Police, Crime, Sentencing and Courts Bill

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

Report (2nd Day)

15:51

Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee and 7th Report from the Constitution Committee

Clause 12: Preventing and reducing serious violence

Amendment 15

Moved by

[Baroness Williams of Trafford]

15: Clause 12, page 13, line 12, after “includes” insert “, in particular—
(i) domestic abuse within the meaning of the Domestic Abuse Act 2021 (see section 1 of that Act),(ii) sexual offences,”Member’s explanatory statement
This amendment clarifies that “violence” for the purposes of Chapter 1 of Part 2 includes domestic abuse and sexual offences.

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

My Lords, as I set out in Committee, the Government are absolutely committed to tackling violence against women and girls. In July this year, we published a cross-government Tackling Violence Against Women and Girls strategy, which set out a range of actions to help ensure that more perpetrators are brought to justice and face the full force of the law, that we improve support to victims and survivors, and, ultimately, that we work to prevent these crimes. Our complementary domestic abuse strategy will be published early next year. However, there is always scope to do more. In Committee, I undertook to consider further an amendment tabled by my noble friend Lady Bertin, which sought to expressly provide in the Bill that “violence” for the purposes of the serious violence duty includes domestic abuse, domestic homicide and sexual violence.

I reiterate that the draft statutory guidance for the serious violence duty already makes it clear that specified authorities are able to take into account any form of serious violence that is of particular concern in a local area in their strategies. The guidance specifies that this could include, for example, domestic violence, alcohol-related violence, sexual exploitation, modern slavery or gender-based violence. We have been clear throughout that we believe that specified authorities are best placed to determine what the priorities should be for their area based on the local evidence. However, we agree that there is benefit to making it absolutely clear in the Bill that domestic abuse and sexual offences, perpetrated against adults or children, are included within the meaning of “violence” for the purposes of the serious violence duty. These government amendments do just that. To ensure that clarity, the amendments include definitions of “domestic abuse”, importing that contained in Section 1 of the Domestic Abuse Act 2021, and of “sexual offences”, utilising the list in Schedule 3 to the Sexual Offences Act 2003, subject to certain appropriate modifications.

I commend my noble friend and Nicole Jacobs, the domestic abuse commissioner, for their campaigning on this issue. These amendments are a tribute to their work and I commend them to the House.

[Baroness Bertin (Con)]

My Lords, I am delighted to welcome this group of government amendments. Making the change to explicitly recognise that domestic abuse and sexual offences are included in the Bill’s definition of violence really matters. It sends the signal loud and clear that these destructive and damaging crimes cannot just be swept under the carpet, ignored or tolerated, and that not tackling them is no longer an option.

The omission in the original legislation risked undermining very real progress and momentum in our fight against these pervasive offences, and the Government deserve real credit for recognising that and making this change. I thank again my noble friend the Minister, who does a huge amount on the Floor of this House but also an awful lot behind the scenes. These amendments may seem very easy to get over the line but they are not, and I know that she did a huge amount behind the scenes to ensure that that happened. I also thank the Home Secretary, because I know that she gets this and that she cares. The continued political leadership in this area from both of them is greatly needed if we are to continue making this kind of progress, so I thank them for that. I echo what my noble friend the Minister said about the domestic abuse commissioner and her dedicated team. If there was a blueprint of how to put together a brilliant team that supports so many important changes that have to be made, hers is that blueprint, and that team deserves huge credit today.

If done properly, this change will make a fundamental difference to how we tackle these crimes; putting prevention front and centre is the only way in which we can hope to be making different speeches in 10 years’ time. These amendments may be simple on the face of it, but the reality on the ground is very complex, and it is vital that the accompanying guidance gives local authorities the best chance of success.

On the guidance more broadly, I want to make a couple of points. I hope that the Home Office will continue to work with the domestic abuse commissioner’s office, as well as sector specialists and violence reduction units, which are already making these changes on violence against women and girls, domestic abuse and sexual offences—notably, in Nottingham and London—to make sure that the detail of best practice is properly communicated and effectively rolled out. One concern that I still have is that the guidance still refers local authorities back to the serious violence strategy, although the strategy still makes no reference to domestic abuse or sexual offences. Therefore, the guidance should be beefed up to help that omission.

The monitoring of the duty will also be vital. I would welcome close scrutiny from the Home Office to understand why any areas did not include these crime types, when we know how prolific they are nationally. I would also welcome greater involvement from the HMICFRS in responding to the new duty and how it is working in relation to these offences.

Briefly and finally, I want to talk about stalking. I absolutely accept the omission of stalking in this amendment, although reluctantly. However, does my noble friend the Minister agree that much more urgency and joined-up thinking needs to be applied to this crime? There is still a huge gap in understanding across the entire criminal justice system, from policing to the judiciary. The ratio of victims to convictions is absolutely wrong. We know that approximately half of stalking-related cases are perpetrated by a current or ex-partner. Could she clarify and confirm that ex-intimate partner-related stalking, such as domestic abuse-related stalking, is implicitly understood and intended to be included in the duty?

Given that the other half of stalking cases are stranger cases, I very much believe that the spirit of this duty should extend to all forms of stalking. It will therefore be essential to ensure that specific and robust instruction on the nature of stalking and the types of interventions needed to tackle it are included in the guidance. In particular, I would welcome an explicit reference to MASIP, a multi-agency approach to managing the risk and reducing reoffending by stalking perpetrators. Not enough local authorities or police forces use that approach, but it does work—I have witnessed it myself in the Met team. It helps front-line officers to understand what they are dealing with. There are experts there, including potentially mental health experts, and it is an important new approach to this crime.

All in all, today is very welcome, and I hope that it gives victims hope and reassures them that their voices are beginning to be heard.

16:00

[Baroness Jolly (LD)]

My Lords, I join others in thanking the Minister for bringing forward these amendments. I congratulate the noble Baroness, Lady Bertin, on securing this important concession to the Bill.

Last Wednesday, we had a really well-argued and informed debate. It is worth taking a couple of minutes to look at the recent history of this issue. Going back to coalition times, when Theresa May was Home Secretary, she had weekly meetings around a table with women from every department. She challenged them on what they were doing in the department and then asked them the following week what had happened, so she really kept the pot boiling. As a result, the coalition Government published the first call to end violence against women and girls just after they were formed in 2010. Activity carries on: my honourable friend Wera Hobhouse, through a Private Member’s Bill, introduced a new offence for upskirting. However, offences for stalking, controlling or coercive behaviour, and so-called revenge porn should also follow.

While I regret that my noble friend Lady Brinton was unable to persuade the Minister to include stalking in the definition of serious violence, we welcome the government amendment before us today on violence, particularly sexual violence. Violence is not acceptable in any circumstances, but violence by men towards women and girls is completely unacceptable. As many noble Lords said during debates on this issue in Committee, it is vital to have a multi-agency public health approach to prevent domestic abuse and sexual violence.

Including domestic abuse and sexual violence in the definition of serious violence will ensure that local areas properly take account of this within their strategies and work in a joined-up way to address and prevent these crimes. The setting up of local integrated care systems as a result of the Health and Care Bill, which is before your Lordships’ House, might be a useful first provider of support for families affected. In the Minister’s response, will she please outline the initiatives that the Government will implement, not only to support the families involved, but also the perpetrators of the crimes?

[Lord Rosser (Lab)]

My Lords, as the Minister said, government Amendment 15 clarifies that violence for the purposes of Part 2, Chapter 1 includes domestic abuse and sexual offences. We very much welcome these government amendments, the object of which has been a key issue for these Benches. It is a hugely important change to the Bill and an example of what can be achieved by this House, and indeed by Parliament as a whole, through proper scrutiny.

I too pay tribute to the noble Baroness, Lady Bertin, and to Nicole Jacobs, the domestic abuse commissioner, for the key roles that they played on this issue. I also pay tribute to my honourable friends Sarah Jones MP and Jess Phillips MP who began a campaign for this change when the Bill arrived in the Commons in March. This has been a cross-party, cross-House effort to ensure that these extremely serious, high-harm types of violence are recognised as such and are prioritised.

It has been mentioned that, although these amendments add domestic abuse and sexual violence to the definition, they do not specifically include stalking. Stalking that involves domestic abuse and sexual offences would be covered by the terms of these government amendments, which provide for the inclusion of violence against women and girls in the definition of serious violence. Of course, that does not include all cases of stalking. I hope and expect that we will hear from the Minister at some stage during the remaining stages of this Bill what the Government are doing to change the way we respond to stalking across the board.

[Baroness Williams of Trafford (Con)]

My Lords, I thank my noble friend Lady Bertin for her comments. I share entirely my noble friend’s commitment to ensuring that best practice in this area is properly communicated to duty holders. That is what will make it effective. I look forward to working with the domestic abuse commissioner’s office and wider stakeholders to develop the statutory guidance which will be subject to public consultation following Royal Assent. We intend to develop options and include detail on monitoring progress in our statutory guidance. In addition, specified authorities will be requested to keep their strategy under review. PCCs will also have a discretionary power to monitor performance, and routine inspection programmes undertaken by individual inspectorates in future may also consider the organisational response to local serious violence issues.

As my noble friend and others will know, the statutory guidance under Clause 18 already includes references to sexual offences, domestic abuse and gender-based violence. In updating the guidance ahead of the consultation, we will explore whether we should revise it to make it clear to specified authorities that they should consider violence against women and girls, including domestic abuse and sexual offences, in determining what amounts to serious violence in their areas.

In terms of stalking, we are very clear that the reference to domestic abuse to be added by the government amendments will encompass stalking in so far as it takes place in a domestic abuse context. Noble Lords will know that while many stalking offences take place in a domestic abuse context or involve violent behaviour, it is not the case in all instances. We have not expressly set these out in the Bill because we are seeking to avoid an exhaustive list of crime types, partly to allow local areas to take account of new and emerging forms of serious violence as they develop and are identified, and partly to recognise the geographical difference in the prevalence of these types of serious violent crimes.

As I have said, the draft statutory guidance for the duty sets out that there is flexibility for local areas to take account of their evidence-based strategic needs assessment and include in their strategy actions which focus on other related types of serious violence, including gender-based violence, which includes all forms of stalking as well as many other forms of violence against women and girls. We can look to make that clearer in the next iteration of the guidance, which we will be consulting on, as I have said. This is a view shared by the domestic abuse commissioner, and I put on record—following my noble friend’s thanks—my thanks to her for her continued engagement in this area.

[Lord Hayward (Con)]

My noble friend referred to sexual violence against women and girls. Can I clarify that this legislation actually covers all aspects of sexual abuse and stalking, not just that against women and girls?

[Baroness Williams of Trafford (Con)]

I am glad my noble friend has mentioned that. We have said right from the outset that it covers both sexes, but this violence is predominantly meted out to women and girls; that is why noble Lords sometimes question this. But, of course, anyone who is a victim of domestic abuse or serious violence is captured by this.

The noble Baroness, Lady Jolly, asked me about the initiatives we have in place. We have tripled the funding we provide to the National Stalking Helpline, run by the Suzy Lamplugh Trust, this year. The additional funding is enabling the trust to answer more calls and expand its advocacy service. I set out in Committee the other actions we are taking to tackle stalking, and I refer the noble Baroness to those comments. Our forthcoming domestic abuse strategy will include stalking as well.

On that note, I hope that I have answered my noble friend’s questions and those of other noble Lords. I conclude by thanking my noble friend and the commissioner, and I beg to move.

Amendment 15 agreed.

Amendments 16 and 17

Moved by

[Baroness Williams of Trafford]

16: Clause 12, page 13, line 14, at end insert—
“(3A) In subsection (3)(a)(ii), “sexual offence” means an offence under the law of England and Wales which is for the time being specified in Schedule 3 to the Sexual Offences Act 2003, other than the offence specified in paragraph 14 of that Schedule (fraudulent evasion of excise duty).(3B) In determining for the purposes of subsection (3A) whether an offence is specified in Schedule 3 to the Sexual Offences Act 2003, any limitation in that Schedule referring to the circumstances of a particular case (including the sentence imposed) is to be disregarded.”Member’s explanatory statement
This amendment defines “sexual offence” for the purposes of the amendment in the name of Baroness Williams of Trafford at page 13, line 12 by reference to most of the England and Wales offences for the time being specified in Schedule 3 to the Sexual Offences Act 2003.

17: Clause 12, page 13, line 18, leave out “any offence” and insert “the offence (if any)”
Member’s explanatory statement
This amendment modifies the reference in Clause 12(4) to any offence involved in violence to which Chapter 1 of Part 2 applies so that it is clear that such violence may not involve an offence.

Amendments 16 and 17 agreed.

Clause 14: Involvement of educational, prison and youth custody authorities

Amendment 18 not moved.

Clause 15: Disclosure of information

Amendments 19 to 21

Moved by

[Baroness Williams of Trafford]

19: Clause 15, page 15, line 41, leave out “a disclosure of information that”
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 15, line 41, page 15, line 42 and page 15, line 45 have the effect that Clause 15 does not authorise the disclosure of patient information or the disclosure of personal information by a health or social care authority.

20: Clause 15, page 15, line 41, at end insert—
“(za) the disclosure of patient information,(zb) the disclosure of personal information by a specified authority which is a health or social care authority,”Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.

21: Clause 15, page 15, line 42, at beginning insert “a disclosure of information that”
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.

Amendments 19 to 21 agreed.

Amendment 22 not moved.

Amendment 23

Moved by

[Baroness Williams of Trafford]

23: Clause 15, page 15, line 45, at beginning insert “a disclosure of information that”
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.

Amendment 23 agreed.

Amendments 24 and 25 not moved.

Clause 16: Supply of information to local policing bodies

Amendments 26 to 29

Moved by

[Baroness Williams of Trafford]

26: Clause 16, page 16, line 22, after “that” insert “is held by the person to whom the request is made and that”
Member’s explanatory statement
This amendment limits the information that may be requested by a local policing body under Clause 16 to information held by the person to whom the request is made.

27: Clause 16, page 16, line 35, leave out “a disclosure of information that”
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 16, line 35, page 16, line 36 and page 16, line 39 have the effect that Clause 16 does not require the disclosure of patient information or the disclosure of personal information by a health or social care authority.

28: Clause 16, page 16, line 35, at end insert—
“(za) the disclosure of patient information,(zb) the disclosure of personal information by a specified authority which is a health or social care authority,”Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.

29: Clause 16, page 16, line 36, at beginning insert “a disclosure of information that”
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.

Amendments 26 to 29 agreed.

Amendment 30 not moved.

