Police, Crime, Sentencing and Courts Bill

(Limited Text - Ministerial Extracts only)

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

11:55

Division 1

Ayes: 181

Noes: 157

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 70 and do agree with the Commons in their Amendments 70A and 70B in lieu.

70A: Page 46, line 35, at end insert the following new Clause—
“Administering a substance with intent to cause harm
(1) The Secretary of State must, before the end of the relevant period—
(a) prepare and publish a report—
(i) about the nature and prevalence of the conduct described in subsection (2), and
(ii) setting out any steps Her Majesty’s Government has taken or intends to take in relation to the matters referred to in sub-paragraph (i), and
(b) lay the report before Parliament.
(2) The conduct referred to in subsection (1)(a)(i) is a person intentionally administering a substance to, or causing a substance to be taken by, another person—
(a) without the consent of that other person, and
(b) with the intention of causing harm (whether or not amounting to an offence) to that other person.
(3) In subsection (1), the “relevant period” means the period of 12 months beginning with the day on which this Act is passed.”

70B: Page 195, line 27, at end insert—
“(ka) section (Administering a substance with intent to cause harm);”

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

My Lords, in moving Motion B, with the leave of the House, I will also speak to Motion M. Amendment 70, originally tabled by the noble Lord, Lord Ponsonby of Shulbrede, and passed by this House on Report, would require the Secretary of State to

“establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.

As I have made clear previously, the Government share that concern about spiking, whether it is spiking of drinks or by needles, which has prompted this amendment and we are taking the issue very seriously.

In September last year, my right honourable friend the Home Secretary asked the National Police Chiefs’ Council to review urgently the extent and scale of the issue of needle spiking. We still have much to learn, as the noble Lord acknowledged at the time, but it is clear from what the police have told us that the behaviour is not exclusively carried out with the intention of perpetrating a sexual assault. Sometimes, financial crime might be a motivation. Indeed, many reported incidents do not appear to be linked to any secondary offending at all. It seems that sometimes the act might be an end in itself, yet all examples of this behaviour are serious in their impact on the victim and in the fear and anxiety felt more widely by those seeking simply to enjoy a night out.

It is also clear that we need a response that goes beyond the criminal justice system and encompasses health, education and the night-time economy. In the Commons, therefore, the Government tabled Amendment 70A in lieu, which is drafted more broadly. It requires the Home Secretary to prepare a report on the nature and prevalence of “spiking”—which, for these purposes, we are defining as

“intentionally administering a substance to someone without their consent and with the intention of causing them harm.”

The report will also set out the steps that the Government have taken or intend to take to address it. The Home Secretary will be required to publish the report, and lay it before Parliament, within 12 months of Royal Assent.

I hope that this addresses the concerns that underpinned the amendment tabled by the noble Lord, Lord Ponsonby, but in a way that enables the Government to consider the issue in the round. In addition, the Government are looking at whether creating a new offence specifically of spiking would help the police and courts to tackle the issue. If we need to take action to do this, we will not hesitate to do so.

Amendments 141 and 142 provide for bespoke new offences to tackle so-called sex for rent. We are very clear that exploitation through sex for rent has no place in society and we understand the motivation behind the amendments. However, as I previously explained, there are two existing offences in the Sexual Offences Act 2003 that can be, and have been, used to successfully prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain. We recognise the need to stamp out this terrible practice and support those at risk of exploitation. Again, on Report I set out some of the actions that we have already taken, including producing updated guidance for prosecutors and measures in the forthcoming online safety Bill to tackle harmful content on the internet.

We recognise that we need to go further. We are determined to act on the concerns that have been raised on this issue, both in your Lordships’ House and in the other place. Accordingly, we will launch a public consultation before the summer to invite views on the issue of sex for rent and, as part of this, we will look at the effectiveness of existing legislation and whether there is a case for a bespoke criminal offence. Following our commitment to undertake a consultation on this issue, the Commons disagreed with the Lords amendment by a majority of over 100.

All sides of the House share the heartfelt desire of the noble Lord, Lord Ponsonby, to do more to tackle spiking and sex for rent. We are fully committed to doing so. We will publish a report on the nature and prevalence of spiking and the actions that we are taking in response, including consideration of the case for a bespoke offence, and we will be consulting before the summer on the issue of sex for rent. In the light of these clear commitments, I invite the House to agree Motions B and M. I beg to move.

[Lord Paddick (LD)]

My Lords, the amendments in this group were introduced by the Official Opposition and we supported them. We welcome the Government’s undertakings in Amendment 70A in Motion B to prepare and publish a report on spiking, for example of drinks, intentionally and without a person’s consent and with the intention of causing harm, so as to establish the extent of the problem and therefore to inform what measures need to be taken to address it.

