Early Legal Advice Pilot Scheme Order 2022

Baroness Barker Excerpts

Thursday 10th March 2022 Grand Committee

Motion agreed.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

My Lords, the Committee will adjourn for a few moments until the people involved in the next business are in place.

Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021

Baroness Barker Excerpts

Wednesday 30th June 2021 Grand Committee

Motion agreed.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

That completes the business of the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.

Committee adjourned at 4.39 pm.

Independent Review of Administrative Law Update

Baroness Barker Excerpts

Monday 22nd March 2021 Lords Chamber

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

I am grateful to both noble Lords for their questions and comments. I am sure that this is a matter which we will be debating on a number of occasions in this House, so this evening I am going to be relatively brief, not least because the position of the Government is, as we have said, that we would like to consult on a number of matters, and consultation means just that.

Turning first to the comments of the noble and learned Lord, Lord Falconer of Thoroton, I join him in paying tribute to work done by the noble Lord, Lord Faulks, and the other members of this committee. They have done sterling work under the great pressure of a prevailing pandemic, and I am sure the whole House is grateful to them for the work they have done. I was very pleased to hear the praise given by the noble and learned Lord to the committee. Last August, he was tweeting that the Faulks committee was there to “dismantle judicial review.” I am pleased to see that, while the noble and learned Lord may tweet in haste, he has read the report and repented at leisure.

As far as publishing the evidence is concerned, we will publish the complete set of non-government submissions received by the panel next week once we have ensured that such publication is GDPR-compliant. That will be followed by a summary of the submissions by government departments to the panel’s call for evidence.

On ouster clauses, the noble and learned Lord used the word sinister. There is nothing sinister about them. There are two questions here: first, should one have an ouster clause at all? That is a matter for Parliament. Secondly, if there is an ouster clause, should it be enforced by the court? That is debated in the report and in the Government’s response to it. It is of central importance, which goes to the heart of the doctrine of the sovereignty of Parliament. Perhaps I might say, without being flippant, that on this point public law is too important to be left only to public lawyers; that is why we welcome a broad consultation. I am sure that there will be debates on these matters in the future, in this House and in the other place.

As we have set out in our response, the question is essentially whether ouster clauses are being applied by the courts in the manner in which they are drafted and passed by this House and the other place. As to whether an Act of Parliament would be needed, which I think was the noble and learned Lord’s last question, it may well be, depending on which issues are proceeded with. For example, if we proceed with the proposal for a suspended quashing order, that might well have to be done by primary legislation. The Supreme Court in the case of Ahmed concluded that the common law position was that a suspended quashing order was not available.

I now turn to the questions from the noble Lord, Lord Marks of Henley-on-Thames. First, on Cart, the panel’s analysis is, as he says, very thorough on this point. The evidence shows that only a very small percentage of this type of judicial review is ever successful. We do not feel the need to redo the consultation exercise carried out by the panels in that regard; we are focusing our consultation on how best to give effect to the recommendation in the panel’s report.

On suspended quashing orders, I note and broadly welcome the noble Lord’s support for these as a matter of principle. Obviously, there are questions about how they would be implemented; I look forward to discussing that matter with him in due course. I hear what he says on ouster clauses and I have obviously also read the paragraphs to which he referred. I think where he got to was that the position on ouster clauses would be given robust scrutiny by Parliament. I welcome robust scrutiny by the noble Lord and, indeed, by other noble Lords, but the panel said that there are circumstances in which it may be appropriate for Parliament to oust or limit the jurisdiction of the courts if there is sufficient justification for doing so. Given that, we think that it is right to consult on that question.

The noble Lord makes the point that, if one is to have a prospective remedy, it is important in the interests of justice to ensure that people who may have been unfairly affected by the decision are considered. We are clear that there must be a means by which a court can make an order with retrospective effect if the circumstances require it. However, with respect to a court making a suspended quashing order, we would like to consult on whether that should be an available option and, if it is, the circumstances and safeguards that that option would bring with it.

I hope that I have responded to all the points raised by both speakers. I will check the Official Report to ensure that I have done so.

[The Deputy Speaker (Baroness Barker) (LD)]

We now come to the 20 minutes allocated for Back-Bench questions. I ask that questions and answers be brief so that I can call the maximum number of speakers.

Domestic Abuse Bill

Baroness Barker Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[The Deputy Speaker (Baroness Barker) (LD)]

My Lords, we now come to the group beginning with Amendment 48. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 48

Moved by

--- Later in debate ---

Amendment 49 agreed.

[The Deputy Speaker (Baroness Barker) (LD)]

We now come to the group beginning with Amendment 50. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 50

Moved by

--- Later in debate ---

[The Deputy Speaker (Baroness Barker) (LD)]

We now come to the group consisting of Amendment 52. Anyone wishing to press this amendment to a Division must make that clear in debate.