Amendment 31

Moved by

[Baroness Williams of Trafford]

31: Clause 16, page 16, line 39, at beginning insert “a disclosure of information that”
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.

Amendment 31 agreed.

Amendment 32 not moved.

Amendments 33 and 34 not moved.

Clause 17: Directions

Amendment 35

Moved by

[Lord Paddick]

35: Clause 17, leave out Clause 17
Member’s explanatory statement
This removes the provisions enabling the Secretary of State to give directions to require compliance with the serious violence duty.

[Lord Paddick (LD)]

My Lords, I indicated on Wednesday that I would divide the House on leaving out Clause 17, so I wish to test the opinion of the House.

16:12

Division 1

Ayes: 83

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Liberal Democrat: 55
Crossbench: 15
Labour: 6
Independent: 3
Green Party: 2
Bishops: 2

Noes: 183

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Conservative: 155
Crossbench: 17
Democratic Unionist Party: 5
Independent: 4
Ulster Unionist Party: 2

16:27

Clause 18: Guidance

Amendment 36

Moved by

[Baroness Williams of Trafford]

36: Clause 18, page 17, line 37, at end insert—
“(4) After issuing guidance under this section, the Secretary of State must lay a copy of the guidance before Parliament.”Member’s explanatory statement
This amendment requires guidance from the Secretary of State relating to Chapter 1 of Part 2 to be laid before Parliament.

Amendment 36 agreed.

Clause 19: Amendments to the Crime and Disorder Act 1998

Amendments 37 to 39

Moved by

[Baroness Williams of Trafford]

37: Clause 19, page 19, line 7, after “includes” insert “, in particular—
(i) domestic abuse within the meaning of the Domestic Abuse Act 2021 (see section 1 of that Act),(ii) sexual offences,”Member’s explanatory statement
This amendment clarifies that “violence” for the purposes of Chapter 1 of Part 1 of the Crime and Disorder Act 1998 includes domestic abuse and sexual offences.

38: Clause 19, page 19, line 12, at end insert—
“(1ZA) In the definition of “violence” in subsection (1) “sexual offence” means an offence under the law of England and Wales which is for the time being specified in Schedule 3 to the Sexual Offences Act 2003, other than the offence specified in paragraph 14 of that Schedule (fraudulent evasion of excise duty).(1ZB) In determining for the purposes of subsection (1ZA) whether an offence is specified in Schedule 3 to the Sexual Offences Act 2003, any limitation in that Schedule referring to the circumstances of a particular case (including the sentence imposed) is to be disregarded.”Member’s explanatory statement
This amendment defines “sexual offence” for the purposes of the amendment in the name of Baroness Williams of Trafford at page 19, line 7 by reference to most of the England and Wales offences for the time being specified in Schedule 3 to the Sexual Offences Act 2003.

39: Clause 19, page 19, line 18, leave out “any offence” and insert “the offence (if any)”
Member’s explanatory statement
This amendment modifies the reference in section 18(1B) of the Crime and Disorder Act 1998 to any offence involved in violence to which Chapter 1 of Part 1 of that Act applies so that it is clear that such violence may not involve an offence.

Amendments 37 to 39 agreed.

Clause 22: Index of defined expressions

Amendments 40 and 41

Moved by

[Baroness Williams of Trafford]

40: Page 20, line 32, at end insert—

health or social care authority

section 9(9)”

Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 12, line 11.

41: Page 20, line 33, at end insert—

“patient information	section 9(9)
personal information	section 9(9)”

Member’s explanatory statement This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 12, line 11.

Amendments 40 and 41 agreed.

Clause 31: Guidance

Amendment 42

Moved by

[Baroness Williams of Trafford]

42: Clause 31, page 27, line 7, at end insert—
“(3) After issuing guidance under this section, the Secretary of State must lay a copy of the guidance before Parliament.”Member’s explanatory statement
This amendment requires guidance from the Secretary of State relating to Chapter 2 of Part 2 to be laid before Parliament.

Amendment 42 agreed.

Amendment 42A

Moved by

[Lord Ponsonby of Shulbrede]

42A: After Clause 35, insert the following new Clause—
“Domestic homicide reviews
(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.(2) For subsection (2) substitute—“(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.”(3) After subsection (3) insert—“(3ZA) The Secretary of State must by regulations set out—(a) the type of data relating to domestic homicide reviews which must be recorded, including—(i) the number of domestic homicide reviews taking place across England and Wales annually; and(ii) the time taken to complete each individual domestic homicide review;(b) that the data must be recorded centrally in a Home Office database; and(c) that the data must be published annually.””

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the new clause introduced by Amendment 42A seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in the circumstances outlined in Section 9 of the Act. The new clause also aims to improve data collection methodologies around domestic homicide reviews.

My noble and learned friend Lord Falconer of Thoroton moved this amendment in Committee. The purpose of retabling it is to get a response from the Government. A letter was promised but none has been received as far as I am aware.

In preparing for this short debate, I reread the 2016 Home Office report on domestic homicide reviews. As the Minister will be aware, some strong themes emerged from that report, including the importance of record-keeping by the police and a multi-agency approach. Another particular theme was the need for GPs to keep records of people who reported domestic abuse.

In moving his amendment in Committee, my and learned noble friend asked three questions that I shall briefly repeat. First, it is difficult to see in Section 9 of the 2004 Act whether there is an obligation in every case for there to be a domestic homicide review. We think that there should be. Can the Minister confirm the Government's position on this question? Will she consider legislating to ensure that there is a review in every case?

16:30

Secondly, my noble and learned friend asked about centralising the recording of the review’s findings. Clearly, this would be helpful in learning lessons from the reviews, but can the Minister talk about the centralising of the domestic homicide review findings? The third question was about the domestic homicide sentencing review, which I understand was commissioned on 9 September this year. I understand that Clare Wade QC has been instructed on this matter. What are the terms of reference of this review? When is it expected to report? What do the Government expect will be done with its recommendations?

We believe that the 2016 report was a good one and should be built on. I look forward to the Minister’s response to the questions my noble and learned friend raised, which I have repeated in moving this amendment.

[Lord Paddick (LD)]

My Lords, if domestic abuse is now included in the serious violence duty—and there is no more serious violence than murder—can the Minister say how the Government can resist this amendment, which we support?

[Lord Carlile of Berriew (CB)]

My Lords, if I may just say a few words in support of this amendment, which was moved with such clarity by the noble Lord, Lord Ponsonby, two points seem to me to arise. The first is that if the reviews are held in a centralised way, they will be more efficient. There will be less of a postcode lottery when it comes to the review taking place. Secondly, and most importantly, if social services, medical services, the police and others know that there will be a review in every case in which there is murder as a result of a domestic situation, they will take greater care. We know that that has not, unfortunately, always been the case, whatever their good intentions.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for outlining this amendment with such clarity. Domestic homicide is a horrendous crime and I reassure the House that tackling this is a key priority for the Government. Part of the solution is ensuring that domestic homicide reviews take place at every opportunity. They offer an opportunity, as the noble Lord said, to learn lessons to prevent the same mistakes occurring again. It is important that every domestic homicide is considered for a domestic homicide review so that, as he said, lessons can be learned and further deaths prevented.

I reassure the noble Lord that domestic homicide reviews are conducted in the great majority of cases, but there may be instances where one is not appropriate or necessary. The Government are clear that domestic homicide reviews should be considered at every opportunity, and the 2004 Act already makes provision for the Home Secretary to direct that a domestic homicide review takes place where required.

When a community safety partnership decides not to conduct a review, the decision is closely scrutinised and escalated to the Home Secretary to enable her to use her powers to direct a domestic homicide review, if appropriate. This involves a review of the decision by the independent quality assurance panel, whose views form the basis of the advice provided to the Secretary of State. The review of all decisions not to conduct a review is a new process implemented earlier this year. Since implementing it, the Secretary of State has directed four homicide reviews. I hope the noble Lord sees this as an example of how seriously this Government take these reviews.

On data collection, I reiterate to noble Lords that the Home Office has in fact committed to creating an online central repository of domestic homicide reviews to improve accessibility, exactly for the reason the noble Lords, Lord Carlile and Lord Ponsonby, pointed out. At present, all reports are published on individual local authority or community safety partnership websites, but often only for a limited period. Creating the central repository will mean that all completed reviews are readily available, including to support the monitoring of the implementation of any recommendations. This is expected to go live next year. I understand that the terms of reference of the review have been published.

Regarding the letter the noble Lord, Lord Ponsonby, cited at the beginning of his remarks, I will do some investigating and come back to him, because I really do not know what has happened to it. That is unfortunate, but I will chase it up and ensure he has a response. With that, I hope he will be happy to withdraw his amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will of course withdraw the amendment, which was essentially intended to nudge the noble Baroness. I thought the noble Lord, Lord Carlile, made a very reasonable point when he highlighted the postcode lottery if there is not a review of all cases. He also said—I thought very persuasively—that services will take greater care if they know there will be a review. Perhaps I could ask for an additional, interesting piece of information to be included in the letter: how many domestic homicides have there been in a recent period where there has not been a review? I beg leave to withdraw my amendment.

Amendment 42A withdrawn.

Clause 36: Extraction of information from electronic devices: investigations of crime etc

Amendment 43

Moved by

[Baroness Chakrabarti]

43: Clause 36, page 29, line 32, at end insert—
“(4A) The user may choose to be in the presence of the authorised person during the extraction unless either the user or the authorised person deems it impracticable or inappropriate, in which case an explanation must be set out in writing in the agreement referred to in subsection (1).” Member’s explanatory statement
This amendment, along with another amendment to Clause 36, page 29, line 32, in the name of Baroness Chakrabarti, would permit the user to choose whether to be present during the digital extraction, unless deemed impracticable or inappropriate; and create a statutory time limit for the authorised person’s retention of the device in the event that it is necessary to take possession of it. If the time frame elapsed without extraction taking place, a new agreement would need to be sought.

[Baroness Chakrabarti (Lab)]

My Lords, this group of amendments and the related clauses address the phenomenon that those unfortunate enough to have experienced it call digital strip-searching—the practice of demanding a complainant’s device, usually a mobile phone, in the police station in return for agreeing to pursue a criminal investigation, usually into an alleged sex offence such as rape.

I begin by thanking the Minister for taking the problem seriously and understanding the need to address it via statute. I am afraid that I remember Ministers standing at that Dispatch Box even a couple of years ago, denying that the practice was problematic, widespread or disproportionate and even arguing against the need for primary legislation—so-called consent, in exchange for a vindication of one’s fundamental right to an investigation into such a serious crime, being sufficient. Mansplaining to rape survivors is bad enough; “Baronsplaining”, if I may call it that, was a new level of insensitivity.

I will not insult the empathy of your Lordships’ House by reiterating why an extraction of data from a personal smartphone or computer is one of the most intimate searches in the modern era and can leave the complainant feeling more like a suspect, even if the extraction is swift and on the spot and takes no more data than is strictly necessary to the particular investigation. That successive Governments, DPPs and police leaders have failed to address this problem must have played at least some part in our appalling attrition rates for the prosecution of sex offences.

While this part of the Bill is a much-needed attempted correction, we would not need to amend it if survivor and human rights groups had been properly consulted. I declare an interest as a council member of the all-party group, Justice. Amendments 43 to 46, 48 and 51 in my name are advanced by a broad coalition of civil society organisations, led by Big Brother Watch, Amnesty International, the Centre for Women’s Justice and Rape Crisis. They are currently unconvinced that the Bill, either as it stands or with proposed government amendments, does enough to protect complainants and rebuild trust in the investigation and prosecution of sex offences.

Amendments 43 and 44 allow the complainant to be present during the extraction of data, unless that is impracticable or inappropriate, and create a time limit for any police retention of the device. Amendment 45 would make the threshold for extraction the tighter and objective ECHR test of strict necessity, and Amendment 46 would further tighten the criteria. Amendment 48 would allow a DCI review of the strict necessity of any extraction agreement, and Amendment 51 requires a fuller explanation of the person’s rights before they agree. I thank the noble Lord, Lord Paddick. Crucially, his Amendment 50 ensures that the explanation is given orally, as well as in writing. My noble friend Lord Rosser’s Amendment 52A makes provision for data in the hands of a third party.

Government Amendment 52 in the Minister’s name creates a proportionality but not a strict necessity test for extraction where the authorised person is of the subjective view that there is a risk of obtaining confidential information—of course there is. Amendments 53 to 56 replace the need for regulations with the laying of statutory guidance.

The government provision still contains fewer statutory safeguards than sought by the victims’ rights coalition, so I urge the Minister to move further in its direction by accepting its amendments, refining or tweaking them at Third Reading or, at the very least—and before the preparation of any statutory guidance under the new legislation—agreeing to meet with a small group of those representing voices that have been ignored for too long. I beg to move.

[Lord Beith (LD)]

My Lords, I am ready to support the commitment of the noble Baroness, Lady Chakrabarti, in bringing forward this amendment, and appreciative of the Minister’s moves as represented in the government amendments. I simply want to clarify some points, because there are still concerns in this area. Some of the concerns arise from the context.

Police abuse of procedures of various kinds has been apparent, even to the extent of affecting murder victims. It cannot be denied that within police forces there are a few people who will do these things. That makes it that much more difficult to have complete confidence in the voluntary arrangements that these amendments deal with. I ask the questions: how voluntary, how confidential, and how about disclosure?

How voluntary? When someone is asked to hand over their phone, the police officer usually says, “It’s up to you but unless you hand over your phone to me, I can’t see the Crown Prosecution Service having enough material to take this case forward, and I think that would probably be the end of your attempt to get justice”. I am paraphrasing, but that might effectively be what he says. That means the safeguards are important, and I welcome them, but will they be sufficient?

How confidential? Government Amendment 49 says “confidential” has the meaning it has in Amendment 47, but Amendment 47 does not actually define “confidential”. Clearly, on somebody’s phone there is a great range of confidentiality: from what might be a conversation about an intimate relationship through to a bank account, a family row or something else that someone regards as in need of safeguarding and treating as confidential. We need to be a little clearer about that.

What about disclosure? Can the Minister say a little about to what extent, if any, the requirement of disclosing material to the defence is affected by these provisions? That puts a further pressure, of course, on the victim of the crime, but it is an essential part of our justice system that when evidence is found that would assist the defence, it is the duty of the prosecution to hand it over. These are the points that concern me.