We also welcome the Government’s commitment to undertake a consultation on whether the existing law in respect of requiring or arranging sexual relations as a condition of accommodation—so-called sex for rent—needs to be strengthened. The prevalence of the phenomenon and the lack of prosecutions under the Sexual Offences Act 2003, which the Government believe covers these scenarios, indicate that such action is likely to be necessary. We are grateful to the Official Opposition, particularly to the noble Lord, Lord Ponsonby of Shulbrede, for raising these important issues and securing government action to address them.

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[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

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

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

[Baroness Williams of Trafford (Con)]

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

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

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

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

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

Motion B agreed.

Motion C

[Lord Wolfson of Tredegar]

Moved by

That this House do not insist on its Amendment 71, to which the Commons have disagreed for their Reason 71A.

71A: Because police officers are already subject to a duty to cooperate during investigations, inquiries and formal proceedings and it would be premature to add to such provision pending further consideration by the Government.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I will also speak to Motionexpand-col4 K on secure schools, which is in this group.

The House will recall that Amendment 71 would introduce a duty of candour for the police workforce. The other place has now considered this amendment and rejected the proposed duty, without, I might add, putting the amendment to a vote.

The Government take police integrity and accountability extremely seriously. As has been outlined to the House previously, in February 2020 we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020, and therefore has the force of law.

For the benefit of the House, I will reiterate the extent and focus of this duty. It says:

“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness”.


A failure to co-operate is a breach of the statutory standards of professional behaviour by which all officers must abide, and could therefore result in disciplinary sanction. I therefore suggest again to the House that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in Amendment 71, because a breach of this duty could ultimately lead to dismissal. We are reluctant to dilute the existing measures in place to compel individual officers to co-operate.

This duty to co-operate was introduced in 2020, after the issues highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel. We are keen that this duty becomes rooted within the police workforce before considering any further changes to legislation. The recently commenced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a proper test for this duty. Noble Lords will also be aware that a response to the Daniel Morgan Independent Panel and the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public bodies. Before the Government respond to these reports, it is of course imperative that the Hillsborough families are given the opportunity to share their views.

We will continue to assess the impact of the existing duty on police co-operation with inquiries and investigations. As we consider the case for a broader duty of candour for public servants and bodies, we will determine whether the existing duty is sufficient to ensure public confidence. As for timing, I can assure the House that we will set out our conclusions later this year.

Given these considerations and the decision of the elected House, I respectfully ask the House not to insist on Amendment 71.

Turning to Amendment 107, the House will recall that the amendment sought to confirm that local authorities can establish and maintain secure 16 to 19 academies, either alone or in consortia. The elected House disagreed with this amendment by a substantial majority of 190. In inviting this House not to insist on the amendment, I remind noble Lords that there is no legal bar preventing a local authority setting up an entity capable of entering into academy arrangements directly with the Secretary of State, or indeed doing so itself. This is not prevented by the Academies Act. I therefore ask the House not to insist, on the grounds that this renders the amendment unnecessary and it could have disruptive consequences for the academies legal framework.

I appreciate that existing government policy is not completely aligned with the spirit of this amendment. But I want to be positive, and recognise the expertise of the local government sector and the critical role that it already plays. Local authorities have a long-established role in children’s social care and the provision of secure accommodation for children. I should therefore highlight that, in practice, there are already important ways in which local authorities can be—and already are—involved in academy trusts, which we would certainly be open to utilising also in secure schools. Trusts can, and do, procure services from local authorities; some local authorities have established spin-out companies specifically to provide services to trusts and maintained schools alike. In principle, there would be nothing to prevent a spin-off company entering into an agreement with the Secretary of State for Education to establish an academy trust.

Our vision for secure schools is to take a new and innovative approach to the delivery of youth custody and to engage visionary, child-focused providers—many of which are charities—in the running of establishments. It would therefore certainly be possible, for example, for a charity and a local authority to come together to put forward a bid to establish a trust in which both parties could have some involvement across both the governance structure and the delivery of services.

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[Lord Rosser (Lab)]

There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.

As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.

On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.

The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice

“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]

The Minister also made that point.

Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.

We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lords who took part in this debate. I will take matters fairly briefly, given the amount of other business before the House.

On the duty of candour, I emphasise the essential point that the disciplinary system provides clear sanctions that can lead to dismissal. We should not introduce criminal sanctions for the police alone. Ultimately, the inspectorate can determine whether forces are following the guidance. We will monitor that extremely carefully.

I do not want to take up the House’s time too much on the report, which has been published in the last half an hour. My right honourable friend the Home Secretary has already issued a statement, which noble Lords will be able to find online, but my understanding is that the Metropolitan Police has 56 days to respond formally to the report. The Home Secretary will of course return to Parliament to provide a full government response once the final report and responses have been received.