Amendment 52

Moved by

Motoring Offences Review

Baroness Barker Excerpts

Thursday 7th July 2016 Lords Chamber

[Lord Faulks]

The noble Lord makes a fair point about the delay. We do, however, intend to move to a public consultation before the end of the year, with a view to bringing forward any legislative changes that are necessary later in this Session.

[Baroness Barker (LD)]

My Lords, two years ago the Justice Secretary said that this review was necessary in order to make our roads safer. Is that still the purpose of the review, and will it apply to careless drivers as much as to other road users?

[Lord Faulks]

This is a difficult area. The distinction between careless driving and dangerous driving, although long established, does not please everybody. There are always difficult balances between assessing the culpability of driving and the effect of driving. Relatively minor episodes of careless driving can cause serious injury; very dangerous driving can sometimes not cause much in the way of harm. It is a difficult matter. It is also important to establish some proper correlation between the sentencing for driving offences and sentences, say, for dishonesty or assault cases and that sort of thing. It is a difficult matter, but we are proceeding.

Marriage: Humanist Ceremonies

Baroness Barker Excerpts

Thursday 21st January 2016 Lords Chamber

[Lord Faulks]

What Parliament decided, in Section 14 of the Marriage (Same Sex Couples) Act 2013, was of course that the Secretary of State should arrange a review, which the Secretary of State did—that is the Law Commission review—and that he has a power rather than a duty to make the order which the noble Baroness refers to. It is of course quite right that Scotland has operated a different arrangement, whereby you may go to a registry office and have a schedule permitting you to get married anywhere. Marriages have taken place on the top of a mountain and in the middle of a loch, identified only by a GPS reference. However, these are serious matters. The Government think it necessary to consider marriage as a whole and it is interesting that the Law Commission’s thorough report does in fact not recommend simply activating that order-making power, as the noble Baroness will have seen.

[Baroness Barker (LD)]

My Lords, following that answer, can the Minister confirm that the system in Scotland is that the celebrants are registered rather than the locations where the ceremonies take place? That is the material difference. However, opinion polls consistently show public support for humanist marriages, so can he tell us why the Government keep trying to kick this into the long grass rather than using the powers that they have to bring it about?

[Lord Faulks]

The noble Baroness is quite right of course that it is a celebrant-based system. A schedule is issued by the register office stating where the marriage can take place, and the celebrant then goes back to the register office and the matter is registered there. The Government have considered the matter and will continue to do so, and will bear in mind the very cogent representations that have been made on behalf of humanists. At paragraph 3.20 of its report, the Law Commission said that,

“activating the statutory order-making power to permit marriages according to the rites of non-religious belief organisations is simply not, in our view, a viable option”.

The Government have to take that into account and consider the integrity of marriage as well as, of course, the wishes of individuals.

Prison Service: Trans Prisoners

Baroness Barker Excerpts

Tuesday 24th November 2015 Lords Chamber

Asked by

[Baroness Barker]

To ask Her Majesty’s Government, in the light of the death of Vicky Thompson, whether they will review the Prison Service’s treatment of trans prisoners.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I offer my condolences to Vicky Thompson’s family and friends. Every death in custody is a tragedy and we are committed to reducing their numbers. While investigations are ongoing it is inappropriate for me to comment on the circumstances of Miss Thompson’s death. The policy on the care and management of prisoners who live or propose to live in a gender other than one assigned at birth is currently under review.

[Baroness Barker (LD)]

I thank the Minister for that Answer. Recent events have shown that placing trans women in male estates is dangerous. Does the Minister agree that trans prisoners should be housed in the estate of their acquired gender in the first instance and moved to another estate only following a thorough investigation that rules out all other safe alternatives?

[Lord Faulks]

My Lords, Prison Service Instruction 07/2011 sets out the National Offender Management Service’s policy on the care and management of prisoners in the circumstances outlined by the noble Baroness. It suggests that, in the first place, somebody’s gender, whether their original gender or one that they have chosen under the Gender Recognition Act, should be reflected in where they are housed. Nevertheless, there is a degree of discretion allowed to the Prison Service, which it exercises, to make sure that someone in that situation is treated with appropriate care, consideration and sensitivity.

Mental Capacity Act 2005 (Select Committee Report)

Baroness Barker Excerpts

Tuesday 10th March 2015 Lords Chamber

[Baroness Barker (LD)]

My Lords, I too was a member of the committee and I wish to thank the staff who assisted us in our deliberations. I really want to thank the noble and learned Lord, Lord Hardie, whose chairmanship was outstanding. I also want to put on record our thanks to Hammersmith and Fulham Mencap. The Minister and the noble and learned Lord, Lord Hardie, and I spent a memorable morning with Hammersmith and Fulham Mencap.

On my shelves I have what has now become something of an artefact. It is the code of practice from the original passing of the Act in 2005. There are not very many hard copies of that remaining. The visit to Hammersmith and Fulham reminded me, in ways that I needed to hear, that much though we had been through a deliberative process of determining ethical principles and standards, what we passed in that legislation was dramatically important to individual people who lacked capacity.