16:45

[Lord Carlile of Berriew (CB)]

My Lords, the noble Lord, Lord Beith, with his usual remarkable acuity, has put his finger on a very important point, which is the question of disclosure. It is clear that police forces have tended to use disclosure as the reason for obtaining much of the material that has been unnecessarily obtained, so let us be clear what the duty of disclosure is. There is a duty to disclose to the defence material that undermines the prosecution case or materially assists the defence case, but that cannot be a reason for oppressive conduct against a complainant.

I absolutely commend the amendments tabled by the Government—they are extremely helpful in taking this issue forward—but I also support the amendments tabled by the noble Baroness, Lady Chakrabarti, which would strengthen the forward-looking view of the amendments. It is a real risk that women, and indeed young men, who are the victims of rape will not pursue the case because they feel oppressed, embarrassed or threatened by unnecessary requirements framed under the heading “disclosure”.

We have a situation in which the number of rape cases prosecuted by the Crown Prosecution Service, and the number of alleged rape cases reported by the police to the CPS, has diminished dramatically over the years. It is no accident; the CPS does not like to run the risk of losing cases if it can avoid it. There are certain types of cases where there might be an inherently higher risk of a prosecution failing, but they should still be prosecuted at a significant level because of the effect the complaints behind those cases have on the way society operates—the way men and women, and men and men, have their relationships, which are so crucial to a stable society. I believe that the CPS has been completely wrong and unwise to abandon the procedures put in place in previous years. I regret that it has failed to recognise that in as clear a way as it should.

I hope very much that the Government will look at all these amendments together and accept that improvements can be made to achieve an end that we all share. The way our children and, for some of us, our grandchildren now use their mobile phones is quite different from anything we would have imagined. They share intimacies on their mobile phones that would have been shared only orally one generation ago and not at all two generations ago. This is a change in our society. We have to recognise that we must respect some part of the privacy of such material.

My final point is that there is a great responsibility particularly on the police. I absolutely recognise that there are expert police officers dealing with RASSO cases now, but there is an absolute responsibility on police officers, including in rural areas where there is a significant shortage of training for specialist police officers, to explain to complainants what is going on before they ask for the material and before those individuals have to make a decision as to how much of their intimate material to reveal to the police, and potentially to the court. One of the pieces of advice that should be given to them—I am afraid I have to confess that I have done this—is that some quite extensive cross-examination sometimes takes place in courts that is not expected by victims of rape. My support is, I hope, intensely practical and intended to be constructive.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I very much hope the Minister can listen to this, because it is obvious that there is a general concern. I will keep my remarks brief because I agree with everything that has been said so far, particularly on the Hobson’s choice that victims are often given: either they hand their telephone over voluntarily or they have it confiscated. That really is an abuse of procedure.

I would like the Minister to answer a question for me: if there is that threat inherent in what the police tell a victim, would any evidence gathered under Clause 36 be inadmissible in court? I rather think it should be. We should remember that government Ministers have been very reluctant to have their electronic devices pored over by the police, and have dropped them or broken them or things like that. This is an intrusive and invasive procedure. It should be done as best as it can be, and at the moment it really is not.

[Baroness Hamwee (LD)]

My Lords, regarding the point made by the noble Lord, Lord Carlile, about explanations, I absolutely support him, as do two of the amendments in this group—Amendment 43, in which “explanation” is used, and Amendment 50, concerning giving notice “orally”. I am sure that noble Lords will understand the significance of that. Many people will take in something which is explained to them face to face and orally in a way which they might not if given a rather formal document to read.

I ask the Minister about the extent of what is meant by “confidential information”. There is a reference to what will become Section 42. As I read it, it is not confidential in the normal meaning of the word, but refers only to journalistic material, legally privileged or business material, as referred to when one follows through the cross-references, and not to personal material. Can she confirm that, because it very much affects what these clauses do? Can she also help the House with the relevance in her Amendment 47, in the proposed new subsection (7C), of the amount of confidential information likely to be stored on the device? Amount is not the same as significance.

[The Lord Bishop of Leeds]

My Lords, especially following the speech by the noble Lord, Lord Carlile, I am conscious that I have no conception of what the world looks like through the eyes of my grandchildren. When I was their age there were three channels on television, which began at 4.40 in the afternoon with “Jackanory”. The world has changed considerably and, although I have tried to keep up with technology, professionally and personally, I am aware that I cannot see the world into which we are moving. We are not ahead of the game.

With the greatest respect, I look around this House and conclude that we are not the generation to be looking ahead and anticipating the world of communication, particularly through phones and so on. I am told by industry experts that what we have now is probably a couple of generations back from what we will have. I have lost track of Elon Musk and all the stuff going on in relation to space travel but, in framing such legislation, are we consulting the younger generations, who are well ahead of the rest of us on technology and communication potential? It is a simple question. I would not want to hand my phone over now, but I am sure that my grandchildren will have stuff on their phones which I would not even begin to understand. We need to be very careful.

[Lord Paddick (LD)]

My Lords, we support all the amendments in this group in the name of the noble Baroness, Lady Chakrabarti, and if I had been on the ball I would have signed them. I also have Amendment 50 in this group.

The user of the device from which data is being extracted should be able to see what is happening whenever that is practical, and be reassured that only relevant data is being downloaded, as suggested in Amendment 43. As has just been discussed, many people’s lives are on their phone and their lives are run by what is on their phone, so to be separated from it can have major consequences. That is why Amendment 44 suggests that the device should be taken only if absolutely necessary; an explanation given as to why it must be taken, if it is; and that it is returned as soon as practical, and in any event, within 30 days.

Amendment 45, adding “strictly” to “necessary”, narrows the circumstances in which data can be extracted. Digital downloads should not be used if there are other means of obtaining the information—whether “reasonably practicable” or not. Anything that deters survivors from coming forward or progressing their complaint should be avoided at all costs. “Not reasonably practical” sounds as if digital downloading could be used if it were easier than the alternative in Amendment 46. Amendment 48 provides for an independent review of the need for digital downloading, carried out by a senior police officer at the request of the user, who may be concerned that it is not strictly necessary and proportionate. Amendment 51 requires that an explanation is provided as to why it is necessary, how long it will take and the availability of a review.

As I pointed out in Committee, the Bill requires the authorised person to give notice only in writing to the user as to what, why and how the information will be extracted, the user’s right to refuse and the consequences of such a refusal. This is only to the extent that the investigation or inquiry will not end merely because the user refuses. Will the Minister state on the record that this is different from such a refusal having no consequences? For example, the defence in a rape case—where consent is an issue—may claim that withholding such information has implications which the jury might be asked to consider.

Akin to the rights of a detained person at a police station, it is not sufficient simply to wave a piece of paper under the nose of the user, who may be unable to read or be too traumatised to take in what she is reading. As the noble Lord, Lord Carlile of Berriew, and my noble friend Lady Hamwee have said, the authorised person should explain orally to the user and enter into a conversation to test her understanding to ensure that consent is informed and voluntary.

The government amendments attempt to address the concerns of my noble friend Lord Beith about confidential information. My noble friend Lady Hamwee was right: this should include confidential journalistic material and material subject to legal privilege, which was going to be dealt with by regulations. With the government amendments in this group, we appear to be inching forward on this, but concerns remain, as my noble friend explained. We support all the amendments in this group.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all those noble Lords who have taken part on this group. The key issue which we need the Minister to take away is that there is more to be done in this area. We are grateful to her and her Bill team for their engagement with us and for the extra protections which the Government brought forward in Committee. I particularly pay tribute to the Victims’ Commissioner and her office for their leadership on these protections and the changes for victims which we need.

My noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, both raised crucial issues, particularly about the need for strict necessity and the importance of making sure that victims—who may be going through this process at a point of shock or extreme vulnerability—genuinely understand their rights.

Amendment 52A in the name of my noble friend Lord Rosser returns to the issue of material held by third parties. It applies to material such as a victim’s school report or mental health records. I am grateful to the noble Lord, Lord Anderson, and the noble Baroness, Lady Newlove, for their support on this issue in Committee.

The Government have accepted on the face of the Bill that extra protections are needed for victims where data are extracted from their phones. The next step is that the exact same protections must also apply where a victim’s privacy is being raided in any other area of their life.

These changes are being championed by the Victims’ Commissioner, with the support of the National Police Chiefs’ Council. They are vital for victims, for culture change and for the system as a whole. We need to get it right to give victims confidence, to stop unnecessary requests for information and to reduce the huge delays in investigations. I know the Minister recognises this issue. Will she commit to take it away and consult on the issue of third-party material with a view to bringing in protections?

17:00

Finally, I have to make the point that, in this Bill, the Government have recognised the need for statutory changes. Non-statutory options will not be enough on third-party material, just as they have not been enough to prevent what is known as a digital strip search, a point made by my noble friend Lady Chakrabarti. Non-legislative options, such as a data processing notice, can be ignored by police forces. There is also evidence of their being used inappropriately—for example, a victim being asked to sign an incomplete document, or police officers not having any idea that the documents exist in the first place. In this Bill, we have taken a step forward to recognising this as the serious issue it is, and I hope that the Minister will commit to take it away and look at it further, with the aim of bringing forward legislative options for third-party material in the victims Bill. The Minister can be assured that we will return to this issue in the victims Bill to ensure further progress.

I shall pick up on a few points made by noble Lords in this very interesting debate. I thought the noble Lord, Lord Carlile, in his usefully practical response to the issues raised in these amendments, made a very interesting point. Of course, there must be balance here, and there is a duty of disclosure to the police and the CPS, so that they can make an informed decision on prosecutions, if they are appropriate. I have to say that, in recent years, when we have seen the lack of disclosure to the CPS and cases collapsing, none of my friends who are magistrates was surprised at the lack of disclosure in certain very sensitive cases.

The noble Baroness, Lady Hamwee, made an interesting point—in fact, a lot of noble Lords made interesting points; I thought I had read a lot about this, and yet a number of new points were made—about the amount of information saved and stored versus the significance of the information. It is very difficult to judge the balance between quantity and quality—in fact, it is almost impossible to judge because of the sheer volume of data that is stored on people’s phones.

I thought the right reverend Prelate the Bishop of Leeds also made an interesting point about consulting young people. We are all in the same position of struggling to keep up with the advance of technology. Young people may indeed be the best people to consult, and I wonder whether the noble Baroness will do that.

The final point made in the introduction by the noble Lord, Lord Paddick, was an intriguing suggestion: that the person handing over the data should be able to see what is being downloaded. I presume he means that, as more and more of our data is stored not on our phones but on the cloud, you can actually see people accessing your data, if you give them permission, as they are taking it. This is indeed a novel suggestion—I had not thought of it—and it is true that we are all being encouraged to store more and more of our data on the cloud, rather than on devices themselves. I look forward to the noble Baroness’s response.

[Baroness Williams of Trafford (Con)]

My Lords, I agree that this has been a very thoughtful debate. I hope that, at the end of this, the noble Baroness, Lady Chakrabarti, will not find me guilty of “Baroness-splaining”. This is such an important issue. As the right reverend Prelate pointed out, for young people, their mobile phones are their life and contain things that certainly their parents should not see, nor others either.

In Committee, I gave assurance that the Government were considering very carefully the Delegated Powers and Regulatory Reform Committee recommendation to the effect that provisions regarding the extraction of confidential information from electronic devices should be set out in the Bill rather than left to regulations, as Clause 42 currently provides. In our response to the DPRRC, which we sent to the committee last week, we confirmed that we accept the recommendation. Amendments 47, 49 and 52 to 55 make the necessary changes to Chapter 3 of Part 2 of the Bill to include provisions dealing with this issue.

These amendments are designed to ensure that additional safeguards will apply where an electronic device may contain confidential information, because authorised persons will be required to go through a separate assessment of the appropriateness of using the power where there is a risk that confidential information may be held on a device. To answer the question from the noble Baroness, Lady Hamwee, confidential information for these purposes includes legally privileged, journalistic and other types of protected materials, but I think that is what she suspected.

The noble Baroness, Lady Jones of Moulsecoomb, asked whether information extracted from a mobile phone would be disclosed to the defence. These provisions do not alter disclosure rules, which will continue to apply as now.

The amendments place an obligation on authorised persons to make a risk assessment, based on information that they have available, to decide how likely it is that they will come across confidential information on the device that they wish to examine. Having done so, they must turn their mind to the potential volume of confidential information held on the device and its potential relevance to the purposes set out in Clauses 36(2) and 40(2), for which the power can be used, in order to come to a view as to whether it is proportionate to use the power. This is intended to ensure particular consideration is given to the potential handling of inherently sensitive information. This will be reinforced by best practice guidance, to be set out in the code of practice under Clause 41. Authorised persons will be required to have regard to the code in exercising the powers under this chapter. We consider that this approach provides that balance between enabling extraction to go ahead in appropriate cases and safeguarding against improper access to confidential material.

Turning to the amendments in the name of the noble Baroness, Lady Chakrabarti, the House will recall that substantial changes were made to these provisions in Committee to further strengthen the safeguards for device users. These changes have been warmly welcomed by the Victims’ Commissioner. We believe, and I think noble Lords alluded to this, that any further issues can and should be addressed through the code of practice—more on that later—which will provide authorised people with detailed guidance on the lawful use of these powers.

Amendments 43 and 44 would afford a device user the option of observing the extraction taking place, unless that is impracticable or inappropriate. I can see the appeal of that, but different authorised people will have different tools available to them to carry out extraction, and these may be held in parts of a police station or law enforcement premises where only members of staff can be present. It could also be held in third-party laboratories which are not equipped to host members of the public. We think that these restrictions will make this obligation impractical in many cases, and we do not think that an obligation to allow a device user to observe this process is workable.

Amendment 44 would also place a legal limit on the length of time that an authorised person can keep a device in their possession. Authorised persons already keep all devices for the minimum amount of time necessary, but the precise length of time is determined by a number of factors, and the officer to whom the individual gives their device gives an indication of how long this period will be. If for any reason this length of time changes, individuals are kept informed. I have highlighted in my notes that the rape review action plan makes clear our ambition to ensure that no victim is left without a phone for more than 24 hours.

Amendment 45 returns to a debate that we had in Committee about whether the necessity test in subsection (5)(c) of Clause 36 should use the language of “strict necessity”, as in the Data Protection Act, in these clauses. As I have said previously, the powers in Clauses 36 and 40 must be read alongside existing obligations under the Data Protection Act or, indeed, the UK GDPR. Looking at the requirements in more detail, Part 3 of the DPA 2018 contains specific provisions relating to processing personal data for a law enforcement purpose. The “law enforcement purposes” are defined, in Section 31 of that Act, as

“the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.”