I am grateful to all noble Lords for their engagement on the issue of secure schools. I have tried to set out the legal position clearly. I hope that the undertaking that I have set out will be sufficient. Again, with apologies to the House for not dealing in too much detail with the new report, because I am sure there will be other opportunities to debate it, I beg to move.

Motion C agreed.

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Motion D

[Baroness Williams of Trafford]

Moved by

That this House do not insist on its Amendment 72, to which the Commons have disagreed for their Reason 72A.

72A: Because pending the Government’s full consideration of the Law Commission’s review of hate crime legislation, the Law Commission has identified adding sex or gender to this legislation could prove detrimental to efforts to tackle violence against women and girls.

[Baroness Williams of Trafford (Con)]

My Lords, I am grateful to the noble Lord, Lord Russell of Liverpool, for seeking to move the debate forward by tabling an amendment in lieu. Before I turn to the specifics of his Amendment 72B, I will say something about the wider context. The Government take the issue of violence against women and girls very seriously. The last couple of years has, sadly, seen some terrible incidents and I do not think that anyone could doubt that there is more to do.

The Government have ambitious plans in this area. We have debated them often enough in your Lordships’ House, such that I do not need to set out again everything that the Government are doing to tackle violence against women and girls, but I reiterate that this is an absolute priority for the Government. Although we might disagree on the best approach, all of us, and Members in the other place, are on the same side. All of us share the same absolute determination to do our very best to tackle these awful crimes.

I am glad that in tabling this amendment, the noble Lord, Lord Russell of Liverpool, is not pressing to add the characteristics of sex or gender to hate crime laws, making misogyny a hate crime, as it is colloquially known. I do not decry the motives of anyone who advocated that course of action but, as the Law Commission identified in its review examining the question of whether to add sex or gender to hate crime laws, this amendment is not the right course of action.

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I thought the noble Baroness, Lady Bertin, also gave a powerful speech. She complained about a lack of grip and leadership. Well, her noble friend the Minister has leadership qualities; we see them every day in this House, and this is an opportunity for her to show that leadership. I look forward to the Minister’s response. We will certainly support the noble Lord, Lord Russell, if he chooses to press his Motion to a vote.

[Baroness Williams of Trafford (Con)]

My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a very interesting debate. Part of what has been interesting for me is hearing the differing views on misogyny across the House. This goes to the heart of the difficulties of this issue. The noble Baroness, Lady Jones of Moulsecoomb, asked if my noble friend Lord Wolfson was making prestigious notes. I wondered if he was making prodigious notes, but they might be both prestigious and prodigious—I do not know.

I thank all noble Lords who have taken part. I will restate three important points that I made in my opening remarks, as well as make some further points that were asked about. First, we are still pursuing the commitment that we previously made on data recording. I quote the comments that I made this time last year:

“I advise the House that, on an experimental basis, we will ask”—


not mandate, but ask—

“police forces to identify and record any crimes of violence against the person, including stalking and harassment, as well as sexual offences where the victim perceives it to have been motivated by a hostility based on their sex. As I have said, this can then inform longer-term decisions once we have considered the recommendations made by the Law Commission. We will shortly begin the consultation with the National Police Chiefs’ Council and forces on this with a view to commencing the experimental collection of data from this autumn.”—[Official Report, 17/3/21; col. 371.]

As the noble Lord, Lord Russell of Liverpool, pointed out, that was autumn 2021. I have absolutely voiced my disappointment on that. I am pleased that the wheels are in motion, albeit moving more slowly than I had hoped. We are making some progress.

The second point is that, before the Summer Recess, we will launch the public consultation on a new offence of public sexual harassment. I think that that reinforces the point made by the noble Baroness, Lady Fox.

Thirdly, the Law Commission, having studied this issue and a variety of possible solutions, recommended against making misogyny a hate crime. I am grateful to the noble Baroness, Lady Kennedy of The Shaws, for her points. I know that that is a source of regret for some noble Lords, but we cannot ignore the firm advice of experts that legislating in this way could do more harm to women than good. No one wants that outcome.

The noble Lord, Lord Russell of Liverpool, made an interesting point about Cara McGoogan’s article in the Daily Telegraph. The points that he raised about racism, misogyny and domestic violence within the police are being looked at by the noble Baroness, Lady Casey, and Dame Elish Angiolini. I know that we will get on to Child Q this afternoon when I repeat the Urgent Question. It is not a point that I dismiss at all; we all have to get to grips with the culture of the police.

The noble Baronesses, Lady Fox and Lady Kennedy of The Shaws, talked in different ways about the internet translating into real life. Obviously the online harms Bill is coming up. I do not want to give a complete prequel to that, but in that Bill we will need to consider the balance between free speech and protecting our children, women and girls. The noble Lord, Lord Ponsonby, referred to this and, as a parent, I am glad that my children had grown up by the time these problems began to surface, but I worry for the children, women and girls of the future.

