several concerns about this part of the Bill.

First, the Bill does not suggest any independent scrutiny of criminal conduct authorisations before they are made and acted upon. Secondly, the process of granting CCAs will be kept under review by the Investigatory Powers Commissioner in the oversight of CCAs after the event. He or she will not be informed of the authorisations at the time they are made, so how can prompt scrutiny take place? It is worth repeating those points, which were made by my noble friend Lord Dubs.

The Joint Committee on Human Rights report quotes Sir Desmond de Silva’s report on the death of Patrick Finucane. He accepts as legitimate the running of agents within terrorist groups as at the heart of tackling terrorism but says that the

“agent-running must be carried out within a rigorous framework. The system itself must be so structured as to ensure adequate oversight and accountability.”

Those conclusions are consistent w\ith the requirements of human rights law. There must be effective safeguards against abuse. The question is: does the Bill provide that rigorous framework of oversight and accountability? The amendments query that. In its submission to the JCHR, the law reform and human rights organisation Justice said that the Bill is

“extremely limited in its oversight mechanisms”

and that its safeguards were “woefully inadequate”.

The draft code of practice published with the Bill describes how the CCA practice will operate. Only a designated officer within a public authority may make a CCA, and this must be made in writing unless urgent.

Oversight of the Investigatory Powers Commissioner —who must be a senior judicial figure, of course— applies to CCAs. The IPC has the powers to conduct investigations, inspections and audits, but these are oversight functions only. The IPC does not have the capacity to investigate every time a CCA is used. The IPC role is restricted to covering the use of the power to grant CCAs in the annual report to the Prime Minister. This can be redacted before going before Parliament.

Reprieve has said:

“Once more, the oversight powers in this Bill are far weaker than those operated by the UK’s intelligence partners. The FBI has repeatedly released details of the number of crimes committed by its agents as part of efforts to increase transparency over the use of this power.”


There is currently a lack of prior independent scrutiny or approval for CCAs, as described in the report of the Joint Committee on Human Rights. This contrasts with, for example, police search warrants and phone tapping.

The Bill requires amendment—and these amendments in particular—to remedy this lack of prior judicial approval for CCAs, with provision for urgent cases, and I strongly support Amendments 5 and 23.

--- Later in debate ---

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have signed Amendments 6 and 36, having tabled similar amendments myself in Committee. At this stage, I am a little mystified by the Government’s position. They seem to accept that the relevant belief of authorising officers should be reasonable to the point where they have made an amendment along these lines to the code of practice at paragraph 6.4. Yet they refuse to make the equivalent amendment to the Bill.

The noble and learned Lord the Advocate-General defended the Government’s position in Committee, as the noble Baroness, Lady Hamwee, said, on the basis that it would promote consistency between different parts of the Regulation of Investigatory Powers Act. I suggest that is an argument of little force, given the unique nature of the power conferred by the Bill.

In fact, it is the Government’s position that results in a greater and more damaging inconsistency between the terms of the Bill and the associated parts of the code of practice. If the test is to be reasonable belief, it needs to be stated in the law. We are offered a code of practice now amended so that paragraph 6.4 provides that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

A code of practice is not the same as the law and “it is expected” is not even the language of legal obligation; it is the language of a dress code.

This is not just playing with words. On the basis of our first debate, it seems to be common ground that criminal responsibility for incorrect authorisations is dependent, at least in part, on a court having found the authorisation to be a nullity, presumably because the necessity or proportionality criteria were not satisfied. If the legal standard set out in the Act is one of “reasonable” belief, the court will scrutinise whether the officer’s belief was reasonable. If that word is not in the Act, a court will be invited to proceed on the basis of a test of subjective belief or, at most, the relatively undemanding test or public law rationality.

These apparently inconsequential amendments go to the issue of immunity, reflected in my Amendment 21 and in the amendments and speeches of many other noble Lords. That issue is at the heart of the Bill. I hope the Minister will accept Amendments 6 and 36, because she appears to agree with their substance, but if the noble Baroness, Lady Hamwee, presses them to a vote she will have my support.

[Lord Thomas of Cwmgiedd (CB) [V]]

I can add very little to what has been so ably said in support of the amendment, to which I put my name. I support what is a very small change to the Bill because it is important that we hold the services, particularly the officers who will give these authorisations without any prior approval, to a very high standard. If they do not have high standards and things go wrong, the damage to the service concerned will be very serious.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

The noble Lord, Lord Hodgson of Astley Abbots, was right to remind us that the Bill has extraterritorial effect and of the abuses of the recent past, not just in relation to undercover policing in the UK but to the horrors of the so-called war on terror. It is not just the noble Lord, Lord Paddick, who brings so much to these debates. I hope noble Lords will all agree that the noble Lord, Lord Cormack, spoke with particular wisdom and balance. I shall stop there and look forward to, no doubt, further wisdom from the noble and learned Lord, Lord Thomas of Cwmgiedd.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I shall speak briefly as my noble friend Lord Anderson of Ipswich has almost precisely expressed the views that I share.

I support the more specific amendments, particularly the first paragraph of the amendment in the name of the noble Lord, Lord Cormack, and spoken to by the noble Baroness, Lady D’Souza. I do not address the under-18 issue because that is a separate and difficult point. What we are concerned with is the question of serious crimes such as murder, sexual offending and serious violence. This point only arises or becomes of any importance if there is no pre-authorisation provision. I considered each of the arguments that have been outlined as to why this is unnecessary, first, as regards human rights. I must say, in respect of the amendment in the name of the noble Baroness, Lady Hamwee, that to frame something in terms of the Human Rights Act in this area is fraught with difficulty and uncertainty. Framing it in terms that ordinary people can understand and follow is difficult.

My noble friend Lord Anderson dealt with the testing argument and I need say nothing more about that. Perhaps the Minister can assure us regarding what the noble Baroness, Lady Chakrabarti, has just said and put an assurance into the Bill.

I want to deal with one further matter: the position of the IPC. Of course it can be said that if a serious crime of the kind we are contemplating were ever to be committed, it would immediately come to light by a post-occurrence investigation by the IPC. However, I cannot imagine anything more damaging to the security services, the police or any other body than for them to be put in such a position. It can never be necessary or proportionate to murder or torture, and it can never be necessary to commit rape. It would bring enormous confidence to everyone in the security services, for which I have the greatest admiration, as do many noble Lords who have spoken, if it were known that there are certain things that those bodies can never be authorised to do. I cannot understand why the Government are so reluctant to concede on that.

There may of course be matters that I or Members of the House do not know about, which is why it becomes important to consider the matter that I raised on Tuesday—namely, asking for a report from a trusted body or individual or to a Select Committee where the evidence justifying such a course that the Government appear to want to take could be explained.