To process personal data lawfully under Part 3 of the Data Protection Act, it must either be with the consent of the data subject or strictly necessary for a law enforcement purpose. In the case of the latter, one of the conditions in Schedule 8 to the Act must also be met. For example, the processing must be necessary for the protection of someone’s vital interests or necessary for the safeguarding of children or individuals at risk. The draft code of practice makes clear that “strict necessity” is the standard that must be met when exercising these powers for a law enforcement purpose and that “consent” is not an appropriate lawful basis.

The UK GDPR provides the regime that must be complied with for all other data processing; that is to say, processing for a purpose other than a law enforcement purpose. The regime is likely to apply where the powers are being used for the purpose of locating a missing person, protecting a child or an at-risk adult from neglect or physical, mental or emotional harm, or the investigation of death where there is no suspicion of criminal activity. It is not therefore appropriate to set one standard of data processing in these clauses where these different regimes apply. As I have previously indicated, the obligations under the DPA and the UK GDPR continue to apply, and we think that the code of practice is the appropriate tool to communicate these responsibilities to authorised persons.

Amendment 46 would remove the provision that allows for authorised persons to use these powers where other means of obtaining the information exist but it is not reasonably practical to use them. It is necessary that this provision remains, as there may be instances where alternative means are available, but they require excessive resource—for example, either time or costs. The draft code of practice makes clear that the authorised person must assess whether other means available would be unreasonable in the circumstances and that delay alone is not sufficient justification not to pursue an alternative method unless there is a real and immediate risk of harm.

Amendment 48 would create a formal process for an individual to request a review from a senior officer of the necessity and proportionality of using the powers. We agree that all individuals must be given all relevant details about any requests for personal information and have included the obligation to share these details in writing. The data processing notice used by the police includes details of how to challenge a request, but, in all cases, individuals should be asked to volunteer their device and agree to the extraction of information from it only as a last resort, and requests must be necessary and proportionate.

As part of the rape review action plan, Thames Valley Police has begun a pilot to introduce the ability for victims in rape cases to request a review when the police make a request for personal information during the investigation stage. This is not confined to requests for digital evidence. We will continue to engage with interest with colleagues in the NPCC and Ministry of Justice who are working with Thames Valley Police. Following the pilot, if appropriate, we can address this issue further in revisions to the code of practice.

Amendment 50 in the name of the noble Lord, Lord Paddick, would ensure that the matters set out in subsection (3) of Clause 38 are explained to a device user orally as well as in writing. The clause requires notice to be given in writing to ensure that this information is formally recorded and can be referred to at a later stage of an investigation or inquiry if needed. We think that the code of practice is the best place to provide that additional guidance to authorised persons on how best to communicate this information to an individual before they agree to the extraction of information.

17:15

The noble Lord, Lord Paddick, challenged whether there would indeed be no adverse consequences for a victim if they refused to allow access to their phone. He pointed to the scenario of the defence in a rape trial where consent was at issue seeking to draw an adverse inference if the alleged victim had refused to hand over his or her phone. These provisions in the Bill are not about what may or may not happen at trial. Any request to extract information from a device should be a last resort, and the authorised person must be satisfied that the request is necessary and proportionate. If a victim chooses not to provide agreement, we are quite clear that that by itself is not sufficient grounds for the police or CPS to stop the investigation. I think the noble Lord, Lord Carlile, alluded to that. As with any other evidence type, the investigator would continue to seek other evidence that may assist the investigation.

The provisions also require the authorised person to consider other less intrusive methods, and if the victim does not wish to provide their device but the investigator believes there is relevant evidence on it that would progress the investigation—for example, text messages or emails—the police can use other powers, such as those contained in PACE, to obtain the suspect’s device and extract information from it. We see far too many victims withdraw from an investigation at an early stage, especially in rape and sexual offences cases, and while victims already have the right to refuse to agree to provide their device, the Bill seeks to ensure that victims are aware that they have that right. We expect that, as a result of the powers and safeguards we are introducing to ensure all requests are necessary and proportionate, more victims will feel confident reporting these terrible crimes in the confidence that a refusal to provide a device will not automatically stop the investigation.

The noble Lord, Lord Ponsonby, separately raised the issue of third-party material, which is the subject of Amendment 52A. As I said in Committee, the Government recognise that there is a real issue with requests being made for third-party material relating to victims, which sometimes cannot be justified as relevant to a reasonable line of inquiry. Unjustified and intrusive requests can have a significant impact on the confidence of victims who report sexual offences and may put off more from doing so.

I am very grateful to the Victims’ Commissioner and her team for suggesting an amendment to this Bill, but we do not think that we can simply apply the legislative framework relating to extraction of information from electronic devices to third-party material. Although we agree that these clauses provide key principles that could apply to investigators requesting third-party material, access to such material is a broader issue. We need to consider very carefully, in consultation with partners, how a legal framework could operate.

None the less, the Government recognise that legislation may well be part of the solution, and I can commit to actively exploring statutory options. While we consider such options, the police and the CPS must prioritise non-legislative solutions to ensure that practice among investigators and prosecutors improves sooner rather than later, as it is critical that requests for third-party material are necessary and proportionate and form part of a reasonable line of inquiry.

I thank again all those who contributed to the shaping of these provisions, particularly the Victims’ Commissioner and others representing the views and needs of victims, such as the organisations that the noble Baroness, Lady Chakrabarti, mentioned. In addition to strengthening the safeguards that appear in the Bill, including now in relation to confidential material, I again remind the House that the exercise of these powers will be supported by a code of practice which will be the subject of a formal consultation once the Bill achieves Royal Assent. This will provide that further opportunity for interested parties to contribute to the guidance that will govern the daily use of the powers, and I encourage them all to participate.

I say formally that, as part of the consultation, I shall be very pleased and ready to meet the noble Baroness, Lady Chakrabarti, and the organisations that she mentioned today to hear their views first-hand, because it is very important that we get this right. I shall ask my office to set up such a meeting following the launch of the consultation.

In conclusion, I hope noble Lords agree that we have the balance right at this stage between the safeguards to appear in the Bill and the matters that are appropriately addressed in the accompanying code of practice. I hope, on that basis, and on the understanding that we continuing to examine the issue of third-party material, the House will support the government amendments in this group and be content not to move other amendments.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who spoke in this short debate. What a great team, and a model of brevity, clarity and compassion, if I may say so. I thank the noble Lord, Lord Beith, for his rhetorical prods, which highlighted why “strict necessity” should be the operable test here—and, of course, the noble Lord, Lord Carlile, for reiterating disclosure obligations and the nature of the abuse that has been taking place in this area for too long. He was the first to crystallise the intimate nature of the virtual world, which was echoed by the right reverend Prelate and the noble Baroness, Lady Hamwee, among others—thus making it so important that the police explain not just this material and what is going to happen to it but what the process will be thereafter, including potentially court.

The noble Baroness, Lady Jones, ever succinctly and pithily, pointed to the Hobson’s choice with which too many complainants have been presented up to now, and I know that the Minister understands that. The noble Lord, Lord Paddick, should never suggest that he has not been on the ball in relation to this group or any part of the Bill. He has been the most diligent of all the very senior retired police officers in your Lordships’ House on these matters. I am also grateful to my noble friend Lord Ponsonby for making the case so clearly in relation to third-party material; it will clearly need to be returned to in relation to the victims Bill. I am glad that the Minister does not want the police and CPS just to wait for that. It is about trying to improve things immediately; they have been too dilatory in this area for too long.

I shall not respond to each answer that the Minister so graciously offered, save to say that I am not totally persuaded. If anything, some of her answers actually pointed to the wisdom of these amendments. For example, she mentioned a number of times the principle of last resort before this material should be sought from a complainant. That is strict necessity—not the softer approach of necessity and proportionality, and I do not understand why that higher test should not be replicated. It is great that it is in data protection legislation, but why should it not, as a matter of good law and good governance, be in this legislation?

However, I shall not be churlish, because in both the tone and substance of her remarks, the Minister has been such a contrast on this issue with those who have sat there before her. While warmly accepting her invitation to meet with her later and the various organisations, I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

Amendments 44 to 46 not moved.

Amendment 47

Moved by

[Baroness Williams of Trafford]

47: Clause 36, page 30, line 13, at end insert—
“(7A) Subsection (7B) applies if the authorised person thinks that, in exercising the power in subsection (1), there is a risk of obtaining confidential information.(7B) The authorised person must, to be satisfied that the exercise of the power is proportionate— (a) have regard to the matters in subsection (7C), and(b) be satisfied that—(i) there are no other means of obtaining the information sought by the authorised person which avoid that risk, or(ii) there are such other means, but it is not reasonably practicable to use them.(7C) The matters referred to in subsection (7B)(a) are—(a) the amount of confidential information likely to be stored on the device, and(b) the potential relevance of the confidential information to—(i) a purpose within subsection (2) for which the authorised person may exercise the power, or(ii) a purpose within subsection (2) of section 40 for which the authorised person may exercise the power in subsection (1) of that section.”Member’s explanatory statement
This amendment would, in circumstances where an electronic device may contain confidential information, require an authorised person to carry out the additional steps in new subsection (7B) of Clause 36 in order to be satisfied that the exercise of the power in clause 36(1) to extract information from the device is proportionate.

Amendment 47 agreed.

Amendment 48 not moved.

Amendment 49

Moved by

[Baroness Williams of Trafford]

49: Clause 36, page 30, line 24, at end insert—
““confidential information” has the meaning given by section 42;”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 13.

Amendment 49 agreed.

Clause 38: Requirements for voluntary provision and agreement

Amendments 50 and 51 not moved.

Clause 40: Extraction of information from electronic devices: investigations of death

Amendment 52

Moved by

[Baroness Williams of Trafford]

52: Clause 40, page 35, line 17, at end insert—
“(6A) Subsection (6B) applies if the authorised person thinks that, in exercising the power in subsection (1), there is a risk of obtaining confidential information. (6B) The authorised person must, to be satisfied that the exercise of the power is proportionate—(a) have regard to the matters in subsection (6C), and(b) be satisfied that—(i) there are no other means of obtaining the information sought by the authorised person which avoid that risk, or(ii) there are such other means, but it is not reasonably practicable to use them.(6C) The matters referred to in subsection (6B)(a) are—(a) the amount of confidential information likely to be stored on the device, and (b) the potential relevance of the confidential information to a purpose within subsection (2) or section 36(2).”Member’s explanatory statement
This amendment would, in circumstances where an electronic device may contain confidential information, require an authorised person to carry out the additional steps in new subsection (6B) of Clause 40 in order to be satisfied that the exercise of the power in Clause 40(1) to extract information from the device is proportionate.

Amendment 52 agreed.

Amendment 52A not moved.

Clause 42: Regulations about the extraction of confidential information

Amendments 53 to 55

Moved by

[Baroness Williams of Trafford]

53: Clause 42, page 36, line 16, leave out subsection (1)
Member’s explanatory statement
This amendment is consequential on the amendments in the name of Baroness Williams of Trafford at page 30, line 13 and page 35, line 17. It omits provision requiring the Secretary of State to make regulations about the exercise of the powers under Clauses 36 and 40 (extraction of information) in relation to confidential information.

54: Clause 42, page 36, line 21, leave out “section” and insert “Chapter”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 24.

55: Clause 42, page 37, line 4, leave out subsections (4) to (6)
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 36, line 16.

Amendments 53 to 55 agreed.

Amendment 55ZA

Moved by

[Lord Garnier]

55ZA: Clause 63, page 59, line 11, at end insert—
“(1A) The occupier, a representative of the occupier or a constable may only make a request under subsection (1)(d) if they have ascertained from the local authority within whose area the land is situated—(a) that there is a suitable pitch for P’s caravan or caravans and P’s other vehicles and property on a relevant caravan site, or(b) that, within 48 hours of their receiving notice of P’s presence on the land, a suitable pitch for P’s caravan or caravans and P’s other vehicles and property will become available within a negotiated stopping site in the local authority’s area, andthat in either case P has been informed of the availability of such a site.(1B) If there are no relevant caravan sites, or there will not within 48 hours of their receiving notice of P’s presence on the land be a negotiated stopping site within the local authority’s area, and P remains on the land in question for more than 48 hours, the local authority must compensate the owner or occupier of the land for all loss and damage suffered by them as a consequence of P’s entering upon and remaining on the land. (1C) Where P remains on the land under subsection (1B), P does not acquire any right of possession as against the owner or occupier of the land.(1D) In subsections (1A) and (1B)—“caravan”, “caravan site”, “relevant caravan site”, “relevant site manager” and “registered social landlord” have the same meanings as in section 62A(6);“a negotiated stopping site” is a site in respect of which an agreement has been reached between the local authority within whose area the site is situated and the trespassers which allows them to stay temporarily on a particular piece of land which is not an official site, in return for which the trespassers agree to certain conditions relating to, but not limited to, behaviour, tidiness of the site, the length of stay and payment for water, refuse collection and other utilities.”Member’s explanatory statement
The amendment would provide that a person only commits an offence where they are trespassing on land having been offered a suitable pitch at a caravan site or negotiated stopping site in the local authority’s area; and where they remain on the land because there are no other suitable sites, the landowner or lawful occupier are to be compensated for all loss and damage caused by their entering upon and remaining on the land.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Baroness, Lady Brinton, will be participating remotely in this debate.

[Lord Garnier (Con)]

My Lords, I begin by explaining that I will not be pressing my amendment to a Division. I thank the noble Baroness, Lady Whitaker, for prompting me—although she may not have realised this at the time—during the course of Committee, when we were debating other amendments in Part 4 dealing with unauthorised encampments. On that occasion, I explained that I thought there was an unfairness in the Bill in relation to the victims or respondents to criminal trespass—the tenant or landowning victims of trespass on the land; I know there are plenty of arguments about whether there should or should not be criminal trespass. I mentioned a particular example when I was a Member of Parliament some 25 years ago, in 1996 or 1997, when not only did a large group of travellers trespass on a constituent farmer’s land, but their dogs were troubling this farmer’s sheep. Some of them were killed by the dogs in question.

The noble Baroness, Lady Whitaker—perfectly fairly, I think—made the point in that debate, in which I was seeking to place the burden of proof that an activity on a landowner’s or tenant’s land was being conducted unlawfully, on the trespasser who wished to assert that the occupier of the land was conducting an unlawful activity, which could have been any sort of activity. Essentially, I was seeking to persuade noble Lords that it was far more just for the invader of the land to demonstrate that what they were seeking to stop—for example, the growing of genetically modified crops—was unlawful, and that it should not be for the owner or occupier of the land who was carrying out a lawful farming activity to show that he was not conducting an unlawful activity.