To conclude, we are continuing to explore all options to tackle violence against women and girls and we are taking forward real change to achieve that. I invite the noble Lord to withdraw his amendment and I commend Motion D to the House.

[Lord Russell of Liverpool (CB)]

My Lords, this has been an interesting 55 minutes or so. We always seem to be at our finest when we discuss problems that a lot of people seem to agree are insoluble, which is disappointing in a way. It would be nice to talk about problems that are solvable.

I am grateful to all noble Lords who have spoken and to the three men who managed to stand up. Essentially, to some extent I apologise, as I feel I must, on behalf of many of my sex. The attitudes of an awful lot of males are a concern and are shaming. Unless more of us stand up and talk about it, it probably will not go away.

The noble Baroness, Lady Kennedy, is a pioneer in this area. I again recommend that all noble Lords read her report. When I started reading the preface, I realised that I was reading a report unlike most others I have read—and, in talking to her before we came in this morning, I discovered why: the noble Baroness wrote it herself and that does show. It is cogent, it is spirited, it is clear in its intent and it communicates brilliantly. So I recommend that more Ministers and noble Lords, when they put their names to a report, should write the preface themselves rather than get somebody else to do it. The noble Baroness’s point that what she is trying to do in her report is focus on egregious, unpleasant, aggressive and harmful actions, not thoughts, is also really important. We all think things that perhaps we should not from time to time. Mercifully, most of us do not act on them—or, if you get to my age, you probably forget them. At my age, the most important thing is to learn new things more quickly than you forget old things.

I take the point made by the noble Baroness, Lady Fox, about women’s freedom. But to suggest in some way that what we propose is potentially to label all men as misogynistic—and to send a message to all women that all men are basically misogynistic—is perhaps, might I suggest, slightly decrying the intelligence and perspicacity of members of the female sex to work out for themselves when something is genuinely misogynistic in a very unpleasant way and when it is less harmful. The noble Baroness is particularly skilled at talking about absolutes and problems. It would be great if we could move on and perhaps focus more on solutions than on the problems that are in the way of trying to find solutions.

My noble friend Lady D’Souza made an excellent point. We need to be careful that the law of unintended consequences does not lead us, in a sense, to suppress when what we are trying to do is liberate. I say to the noble Baroness, Lady Jones, that if she sees that taxi driver again I am sure she will give him a piece of her mind—or will change her accent to talk a bit more like me, so he will think that she is even posher than she really is.

I say to the noble Baroness, Lady Bertin, that it is always good to hear from the Government Back Benches. She made the good point that if you make a commitment, you should be able to keep it. The Minister has been frank and honest about some of the problems the Government have encountered, but I come back to the point I made earlier: this should and would have been foreseeable if they had done the proper analysis much earlier of what was implied by the commitment they were making.

The noble Lord, Lord Paddick, is far more skilled in these details than I am, and in particular on the law of unintended consequences in how one puts laws together and applies them. He makes a very good point but, again, there is the incredible importance of recording misogynistic data, so we actually know what we are talking about instead of just guessing.

The noble Lord, Lord Ponsonby, shared his direct experience as a magistrate and it was very compelling. If it is racially motivated, you have to fess up and say that up front, but if it is equally or more egregious, you do not have to. The fact that it is optional tells you that we are barking slightly up the wrong tree.

Finally, I turn to the noble Baroness’s contribution. What is so frustrating is that we spend so much time talking about all the problems that get in the way of trying to do something about this. We do not hear very much about prospective solutions. To some extent that is what Kit Malthouse invited us to do and committed the Government to doing—trying to find solutions.

On the point about asking police forces to comply with this rather than mandating them, I disagree with asking them. I actually think that we should mandate. Police chiefs are used to having a variety of things mandated by the Home Office, so would not be surprised or shocked. They might not particularly like it if the Home Office did so in this case, but I would strongly encourage the Government to think about doing that.

It is worth reading Hansard to see what happened when the Commons was considering our amendments. The vast majority of time in the early part of that debate was spent on the Newlove amendment, with speakers from all sides of the House, including a considerable number of Conservative Back-Benchers, particularly women. There was also a prominent man, the ex-Secretary of State for Justice, Robert Buckland. He has been intimately involved in helping to develop this amendment. I have also involved the noble and learned Lord, Lord Judge, in thinking through the validity and force of what we are talking about.

There is a growing concern and voice in another place that we need to stop talking about problems; we need to commit to doing solutions. So, for the reason that I feel that the soles of the feet of Kit Malthouse deserve to be subjected to a rather higher temperature than I think he feels at the moment, I would like to test the opinion of the House.

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13:46

Division 2

Ayes: 198

Noes: 155