That aspect of the debate in Committee is not particularly relevant to what we are doing now, save that it prompted the noble Baroness, Lady Whitaker, to draw my attention to her argument that, because local authorities have historically failed to provide any, or any adequate, official sites for travellers to park their vehicles and reside on, this problem of invading other people’s land will continue.

17:30

I hope I am not breaching a confidence by saying that the noble Baroness and I had a conversation after that debate. I was much informed by what she told me and it to some extent informs the drafting of my amendment. I hasten to add that it is my amendment, not hers; she has a number of others in this group and will no doubt speak to those in a moment.

I differ from the noble Baroness, Lady Whitaker, in that her amendments and others in this group are, entirely properly but none the less regrettably, one-sided. They look after the interests of the Travelling community but fail to understand the problems caused to a farmer, landowner or tenant on whose land Travellers may wish to go. It may well be that the Travelling community has plenty of good reasons for occupying others’ land because, as perhaps the noble Baroness will say, local authorities have failed to provide adequate official sites. In my amendment, I seek to take account of the failure of local authorities to provide adequate sites for Travellers to reside on temporarily.

If local authorities fail or refuse to make adequate provision, it should not be a cost-free exercise for them, nor should it lead to a state of affairs in which the innocent farmer, landowner or other lawful occupier of an area of land is left uncompensated for the damage that may be caused as a result of unlawful occupation or trespass upon it. That is why I have drafted my amendment in the way I have. I hope that, by urging the Government to at least grapple with the idea, this amendment, if it became part of the Bill, would incentivise local authorities to provide the official sites that the noble Baroness vehemently wishes to see.

If local authorities are faced with the possibility that they may have to pay compensation after 48 hours of occupation because they have failed to provide official sites or negotiated stopping sites, as they are called, they may start to do rather better in that area. They may provide sites or share sites with other local authorities where Travellers can park their vehicles and live, either temporarily or for a longer period.

Amendment 55ZA relates to Clause 63. As I said at Second Reading, the Bill is far too long and covers far too many subjects, but since this Clause is there, it provides me with an opportunity to make the Bill yet longer; I rapidly took up that opportunity in Committee and also do so now.

There is a compromise to be made between the wishes of the noble Baroness, Lady Whitaker, and those who support her, who want to see more official sites, and people who agree with me that, if there are not going to be more official sites, there will be further trespass on people’s land and people whose land is occupied by trespassers should not be disadvantaged. I am looking for a pragmatic solution which enables both the Travelling community and the farmer or landowner to be satisfied, or at least less unsatisfied by the inadequate conduct of local authorities, which ought to be providing Travellers with sites.

That is why my proposed subsection (1B) says that, if there are no relevant caravan sites or if, within 48 hours of the complainant receiving notice of the trespasser’s presence on the land, a pitch on a negotiated stopping site within the local authority area is not offered, and if the trespasser then remains on the land in question for more than 48 hours, the local authority must compensate the owner or occupier of the land for all loss and damage suffered as a consequence of the trespasser entering and remaining on it. My amendment is not anti but pro-Traveller, because it encourages the local authority to make sure that either there are official sites or that, within a 48-hour period of notice having been given of the arrival of the trespasser on a particular piece of land, a temporary arrangement is arrived at. If this requires the trespassers to remain on that land for more than the 48-hour period, the landowner or lawful occupier of the land is compensated.

Negotiated stopping sites are not a new idea. A number of local authorities in England and also, I think, in Scotland have, to the advantage of the local authority and Travellers, entered into discrete local agreements in relation to particular Travellers on particular areas of land so that they can be accommodated with the consent of the local authority and the owner of the land and to the satisfaction of the Traveller community. That prevents dissension and intra-community arguments between local residents and the Travelling community.

So long as the negotiated stopping site comes with an agreement that there will be refuse collection, that a charge can be made and received for water supply so that those living on the site can wash and look after themselves and that all the usual things that one would expect on an official site are provided, and so long as the negotiated stopping site does not turn into a permanent site if that is not what the local authority requires, it seems we are producing something that is of benefit to all sides.

It is clear from the debate we had in Committee that there is a huge amount of misinformed but none the less quite vehement objection to the conduct of Travellers. I rather got the impression from listening to the debate that they were being tarred with any number of brushes. It seems to me that all that would go away if local authorities got on and provided proper sites, or if they were sufficiently quick on their feet to negotiate individual stopping sites and if the people disadvantaged by unlawful occupation were properly compensated for the damage caused to them and their farming or other businesses.

That is the simple point of this amendment, and I have taken far too long to explain it.

[A noble Lord]

Yes, you have.

[Lord Garnier (Con)]

I am so glad to have the approbation of the noble Lords opposite, for whom I have the greatest respect—on their negotiated stopping site.

That is what I invite the House and the Minister to consider, and perhaps the Minister will respond in due course, saying why my idea is not quite as wonderful as I think it is.

[Baroness Brinton (LD) [V]]

My Lords, I am a patron of the Traveller Movement. I thank the Minister for reaching out to those of us interested in this issue and I am sorry that the change in date meant that I was unable to attend. I also thank the noble Baroness, Lady Whitaker, for her dedicated work in co-ordinating the efforts of those of us who remain very concerned about these clauses in the Bill.

In Committee, we had a full debate on how the clauses on authorised encampments are a breach of the human rights of the Gypsy, Roma and Traveller communities to live a nomadic life. I thank the noble and learned Lord, Lord Garnier, because he has tried to propose a compromise regarding stopping sites. It certainly merits listening to, and I hope the Minister will take account of it.

In my contribution today, I wish to focus on just one area. Clause 63 also creates the right for the police to confiscate a vehicle that may be an individual and their family’s main residence. That confiscation would have the most extraordinary consequences, giving the police very strong powers that they do not have in respect of other people’s principal residences. If the police were to confiscate a vehicle under this clause, families would not only become homeless, but because they would be deemed to have become intentionally homeless, there is a possibility that their children would be taken into care, especially if there was no appropriate emergency accommodation locally. By doing that, parents may also not be able to move on to their next planned place of work.

I support Amendment 55ZC from the noble Lord, Lord Paddick, which protects individuals by preventing police confiscating their vehicles if it would make the individual owner, and their family, homeless.

The National Police Chiefs’ Council could not be clearer. It said:

“We believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regard to the Human Rights Act 1998 and the Public Sector Equality Duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”


In Committee, the Minister said that these clauses are not targeted at the Gypsy, Roma and Traveller community, but it certainly looks that way, especially as the Government explicitly referenced Traveller caravans in the background briefing to the Queen’s Speech. The Government have also made it clear that they are not criminalising trespass more generally. Even if the outline of these proposals were in the Government’s manifesto, actions that target one particular community, infringing their human rights and giving the police powers that they have said repeatedly that they do not want, cannot be right. I hope that the Minister will rethink this deplorable legislation.

[Baroness Whitaker (Lab)]

My Lords, I apologise for not raising my eyes to the noble Baroness, Lady Brinton, initially. Her remarks are well worth paying attention to.

I am flattered by the attribution of influence by the noble and learned Lord, Lord Garnier. I have taken a slightly different route, but his amendment is interesting. All the amendments in this group are aimed at resolving prejudice against and actual homelessness of the Gypsy and Traveller communities. They all deserve serious consideration. Amendment 57 in the name of my noble friend Lady Lister and the cosignatories of my amendment would deal with the underlying social situation of these fellow citizens, in particular the non-arrival of the strategy initiated quite some time ago by the noble Lord, Lord Bourne, when he was the very effective Minister responsible, and I think endorsed by the noble Baroness, Lady Williams.

I will speak to Amendment 55ZB in my name and supported by a distinguished cross-party group to whom I express my gratitude. I will move it to a vote if its thrust is not accepted by the Government. I am also grateful to the Minister for the meeting she gave several of us last week, when she said that the provision of the sites for Gypsies and Travellers was a planning matter and an amendment that dealt with that was not for this Bill. Indeed, it is a planning matter, as the police said in their evidence to the consultation on the Bill, but the trouble is that the lack of sites and consequent vulnerability of Gypsies and Travellers to summary eviction is inexplicably linked. Despite the noble Baroness’s assurance at our meeting that she would consult DLUHC on a way forward, I have heard nothing further.

17:45

Although local authorities have a duty to assess the need for caravan sites in their assessment of housing need, it remains the case, as we said in Committee—endorsed now again by the noble and learned Lord, Lord Garnier—that local authorities simply do not do this throughout the country. Some do, but the resulting national provision is so far short of need that an unacceptable proportion of the small number of travelling nomadic families undergoes damaging disruption to their children’s education, hostility and traumatic upheaval as a frequent routine, as was comprehensively heard in Committee.

We do not think that this should be tolerated, hence our amendment protects travelling families from the nightmare of forceable eviction unless they have ignored a suitable site, with an additional provision of a short interval to arrange a negotiated stopping place. This is an excellent system, pioneered by Leeds local government and its Gypsy and Traveller community. It provides mains drainage and rubbish collection. It is very far from a licence to leave a mess, which some noble Lords appear to think is the norm, because there are conditions attached to staying on a negotiated site, as the noble and learned Lord, Lord Garnier, said. They have to keep it tidy and quiet; they have to run an orderly site.

This amendment would give local authorities a much-needed incentive to set up orderly sites and thus avoid the substantial costs of eviction. My discussions with local government representatives indicate that local authorities would be receptive to enabling such a system. Their evidence to the Government’s consultation on the Bill makes it quite clear that the shortage of sites is a key issue, and a nationwide network of negotiated sites where needed would obviate the fear on the part of Gypsy families that they will have nowhere legal to put their home. It would also do much to counter the prejudice and bigotry they encounter.

I commend the noble Lord, Lord Greenhalgh, for his first step of encouragement of this system. Without it, we are at risk of allowing a barbaric, arguably illegal and cruel regime to deal with a gap in the planning system. It is time to get serious about site provision.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak to my Amendments 55A, 55B and 56A. I also express support for amendment from the noble Baroness, Lady Whitaker, and great appreciation for her enormous hard work on this issue over a very long period. I declare my position as a member of the APPG on Gypsies, Travellers and Roma.

Persecution of Gypsy and Roma people in the UK goes back a very long way to soon after they arrived as an established community on these shores. They were banished in 1531 and again in 1544. In 1655, an Edinburgh merchant was allowed by the Privy Council to transport a range of people including Egyptians, as Gypsies were then known, to Barbados and Jamaica. In 1715, nine women and men were, in the same manner, transported to Virginia. There is no evidence that any of these people had committed any crime.

We are quite a few centuries on from the history I am citing, yet somehow we find ourselves in a sadly familiar place, with a part of the law explicitly targeting people who been long subject to the prejudice, discrimination and the bigotry that the noble Baronesses, Lady Whitaker and Lady Brinton, referred to. Part 4 of this Bill has caused great distress, concern and fear among the people who risk being affected by it and a great outcry from our entire human rights community.

That is why I have tabled Amendments 55A, 55B and 56A, which would strike out all of Part 4 of the Bill. I cannot move in any other way at this point, even though I accept and will vote for the amendment from the noble Baroness, Lady Whitaker, should she put it to a vote. It is my intention, however, to test the opinion of the House, because this is a moral point that cannot be allowed to simply drift by.

No one can claim to be unaware of these issues. Should it be new to any noble Lord, I point them to an article on openDemocracy by Luke Smith, an article in the Independent by Lisa Smith, and the submission from the Friends, Families and Travellers group to the government inquiry. I also point to the fact that George Monbiot has described Part 4 of the Bill as “legislative cleansing”.

At Second Reading, the Minister claimed that this was all about protecting communities from the distress and loss of amenity caused by unauthorised encampments. However, the noble Baroness, Lady Brinton, referred to the police reaction to this, and I will expand a little on what she said. In the response to the government consultation in 2018, 75% of police responses said that current police powers were sufficient, and 85% of police responses did not support the criminalisation of unauthorised encampments. I am going to repeat the conclusion of the National Police Chiefs’ Council, because it must not be ignored:

“We believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regards to the Human Rights Act 1998 and the public sector equality duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”


I must apologise to the House for being unable to attend Committee for this part of the policing Bill because I was at the COP 26 climate talks, and as the very small Green group we have to divide our resources as best we can. However, I thank my noble friend Lady Jones of Moulsecoomb for her explanation and expression of my intent to do this at this stage. As my noble friend said then, these clauses are completely unacceptable, discriminatory and dangerous, and that is why I am making this move today.

Again at Second Reading, the Minister said that this was delivering on a manifesto commitment. I can imagine it being said that under the conventions of the House the Lords are not supposed to thwart things that are in an elected party’s manifesto—even when that manifesto won the backing of only 44% of voters. But what if something is simply morally wrong—is racist, and risks putting us on a potentially slippery slope to horrors that the world has seen before?

It also worth questioning the celebration of British values. If any noble Lords have not seen it already, I point them to the article by the noble Lord, Lord Dubs, in the Independent today, which addresses that very point. I also point them to the conclusions of the Joint Committee on Human Rights:

“Gypsies, Roma and Travellers would … be in the position of potentially committing a criminal offence without having done anything at all, merely having given the impression to another private citizen that they intended to do something. This is very dangerous territory, which risks creating offences whose elements could largely be based on the prejudice of the accuser, and, perhaps, the justice system.”


To really explain why I intend to test the opinion of your Lordships’ House—at least on Amendment 55A; I will see how that goes—I would point out that blowing a dog whistle does not just create a momentary disturbance. Blowing a dog whistle calls the pack together, and we know that in a pack behaviour is different—potentially more violent, dangerous and disastrous than people acting alone. The amendments, commendable as they are, do not silence the dog whistle. Having looked at history, I have to say to your Lordships’ House that I have to do what I can today to try to ensure that that whistle is not blown. It is my intention, therefore, to call a vote on Amendment 55A.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak to Amendment 57, which is in my name, those of the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, and that of the right reverend Prelate the Bishop of Manchester, whose support I am very grateful for.

First, however, I express my support for other amendments in this group, in particular the one in the name of my noble friend Lady Whitaker, who, as has already been said, has been such a long-standing and doughty campaigner on these issues. I also wish to make clear my opposition to this part of the Bill, on the grounds of social justice and human rights, which, as we made clear last week, should not be subject to a process of so-called “gold-plating”. I will not, however, repeat the arguments that I made in Committee, and unfortunately I do not think, realistically, that we can excise these clauses, damaging as they are. I say that with apologies to the noble Baroness, Lady Bennett of Manor Castle, who has made a very strong case for doing so.

As I warned the Minister in advance, the purpose of this amendment is not quite what it says on the tin, which reflects what the Public Bill Office considered to be in scope. The phrase “entrenched inequality” is taken from a June 2019 press statement for the launch by the then Communities Minister, Lord Bourne, of a national strategy to tackle the inequality experienced by the Gypsy, Roma and Traveller communities. Thus, what this amendment seeks to do is facilitate a debate about what has happened to this much-needed and overdue strategy, and to push for some action on it. It is framed in the way that it is because Part 4 should not have effect until the strategy, which should address Part 4’s likely impact on entrenched inequality, has been published, with a report laid before Parliament for debate.

The announcement of the proposed strategy in June 2019 followed a blistering report from the Women and Equalities Select Committee. It concluded that Gypsy, Roma and Traveller people have the worst outcomes of any ethnic group across a huge range of areas, including education, health, employment, criminal justice and hate crime—to which I would add housing, which it chose not to look at. The committee observed:

“While many inequalities have existed for a long time, there has been a persistent failure by both national and local policy-makers to tackle them in any sustained way.”


The committee deplored the lack of leadership shown by the relevant ministry and the failure to develop a cross-departmental strategy. It was also critical of the reliance on pilot projects that did not seem to go anywhere. In a letter to the then Minister, the committee welcomed the announcement of the proposed strategy as “a very positive step”, but noted the lack of detail. More than two years later we still await that detail, despite repeated ministerial assurances that they remain committed to a strategy to tackle the inequalities identified by the committee and others.

In Committee, I asked the Minister for an update and an assurance that the long-awaited details would be published before Report. The Minister responded that she understood that the department for levelling up, et cetera, was

“working closely with other government departments to progress the strategy, which will be published in due course.”—[Official Report, 3/11/21; col. 1333.]

She then predicted that I would roll my eyes at the phrase “in due course”—and how right she was. She assured noble Lords, however, that the Government remained firmly committed to the strategy’s delivery.

I am afraid that simply is not good enough, especially in the face of legislation that is widely predicted to entrench further the inequalities suffered by the GRT communities. I gave the Minister notice of the purpose behind this amendment in the hope that she might have been able to extract something more substantial than “We’re working on it” from the department for levelling up et cetera, and answer questions such as: what are the parameters of the proposed strategy? Will there be targets? When will it finally be published? Answers to such questions are the very least we—and, more importantly, members of the GRT communities—can expect at this stage. I hope the Minister will be able to provide some answers.

18:00

[The Lord Bishop of Manchester]

My Lords, I declare my interests, first in my work with the National Police Chiefs’ Council, which has already been referred to today, secondly as chair of the Wythenshawe Community Housing Group, and lastly as deputy chair of the Church Commissioners for England, one of the largest owners of farmland in the country. I think I have almost as wide a range of interests as has this extraordinarily diverse and far-reaching Bill.

I am grateful to those noble Lords from across the House who have proposed and supported the amendments in this group and spoken to them so powerfully in this debate. Like others, I am also grateful to the Minister for generously taking time to engage with us last week.

In my short time so far as a Member of your Lordships’ House, I have become accustomed to Ministers telling us that they have sympathy for our position but that the present Bill is not the way to address the matters that concern us—for example, when we tried to look at safety in high buildings on the then Fire Safety Bill. I do not see why we cannot play the same card. We need a separate Bill, one that deals comprehensively with the needs as well as the obligations of Gypsy, Roma and Traveller people—not simply legislation that offers fresh and very serious penalties for what may be rather minor infractions. The matters addressed in these clauses would surely be better dealt with in that more balanced context. That would allow Her Majesty’s Government to deliver on their manifesto commitment.

If that is asking too much, the penalties exacted for matters treated in this part of the Bill should at least be proportionate to the offences committed and not excessive. I draw your Lordships’ attention to the principle of lex talionis, set out in the Hebrew scriptures and most commonly referred to as “an eye for an eye”. This was intended never as an endorsement of physical mutilation but as a limit to how severe a sanction should be. It sets a maximum, not a minimum. Put bluntly, no penalty should exceed the seriousness of the offence.

I know from my housing association experience that there are many cases in which someone may inhabit their dwelling in ways that cause nuisance to their neighbours —the way they dispose or do not dispose of rubbish; playing loud music late at night; abusive language; sometimes even damage to neighbours’ properties—but I also know that there are many checks and balances before anyone can be removed from their home. Yet these clauses could allow for confiscation of somebody’s primary or only dwelling on the basis of a very low level of nuisance caused. Unless Amendment 55ZB in my name and those of other noble Lords is accepted, there will be no need to ensure that any alternative accommodation or site is, or rapidly can be made, available. There is some irony that we are debating powers to render families with no place to lay their heads, not even a stable, this close to Christmas. Surely we need to balance these provisions by a limitation on using them in such circumstances.

I know it is not the Minister’s intention to enact disproportionate penalties for minor infringements, so finally I ask her, as well as accepting our Amendment 57, to put on record in this debate that, before the Bill becomes law, suitable statutory guidance will be published to limit the exercise of these powers to that small minority of cases in which a very high threshold of wrongful behaviour has been reached; and, further, that reports on the exercise of these powers will be compiled and made available to your Lordships’ House at least annually, so that we can detect any tendency to abuse the powers that the Bill would enact.

[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Manchester and to support the noble Baronesses, Lady Lister and Lady Whitaker, on Amendments 57 and 55ZB, to which I am happy to be a signatory along with noble Lords drawn from right across the House.

The noble Baroness, Lady Lister, set out the arguments for Amendment 57 with her usual clarity. At the heart of her remarks is the compelling case for social justice and the upholding of human rights. Suffice it to say that when it comes to inequalities, this group of people—Gypsies, Roma and Travellers—are in a league of their own. That was the conclusion of the March 2019 report of the Women and Equalities Select Committee. I know the Minister has given a great deal of personal attention to this issue; like others, I put on record my gratitude to her. When she comes to reply, I wonder whether she can tell us what account was taken of that report in framing this legislation and what action was taken to develop the cross-departmental strategy it called for.

The noble Baroness, Lady Lister, noted the absence of any detail still. I simply reinforce her message that the Government should publish and allow a debate on the strategy before implementing Part 4, or at least give a clear commitment as to when the strategy will be published. No doubt Covid will be prayed in aid to justify the delay but, even allowing for Covid, more than two years is simply too long. After all, those same constraints did not prevent the department coming forward with this change of law—or, for that matter, this entirely new Act of Parliament.

I will say a few words in support of the noble Baroness, Lady Whitaker, who in her admirable way has pursued this issue over so long and has encouraged so many of us to join the all-party parliamentary group in which she plays such a leading role. She has rightly pointed to the absence of sites—a point made by the noble and learned Lord, Lord Garnier. How we respond to that is surely about whether to criminalise or incentivise local authorities to do something about it.

The greatly missed Lord Avebury promoted the Caravan Sites Act 1968. As a young city councillor in Liverpool in 1973, I, along with others—some of whom are in the Chamber this evening—pressed for the city council to do something about that Act. We pushed for the opening of a permanent site for Travellers. It is situated in Oil Street, in Tara Park. The Act led to many new sites, but its repeal in 1994 disincentivised provision, and there are now some 1,696 households on the waiting list for permanent pitches in England, while the last funding round secured resources for just two transit sites.

The civilised answer is to make provision, not to introduce draconian, criminalising legislation based on some very dubious legal principles, which seem to me to run contrary to human rights obligations and our duties to contest bigotry and prejudice with solutions—points made by the noble Baroness, Lady Bennett. According to the Equality and Human Rights Commission’s barometer of prejudice, 44% of those surveyed expressed hostile and openly negative feelings towards Gypsies, Roma and Travellers. We should beware of doing anything to reinforce such prejudice and the old tropes.

The noble Baroness, Lady Bennett, reminded us of where prejudice can lead. On 2 August each year, the day on which we recall the Roma genocide, I am always struck that on that very day in 1944 the Gypsy family camp at Auschwitz-Birkenau, the German Nazi concentration camps in the then occupied Poland, was liquidated. It is sometimes suggested that, during the Holocaust, half a million Roma and Sinti perished. At the time of the liberation of Auschwitz, just four Roma remained alive.

In our generation, it is down to us to guard against prejudice, which—I know the Minister would agree—can so easily morph into something worse. That is why the noble Baroness, Lady Whitaker, is right to draw attention to the obvious and inevitable violation of human rights that will occur if this clause remains unamended. As the Bill stands, it both criminalises people and deprives them of their rights under Article 8 of the European Convention on Human Rights, which requires respect for their homes—a point the noble Baroness, Lady Brinton, made—and their private and family life, which by law includes respect for their traditional ways of life. As long ago as 2001, the ECHR ruled that there was

“a positive obligation on Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.”

I wonder whether the Minister can tell us how this provision achieves that objective.

Since 1995 the UK has been a signatory to the Framework Convention for the Protection of National Minorities, Article 5 of which says:

“The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture”.


It is impossible to see how this legislation honours that obligation.

Before Second Reading, the noble Baroness, Lady Whitaker, the noble Lord, Lord Bourne of Aberystwyth, and the right reverend Prelate the Bishop of Manchester, along with myself, published an article in the House magazine pointing out that the way of life lived by the Roma, the Gypsies and the Travellers stretches back half a millennium, long before the enactment of the Enclosure Acts and the agricultural revolution. In this Bill, we intend to overturn the practice of centuries and criminalise trespass and enable the police to seize vehicles, as we have heard, and homes. Imagine the impact on the children of these families as they watch their parents’ possessions sequestrated and their families evicted—and this could be in the very depths of winter.

These amendments point to rank discrimination and are an attack on a way of life. Adequate accommodation for Gypsies and Travellers is a better, more civilised and more humane way to proceed, rather than locking people into endless cycles of criminalisation and evictions. If this amendment is taken to a vote by the noble Baroness, Lady Whitaker, I for one will certainly go into the Division Lobby to support her.

[Lord Bourne of Aberystwyth (Con)]

My Lords, I first of all apologise that I was unable to be here for the Committee on this Bill because of the difficulties of the rail link from Salisbury, which Members will recall. I thank the Minister for making time available to discuss these amendments and this general area. I wish to speak specifically to Amendment 55ZB, which was so well proposed by the noble Baroness, Lady Whitaker, who has done great work in this area, and Amendment 57, where, similarly, the noble Baroness, Lady Lister, proposed it so effectively.

I oppose the provisions on the criminalisation of trespass and Part 4 in general. I do so for several very practical reasons, which I will deal with. First and foremost, it does not deal with the root of the problem: the massive undersupply of sites for Gypsy, Roma and Travellers. I recall this from when I was a Minister; one has only to see around the country the lack of supply of places to know that this is true. I anticipate that the Minister will probably say—because it will be in the brief—that there is a great supply of private places. That is true, but that is a bit like arguing that families on moderate income should be reassured by hotel places in London because there is always a suite available in the Ritz or the Savoy. It does not answer the basic point about the lack of local authority sites. Were they available, this problem would melt away like snow in springtime. That is my first basic point. I do not understand why an attempt has not been made first—before bringing this legislation forward—to deal with that planning aspect and bring legislation forward on that point, as other noble Lords have said.

The second basic point I want to come to is whether this will make any difference. We have heard from many noble Lords that the police are against this provision—they know very well that it will make no difference. People—victims, I would say—will be moved from site A to site B, then from site B to site C and so on, all the way through to site Z and then back again. It is pointless; it is fruitless; it is costly; it is divisive; it is draconian. We should drop it. It does not help the situation, and it will lead to the police being put in a difficult position in relation to legislation that they do not want. I join other Members in saying that there are many local authorities from across the political spectrum that have come forward with proposals. We have heard about Leeds, but it is true also of Fenland, in Cambridgeshire, which has come up with imaginative proposals for dealing with the shortage of sites. Local authorities should be incentivised across the country to deal with this deep-seated problem.

My third reason for opposing this legislation is perhaps at the root of my real objection, and that is that there is something dreadfully un-British about this. It seems to home in on a community that is, in many ways, the lost minority and lost in plain sight. We have heard reference to the committee on equalities, which presented a report, and what it said was reinforced by the race disparity audit, which was a great initiative undertaken by Theresa May and which led to the talk of this strategy. Indeed, there were meetings: taking it forward for education was Nadhim Zahawi, as a junior Minister, and for health, Jackie Doyle-Price; there were representatives from the Home Office, such as, if I am not mistaken, the then Home Secretary, Sajid Javid, and representatives from justice, pensions and so on. All committees were represented in taking this strategy for legislation forward. I wonder what has happened to that.

18:15

The life chances of this minority, as was demonstrated clearly by the race disparity audit, are the least across the board, in every single area—and by some considerable distance. We would not tolerate it for other minorities; why do we tolerate it for Gypsy, Roma and Travellers? It is high time this was dealt with. The Conservative Government committed to doing that, but that was some two and a half years ago; I wonder what has happened on this. I know the Minister well as a friend, and I exempt her from wanting this legislation—I suspect her heart is probably not in it, because it is discriminatory at root, I feel, and not something that a British Government should be doing.

When I was preparing my speech last night, I noticed there was a television programme on, and so I thought that I would take a break. It was the excellent Simon Reeve—some noble Lords might have seen it. He was doing a travelogue on Turkey, and it was very interesting. There was a nomadic minority being moved on. It was wretched, it was sad, and I sat there thinking how proud I was that we do not do it this way. Then I had the chilling thought that we were about to.

I hope we can pull back from this. That is certainly what we should be doing. We are far better than this.

[Baroness Greengross (CB)]

My Lords, I am speaking in favour of Amendment 55ZB from the noble Baroness, Lady Whitaker, which would ensure that Gypsies and Travellers are not evicted from an unauthorised site unless they have refused to go to a suitable alternative site. I note the noble Baroness’s comments that, when she met with the Minister, the noble Baroness, Lady Williams, she was told that the provision of sites for Gypsies and Travellers was a planning matter and that an amendment which dealt with it was not for this Bill.

On 4 November, the Minister, the noble Lord, Lord Greenhalgh, in response to my question highlighting that only eight local authorities out of 68 in the south-east of England have identified a five-year supply of specific, deliverable sites for Gypsies and Travellers, responded that it is the responsibility of local planning authorities to make an assessment of the need for both permanent and transit sites and to identify sites in their local plans. The Government are of course correct that this is a planning matter, yet the evidence is clear that this issue has not been appropriately addressed by many local authorities.

This amendment provides some protection for the Gypsy and Traveller communities, as it stipulates that they cannot be forcibly evicted unless they have refused a suitable alternative site. While this Bill is not about planning, we cannot ignore the impact it is going to have, if passed, on nomadic communities at a time when there are too few suitable sites.

It is encouraging to hear that, in Leeds, there have been systems established and sites made available to address this issue. It is even more encouraging still to hear that the noble Lord, Lord Greenhalgh, is taking steps to encourage these types of systems across the country.

This amendment would provide appropriate protection for Travellers and Gypsies, while also ensuring that, where a suitable alternative site is available, this cannot be refused. Further, it highlights why more must be done to encourage local authorities to provide suitable sites for Gypsies and Travellers.

[Lord Pannick (CB)]

My Lords, I have a question for the Minister which is relevant to Amendment 55ZB, in the name of the noble Baroness, Lady Whitaker. The noble Baroness will know that the offence which will be created by new Clause 63 contains a defence in subsection (6), at line 40 of page 59 of the Bill. The defence is that it is open to the Traveller to say that he or she had a “reasonable excuse” for not moving on when asked to. Does the noble Baroness accept that it would be open to the Traveller to say, “I have a reasonable excuse for not moving on; my reasonable excuse is that there is no suitable pitch in the local authority area to which I can go, and it is therefore completely unreasonable on the facts of my case to expect me to move on”? Does the noble Baroness accept that it would be open to the Traveller to present that defence? It is certainly the defence I would advise the Traveller to use, were I representing him or her. If the noble Baroness accepts that that defence in principle would be open to the Traveller, I respectfully suggest that much of the force of the amendment in the name of the noble Baroness, Lady Whitaker, is reduced, because there is a balance in this provision.

I make one other point: I do not myself find it particularly helpful when we are debating these difficult issues—and they are difficult issues—relating to a balance between competing interests for noble Lords to refer to Auschwitz. Let us be proportionate and reasonable about these issues. We have here a difficult question of the rights and interests of the Traveller and the rights and interests of the occupier or owner of land. I remind noble Lords that this criminal offence applies only if it can be shown that the occupation of the land by the Traveller is causing “significant damage”, “significant disruption” or “significant distress”. I understand the concerns, but let us keep a sense of balance and recognise, if I am right in my understanding of subsection (6), that there is a defence open to the Traveller who can show that they have a reasonable excuse—which, so far as I can see, would cover the absence of suitable pitches in the area.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support this group of important amendments, which seek to bring some sort of equality into the Bill when dealing with the Gypsy, Roma and Traveller communities, which is significantly absent from the Bill as it stands.

On Friday, the most reverend Primate led a debate on the challenges to freedom of speech and the role of upholding freedom of speech. He said in his remarks that one of the threats to freedom of speech is the “dehumanisation” of those with whom we disagree:

“We must be alert to how our habits of communication can stifle our creative imagination—how they might make us see others as somehow less than fully human.”—[Official Report, 10/12/21; col. 2109.]


While this section of the Bill is not about freedom of speech, it is certainly about the loss of freedom to roam.

In Committee, we heard speeches from some quarters which made assumptions about the character and lawfulness of the Travelling community, without evidence being provided to substantiate the allegations. All the amendments in this group deal with Part 4 of the Bill, which seeks to demonise and terrorise the Travelling community. I support Amendment 55ZB and congratulate the noble Baroness, Lady Whitaker, on her contribution.

The Travelling community is often portrayed as being less than fully human. It is true that their way of life is very different from that of those in this Chamber, but they are human, and they have the right to a roof over their heads, to educate their children and to have access to healthcare. This can be achieved only when they have somewhere to stop with their caravans. The Minister has rightly said that the provision of sites is a local authority matter and dealt with through the planning process, but she is reluctant to ensure that local authorities step up and fulfil this role.

As a vice-president of the LGA, I receive a regular copy of the Local Government First periodical. In the latest edition, there are two articles on Gypsies and Travellers. The first is from Sarah Mann, the director of Friends, Families and Travellers, about countering inequalities. GRT communities are known to face some of the poorest life outcomes across multiple indicators among the UK population. FFT provides local government with training on cultural awareness to provide more inclusive services, and this has resulted in the provision of more transit and permanent sites in certain areas. The second article was from Boris Worrall, chief executive of Rooftop Housing Group, which provides high-quality accommodation solutions to the Travelling community. He writes that the evidence shows that

“where high-quality sites are provided for the … (GRT) communities, and managed effectively, there is a wealth of evidence about better outcomes for residents, positive community relations and the avoidance of taxpayer costs.”

There are solutions out there to what some sections of our community see as the problem of GRT. It is part of the role of government to promote these to the benefit of all. The draconian measures in this Bill are not the answer and are a sledgehammer to crack a nut. My friend Lord Avebury, had he been here, would have had much to say on this matter.

[Lord Hope of Craighead (CB)]

My Lords, there is a lot of force in what the noble Lord, Lord Pannick, said about reasonable excuse. There is a problem, however, in that one would not know that one had a reasonable excuse until one had been charged with the offence. The advantage of the amendment spoken to by the noble Baroness, Lady Whitaker, and others is that it achieves certainty and intercepts the risk of being brought to court to have one’s reasonable excuse determined. Although I tend to agree with what the noble Lord said, it comes too late in the process, and the safest and most secure way of dealing with it is to intercept the process at the beginning, which is exactly what the amendment in the name of the noble Baroness, Lady Whitaker, seeks to do.

[Lord Paddick (LD)]

My Lords, there are two problems here. Because of the behaviour of the lawless few, all Gypsy, Roma and Traveller communities are being stereotyped as troublemakers. The new law creates offences when people trespass on land with vehicles where, among other things,

“it is likely that significant damage or significant disruption would be caused”,

and, again, where

“significant distress … is likely to be caused”.

All GRT people are likely to be criminalised by these new offences because people’s prejudices will result in them anticipating damage, disruption or distress, despite no previous experience of the GRT people concerned, or any other evidence—just their own prejudice. The second problem is that there is no option for many GRT people other than to trespass on land because local authorities do not, and do not want to, provide authorised pitches. Imagine the reaction of motorists if there were no local car parks and double-yellow lines on every road? That is the equivalent of what GRT people face.

That is the reason for these amendments. In the absence of removing the whole of Part 4 from the Bill, we will vote with the noble Baroness, Lady Whitaker, should she divide the House. At the very least, the police should not be allowed to seize caravans when they are peoples’ homes and the statutory duty on local authorities to provide authorised sites should be reinstated. That is the purpose of my Amendments 55ZC and 55AA. These may be planning issues, but the clerks have ruled that these amendments are within scope.

18:30

[Lord Rosser (Lab)]

First, I congratulate my noble friend Lady Whitaker on her amendment and on all the work that she and many others have done over a considerable period on the issue we are discussing. I express our support for the amendment, on which her co-signatories have also spoken to great effect. The Caravan Sites Act 1968 laid down a statutory duty to establish authorised sites with funding from central government, but unfortunately the Criminal Justice and Public Order Act 1994 repealed this provision, since when there have been fewer than three authorised sites built in England on average every year. We are now faced with a Bill under which people on unauthorised encampments who do not cause damage, disruption or distress can commit the new offence of

“residing on land without consent”.

I say that because the Bill provides that the offence can be triggered when a person is considered “likely” to cause damage, or that significant distress is “likely” to be caused by their being there.

As has been said, it appears that the police do not support these powers: they say that site provision is the issue. My noble friend’s amendment is, in my view, very moderate. It does not remove the powers but adds the importance of site provision and negotiated stopping places into the Bill. Deputy Chief Constable Janette McCormick from the National Police Chiefs’ Council told the Joint Committee on Human Rights that

“the issue of unauthorised encampments is a planning issue and is an accommodation issue … we as the police are not seeking any additional legislation to deal with that”.

She also said of authorised sites that

“where we have an increasing number of sites, we have a direct correlation with a reducing number of unauthorised encampments.”

In the 2018 consultation on these powers, the National Police Chiefs’ Council said:

“Trespass is a civil offence and our view is that it should remain so ... The NPCC position has been—and remains—that no new criminal trespass offence is required. The co-ordinated use of the powers already available under the Criminal Justice and Public Order Act 1994 allows for a proportionate response to encampments based on the behaviour of the trespassers.”


In evidence to the Commons Public Bill Committee, the National Police Chiefs’ Council said that it

“strongly believes that the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments, which obviously create real challenges for the people who are responsible for that land and for those living around.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 15.]

It also raised concerns about police resources and the police being drawn into this issue. We seem to be in a position with the Bill where the Government are not accepting the advice of the police, but are pulling in extra police resources from overstretched forces and skirting the issue that is really at the heart of this, which is site provision, which our police and local authorities advise is the thing that will actually make the difference.

Let me make it clear, as others have done, that damaging and harmful behaviour is totally unacceptable, and that landlords and local communities need protection and police support where it happens. It is already a criminal offence for a person to fail to leave land where the police direct them to, when their behaviour has caused damage to land or property or been abusive or threatening. Presumably, that is why the police say that they already have the powers that they need, based on behaviour.

As I said at the beginning, my noble friend Lady Whitaker’s amendment is very moderate. It does not oppose the powers and will not remove the powers from the Bill but would simply add a need to look at the issue of site provision and the successful model of negotiated stopping places. Let us be clear that it provides that the powers under this section can be used only where there is a suitable local pitch for people to be moved on to or a negotiated stopping site can be arranged within 48 hours. It defines a negotiated stopping site as a location temporarily agreed on with the local authority where people can stay, subject to conditions including

“behaviour … length of stay and payment for water … and other utilities.”

It thus specifically deals with the issue, raised repeatedly by the Government, where some people may refuse to use sites that are available.

The cross-party Joint Committee on Human Rights said that

“the Government should not use the criminal law to address what is essentially a planning issue”.

I am sure all noble Lords are waiting to hear the answer to the question of the noble Lord, Lord Pannick, as to what is “a reasonable excuse”. If the Government were to accept my noble friend Lady Whitaker’s amendment, far from weakening the Bill, it would give this part of the Bill a significantly greater effect in reducing the number and impact of unauthorised encampments. I hope the Government will be prepared to move on this issue.

[Lord Young of Norwood Green (Lab)]

My Lords, I waited because I wanted to hear which amendments our Front-Bench speakers were supporting. I made my views clear in our previous debate on this issue. I was a member of the All-Party Parliamentary Group on Gypsies, Travellers and Roma and I no longer am, because in my view the behaviour of some Travellers—I stress “some Travellers”—was not being publicly condemned. I used the phrase “the 2R formula”: I will absolutely continue to defend the rights of Travellers, but along with those rights, in our society, there also comes the responsibility to behave in a reasonable way.

I congratulate my noble friend Lady Whitaker on her amendment, because at least there is an acknowledgement in it that there are problems with behaviour, and we should recognise that. I thank the noble Lord, Lord Pannick, for his contribution about adopting a proportionate response to this. This is not about dehumanising Gypsies, Roma and Travellers; it is not about taking us back to Auschwitz, and I say that as a non-practising Jew, so I hope my contribution will be taken in this light. There are, unfortunately, real examples of some Travellers behaving in ways that are totally unacceptable. Some, unfortunately, have been associated with modern slavery. These are cases that have been proven. Others seem to think that it is perfectly reasonable to go around collecting building waste, or other waste, and saying it will be disposed of properly when it will not—it will be dumped. We had this on our own village green.

When somebody says that people are opposed to Travellers, they mean that they are opposed to the unreasonable behaviour of some Travellers. That is what causes a lot of it. Of course there are examples of people who are prejudiced, but we should not generalise on this issue. I have some sympathy for my noble friend Lady Whitaker’s amendment and that of the noble and learned Lord, Lord Garnier, who has genuinely tried to find a way forward on this.

I thank the Minister; we had a useful meeting, and I suggested to her that one thing that could be done is to set up local liaison committees—they may exist already—which would involve representatives of Travellers, residents and local authorities. I have not tried to define specifically what they would be but there certainly needs to be more contact and communication between the groups. It would be useful if the Minister could give some examples of what she considers best practice around the country; I believe some examples have been usefully quoted.

A minority of Travellers behave in ways that are unacceptable to communities. If that behaviour could be stopped or condemned, I think there would be a totally different attitude within communities. It is about proportion, about getting the balance right. Have the Government got it absolutely right? I am not sure—I am waiting to hear the Minister’s response—but polarising the debate in this House as some have done by saying that it is all based on people’s innate prejudice and discrimination against Travellers does not help.

There is a genuine problem, and it may be that the Government’s solution is not absolutely right. I was interested in the comments of the noble Lord, Lord Pannick; I might have known that he would put his legal finger on it when he asked whether, if someone was behaving reasonably and gave an excuse that there was no other stopping place, that would be considered a reasonable response in the circumstances.

I look forward to the Minister’s reply. I hope my noble friends will recognise that although I have not entered this debate with the most popular view, I have tried to show that I do not discriminate against Gypsies, Roma and Travellers—far from it. I continue to want to support their rights, but on the basis that they recognise that they too have responsibilities.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in what has been quite a wide-ranging debate on Part 4 of the Bill. Part 4 delivers on a clear manifesto commitment to tackle the harms caused by unauthorised encampments. I thank the noble Lord, Lord Pannick, for his comments, and agree that equating the measures in this Bill with the atrocities committed in Nazi Germany is, quite frankly, disgraceful. I will not take an intervention until I have finished my point. Any noble Lord who thinks that I would stand at this Dispatch Box and promote anything that had even a sniff of that is quite wrong. I give way to the noble Lord.

[Lord Alton of Liverpool (CB)]

I thank the Minister. I hope she will read Hansard carefully in the morning. She will see that I did not equate this Bill with what happened in that period. I said that, when prejudice is inflamed, it can morph into terrible things; historically, we know that to be true. That is all that I said—I did not say that that is what the Government are doing. I do not like what the Government are doing in Part 4. I support the amendment, and I gave very good reasons for that.

[Baroness Williams of Trafford (Con)]

My Lords, it is interesting that the noble Lord thinks that I was referring to him. I said that the comments of noble Lords who equated this with the atrocities of Nazi Germany were, quite frankly, disgraceful. I did not name him. It is interesting that he thinks it might have been him to whom I was referring.

We have brought forward the measures in Part 4 because we understand the challenges that many locations across the country face when individuals cause significant damage, disruption or distress to communities, businesses and landowners. It is important to remember why we are introducing a new offence: to tackle individuals who cause significant harm. This could include unauthorised encampments within urban areas set up in local parks, car parks or on local sports fields. It could include fly-camping which is a huge problem within national parks and our natural beauty spots, where people park cars, campervans or motorhomes on land without permission and damage the land.

18:45

It is also important that we consider the people impacted by these harms. I will provide two examples. During the summer, facilities at a recreational site in Highworth in Wiltshire were off limits due to a safety hazard caused by an unauthorised encampment that left behind human excrement. In the same month, a cricket club in the New Forest was forced to cancel its games after a lock on the gate to the pitch was cut and an unauthorised encampment was then set up. The pitch was damaged, rubbish was left behind—and it was the members of that club who had to deal with these consequences, and the fear that this could happen again, with no ramifications for those causing the harm.

The Welsh National Trust pointed out that a Carmarthenshire beauty spot continues to be blighted by problems of human waste, vandalism and unlawful overnight encampments. Just this year, campers with portable angle grinders recently cut the lock on the service access gate to a beach and set up camp on the landscape, leaving the beauty spot strewn with litter and waste. The beach and surrounding area have also been subject to illegal felling and overnight parties, and footpath gates and posts have been chopped up and used for campfires. These problems have been going on for several years. I ask noble Lords: should those who commit significant damage such as this get away with it?

As I have said throughout the passage of this Bill, these measures do not target the Gypsy, Roma and Traveller community. As such, we believe that the measures are compliant with the ECHR and Equality Acts. I hope that the examples that I have given illustrate that. Enforcement will not be based on ethnicity or race; instead, the measures are focused on significant harms committed by anyone residing on land without permission.

The noble Lord, Lord Alton, asked about the extent to which the proposals take into account the Women and Equalities Select Committee report. We remain committed to tackling the serious disparities faced by the Gypsy, Roma and Traveller communities. We commend the value of the committee’s report and findings. We also seek to develop proposals addressing the levels of violence against women and girls. However, people engaging in harmful behaviours is a separate matter to the wider equalities strategy.

It is important to recognise that this is not a “catch all” piece of legislation; instead, the threshold for the new offence is high and is a proportionate means of addressing this issue. As such, there a few key points that I would like to clarify before I move on to the amendments. Setting up an unauthorised encampment in and of itself will not be a criminal offence. A person will not be caught by the offence if they leave the land when asked but will be caught if they return to the land. A person will not be caught by the offence—and this is the most important part—if they do not commit significant damage, disruption or distress. If they do commit damage, disruption or distress that is not significant, the amended powers under the existing Section 61 of the Criminal Justice and Public Order Act 1994 will come into play. These measures are therefore designed to proportionately deter and prevent particular behaviours.

I turn now to the amendments. Amendments 55ZA and 55ZB tabled by my noble and learned friend Lord Garnier and the noble Baroness, Lady Whitaker, have many overlapping features. They seek to provide that an offence is committed only when a person is trespassing on land having been offered a suitable pitch at a caravan site or negotiated stopping site. Site provision and harmful behaviours are two quite separate issues. On the question asked by the noble Lord, Lord Pannick, the facts of the case will determine whether an excuse is reasonable—this will be for the police and courts to determine—but it is not open to Travellers to say that they have any reasonable excuse to destroy property or land. There is no justification whatever for causing significant harm, disruption or distress. The lack of availability of a pitch, be it on a permanent authorised site or a negotiated stopping site, can never be an excuse for such conduct.

As I said, the fact of the unauthorised encampment is not in and of itself an offence. If significant harms are being caused, it is only right that the police have powers to tackle those harms, and those harms should incur enforcement action in the way that any other harmful behaviour would.

My noble and learned friend’s amendment goes one step further and would require local authorities to pay landowners for any damages caused by people on unauthorised encampments in areas where there are no other suitable sites. This would give a message to those who commit harmful behaviours that they should not worry about any repercussions as the local authority will pay for the damage caused. This is not a message that this, or, I believe, any Government, would want to send out.

Amendment 57, in the name of the noble Baroness, Lady Lister, would delay the implementation of the measures and potentially allow cases of significant harm to continue until there is a report and a debate in each House that discusses how Part 4 contributes to the level of entrenched inequality experienced by Gypsy, Roma and Traveller communities. She knows that I do not accept the premise of the amendment. I know why she has tabled it: namely, that these measures contribute to the inequalities experienced by GRT communities. As I said, the debate around inequalities and site provision is separate to the issue at hand, which is dealing with significant harms.

To get to the point that the noble Baroness is actually making, which is on the GRT strategy, she will be even less impressed by me tonight when I say that Ministers are currently developing their priorities with regard to the strategy. The levelling-up agenda will see opportunities increase for everyone by improving livelihoods across the country, supported through schemes such as the GRT education areas pilot fund and the levelling-up fund. I am afraid I have no more to add than I did last time: that my ministerial colleagues are currently developing their priorities around the work of the GRT strategy. Until that work has been completed, it is too soon to say what will be included in the strategy. I thought she might shake her head.

Amendment 55ZC, in the name of the noble Lord, Lord Paddick, would exclude vehicles that are a person’s home from the seizure power found in Clause 63, which enables property to be seized from individuals committing an offence under these new provisions. Seizure powers are not novel when it comes to enforcement action against unauthorised encampments. They are already conferred on the police in relation to a person’s failure to comply with a police direction to leave land under the trespass provisions in the Criminal Justice and Public Order Act 1994. It is right that the police should have an equivalent power in the context of the new criminal offence, where the level of harm is significant, for the offence to be committed before police would consider using, and are able to use, seizure powers.

As I said, if people do not commit significant harms or if they leave when asked, they will not be caught by the offence and will not risk having their vehicle seized. Without the power to seize vehicles, enforcement action is likely to be hindered and the harms can continue while people and their property, including their vehicles, remain on the land.

Police decisions to seize vehicles should continue to be taken in consultation with the local authority where appropriate. As is the case for existing powers, to which these new measures add, the local authority would need, where possible, to offer assurance that it has relevant measures in place to meet any welfare and safeguarding needs of those affected by the loss of their accommodation, particularly the vulnerable, before police take enforcement action. We expect the police to continue to undertake any enforcement action in compliance with their obligations with regard to equalities and human rights, and will continue to consider harm to local amenities and the local environment, and the rights of nearby residents, when coming to a view as to appropriate enforcement action.

Finally, Amendment 55AA would reintroduce a statutory duty on local authorities to provide authorised sites for Gypsies, Roma and Travellers. As I said in a previous debate, site provision and the issue of how we deal with people who cause harm are two separate matters and should not be conflated. The Government’s aim more generally is to increase the provision of Traveller sites in appropriate locations and to maintain an appropriate level of supply, but that should not hinder the introduction of these important powers to safeguard individuals and their property from harm.

The planning system, taken as a whole, is capable of meeting the needs of the Travelling community. It is designed so that the land use and accommodation requirements of all groups, including those who lead a nomadic life, are considered by local planning authorities. Local authorities and social housing providers are able to bid through the £11.5 billion affordable homes programme for funding for new sites. In addition, a statutory duty to provide sites would not be aligned with the current planning system, which does not impose statutory duties on local planning authorities to provide housing or specialist accommodation for any demographic, including those who require affordable housing, and older people.

A number of noble Lords raised the success of negotiated stopping sites in Leeds, an issue touched on in Amendments 55ZA and 55ZB. Again, this is for local authorities to make a decision on. Negotiated stopping sites are not a planning designation, but a local practical agreement between the local authority and Travellers as to where they can reside for a temporary period.

The noble Lord, Lord Young of Norwood Green, has discussed the issue of liaison committees with me. I will take that suggestion forward to my colleagues in DLUHC for their consideration. I am quite happy to be part of those discussions.

The arguments for or against the provisions in Clause 63 come down to one issue and one issue only: is it acceptable for a person to take their vehicle on to other peoples’ land without their permission and cause significant damage, disruption or distress? I know the answer that the British people would give to that question. If noble Lords vote through any of the amendments in this group, those who do so would send a clear message that such behaviour is acceptable. I therefore ask my noble and learned friend to withdraw his amendment.

[Lord Pannick (CB)]

I thank the noble Baroness for answering my earlier question. As I understood her answer, it was that there can be no reasonable excuse for causing significant damage or significant disruption. I point out to her that the defence under new subsection (6) is that the defendant would have a defence if they have

“a reasonable excuse for … failing to comply as soon as reasonably practicable with the request”

to leave. It has nothing to do with whether they have caused disruption, distress or damage; they have an absolute defence if there is a reasonable excuse for not leaving the land when asked to do so. That is why I put to her that, surely, it could be a reasonable excuse that there is nowhere else they can go. Would she like to reflect on that?

[Baroness Williams of Trafford (Con)]

As the noble Lord probably knows, that will be a determination for the courts to make.

[Lord Pannick (CB)]

I am simply anxious that the matter is not left on the basis that the Minister put it, because I respectfully suggest that that is not right.

[Baroness Williams of Trafford (Con)]

Perhaps we could discuss this further if that is amenable to the noble Lord, but I accept his point that it is not right to just leave it like that. In determining what is a reasonable excuse, it would be for the police and the courts to determine whether the excuse was reasonable.

19:00

[Lord Garnier (Con)]

My Lords, 15 noble Lords have spoken in this debate. Most of them have concentrated on amendments other than mine, which is hardly surprising. Three broad points have emerged from this debate which I hope are uncontroversial.

First, there is an undersupply of official local authority Traveller sites. Regardless of quite how far along the pendulum one places this, that must be a reason why there is a high incidence of trespass. The Government say this is a problem and I am sure others do as well, but the more interesting question is, what do we do about it? If I may say so with the greatest of respect to my noble friend, this is not just a planning matter. It is a wider public policy issue, and this Bill turns it into a criminal justice matter. It is not an answer to complain that noble Lords are conflating unlawful occupation and damage. The two may be linked; none the less, they need to be thought about with some degree of care and not by sloganising.

The noble Lord, Lord Pannick, reminded us about Clause 63(6)(a) and (b), which provide for the reasonable excuse defence. I happen to agree with him, and his recent intervention on my noble friend saved me from making a speech of an additional 10 minutes—for which there is much relief. It strikes me that Clause 63(6) provides a second incentive to local authorities to get on and provide more official sites. The first incentive is the compensatory damages which I expect them to pay. Secondly, if they, the police or the CPS seek to rely on the criminal offences described in this part of the Bill, and there are no sites and therefore it is a reasonable excuse, surely, we come back to the fact that there is an undersupply of official sites so please, let us do something about it. I entirely take on board what the noble and learned Lord, Lord Hope, said about the point at which it is realised that this is a good defence. It is not a question of me being righter and you being wronger. It is a question of sorting out the problem sensibly, pragmatically and economically, in a way which does not cause additional, prolonged and unnecessary distress to local residents such as the neighbours of the noble Lord, Lord Young of Norwood Green, or to the families and children within the Travelling community. It is not impossible. It just requires political will.

I beg leave to withdraw my amendment. What others do with theirs is a matter for them.

Amendment 55ZA withdrawn.

Amendment 55ZB

Moved by

[Baroness Whitaker]

55ZB: Clause 63, page 59, line 11, at end insert—
“(1A) The occupier, a representative of the occupier or a constable may only make a request under subsection (1)(d) if they have ascertained from the local authority within whose area the land is situated—(a) that there is a suitable pitch for P’s caravan or caravans and P’s other vehicles and property on a relevant caravan site, or(b) that, within 48 hours of their receiving notice of P’s presence on the land, a suitable pitch for P’s caravan or caravans and P’s other vehicles and property will become available within a negotiated stopping site in the local authority’s area.(1B) A “negotiated stopping site” is a site in respect of which an agreement has been reached between the local authority within whose area the site is situated and the trespassers which allows them to stay temporarily on a particular piece of land which is not an official site, in return for which the trespassers agree to certain conditions relating to, but not limited to, behaviour, tidiness of the site, the length of stay and payment for water, refuse collection and other utilities.”

[Baroness Whitaker (Lab)]

My Lords, I am extremely grateful to all noble Lords who have spoken so eloquently in this debate. It is of great importance to some very beleaguered communities. I too note the widespread and authoritative emphasis on enabling local authorities to provide enough sites. I understand that the Minister is bound to follow the instruction to implement a manifesto commitment and stick to the disproportionality of Clause 63, but I think we need to strike a better balance. I therefore wish to test the opinion of the House.

[The Deputy Speaker (Baroness Henig) (Lab)]

There being an equality of votes, in accordance with Standing Order 55, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such an amendment, I declare the amendment disagreed to.

19:04

Division 2

Ayes: 171

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Labour: 83
Liberal Democrat: 60
Crossbench: 16
Independent: 8
Green Party: 2
Conservative: 1
Bishops: 1

Noes: 171

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Conservative: 150
Crossbench: 11
Democratic Unionist Party: 5
Independent: 4
Ulster Unionist Party: 1

19:18

Amendment 55ZC not moved.

Amendment 55A

Moved by

[Baroness Bennett of Manor Castle]

55A: Clause 63, leave out Clause 63

[Baroness Bennett of Manor Castle (GP)]

My Lords, as I indicated in the previous discussion, I feel that this is a moral issue on which a line has to be drawn. I will not rehearse all the debates we had previously, but I want to pick up one point from the Minister, who said that Part 4 does not target the Gypsy, Roma and Traveller community. The Equality and Human Rights Commission said in its response to the government consultation that this is indirect discrimination that cannot be justified. It was of the opinion that this criminalisation of trespass would breach the public sector equality duty. No equality statements have been issued in regard to the proposed new offence in Clause 63, so I would like to test the opinion of the House. It will be up to every individual to judge according to their conscience. I beg to move.

19:20

Division 3

Ayes: 71

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Liberal Democrat: 54
Labour: 9
Crossbench: 4
Green Party: 2
Bishops: 1
Independent: 1

Noes: 167

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Conservative: 143
Crossbench: 15
Independent: 5
Democratic Unionist Party: 3
Ulster Unionist Party: 1

19:31

Amendment 55AA not moved.

Clause 64: Amendments to existing powers

Amendment 55B not moved.

Clause 65: Guidance on exercise of police powers in respect of trespassers on land etc

Amendment 56

Moved by

[Baroness Williams of Trafford]

56: Clause 65, page 64, line 43, at end insert—
“(6) The Secretary of State must lay before Parliament a copy of any guidance or revised guidance published under subsection (5).”Member’s explanatory statement
This amendment requires the Secretary of State to lay any guidance published under the section before Parliament.

Amendment 56 agreed.

Amendments 56A and 57 not moved.

19:32

Consideration on Report adjourned until not before 8.32 pm.