It was almost inevitable that legislation that was founded on principles which include a presumption that every individual has capacity and that individuals retain the right to make what may be seen as eccentric or unwise decisions was always going to be difficult to implement. I think that we in this House, at the time we did that, knew that the need for this legislation would only grow. Not only do we have a growing number of people with learning disability, but we also have a growing number of people with dementia. What we found, as the noble and learned Lord, Lord Hardie, set out so eloquently in his introduction to this report, was that the implementation of this Bill has been patchy. What I think does not perhaps come through clearly enough from our report is that where there were outstanding examples of good implementation of the report it was often down to the lone efforts of an individual practitioner—quite often on the front line. Some of the poorest practice was institutional and some of the institutions that are not implementing this legislation as issued are the very ones to which it was directed.

I am disappointed that the Government did not take up our suggestion that there should be an independent forum. The suggestion was put forward in light of the experience of the noble Baroness, Lady Shephard, as part of the Mental Health Act Commission that was set up after the passage of the Mental Health Act in 1983. That legislation has been implemented well. The professions have a clear understanding of what their obligations are and the implementation is and was closely monitored by Mental Health Act commissioners. That is why we made our recommendation.

I share the widespread reservations about the proposed mental capacity forum. I do not see how it will have the power or capacity to challenge some of the deep-seated resistance there is, not least among professionals, to the implementation of the law. I challenge the Minister to publish transparent information about the forum so that it is accessible to all who wish to apply to be on it and to ensure that it comes into existence in time for the forthcoming consultation by the Law Commission on the important matter of DoLS. I do not wish to talk about DoLS today. The noble Baroness, Lady Browning, and the noble and learned Lord, Lord Hardie, indicated the importance of that subject. I would simply say that although we were dedicated as a group, and we had great expertise at our fingertips on the Select Committee, we only began to scratch the surface of the issue. We did not, for example, consider what happens to specific groups of people who are deprived of their liberty, such as young people as opposed to old people, and in different settings. There is need for greater research.

I wish to focus on one or two parts of our report that might otherwise go unmentioned. Section 44 of the Mental Capacity Act deals with the criminal law provisions where a person who has care of someone who lacks capacity is guilty of neglect or ill treatment. Very few cases have been brought under Section 44. In fact, there were 85 cases in 2012, of which 36 were found guilty. We are talking about an Act that applies potentially to 2 million people. Solicitors and barristers who, by nature, are people not given to bold statements told us in terms that Section 44, as currently written, is thoroughly deficient. We were greatly assisted by colleagues from the Law Society of Scotland, who pointed out that under the Adults with Incapacity (Scotland) Act 2000 there is no need to establish whether someone had capacity or whether the perpetrator of an act knew that the person had incapacity in order to determine that a crime had taken place. I therefore find myself in agreement with those who said that Section 44 needs to be changed as a matter of urgency. If a crime is perpetrated against someone, it matters not one jot whether the perpetrator knew that they lacked capacity.

On the matter of professionals, professional bodies and their implementation of the Mental Capacity Act, chapter 4 of the report is hard hitting, and rightly so. I say to people who think that we are being unduly hard, particularly on the medical profession, that they really should go and look at the evidence provided to us in writing and orally by bodies such as the Royal College of General Practitioners. I understand the point that the noble Baroness, Lady Finlay, was making and it is true that this legislation has a disproportionate bearing on different parts of the medical profession. The bearing that it has on an A&E practitioner is different from the way in which it is likely to impact on the professional judgment of a psychiatrist. None the less, the medical profession as a whole has to come to some agreement on, and have some consistency about, the way in which it applies this law. It was not good enough for the Royal College of General Practitioners to say to us that GPs would not routinely spend time with patients making advance statements because it is “not part of” the GP contract. Well, it is the law. I have to say that I had a great deal of sympathy with the Royal College of General Practitioners when it said that it did not understand what the status of such a document would be and how it would be viewed by other people in other parts of the NHS. It seems to me that the noble Baroness, Lady Finlay, is right. There is a need for consistency across the NHS.

Our visit to the Court of Protection was truly impressive. I am very glad that the Court of Protection is going to get more staff and that the process of making an application to it has become a great deal easier. We passed a great piece of legislation in 2005 but we need to increase the quality of the monitoring and evaluation of its implementation across government.

Criminal Justice and Courts Bill

Baroness Barker Excerpts

Monday 20th October 2014 Lords Chamber

I hope that those remarks are helpful and serve to explain why we have taken the approach that we have. I regret that I do see serious complications in the amendments of the noble Baroness. We cannot accept them. I hope that on reflection she will feel able to withdraw Amendment 42 and not press Amendment 43A.

[Baroness Barker (LD)]

I have listened at considerable length to the arguments put by the noble Baroness, Lady Finlay, and I have also discussed the matter in some detail with my friend in another place Paul Burstow, who was responsible for all the research work that went into this. He worked with the main investigators of Mid Staffordshire NHS Foundation Trust and Winterbourne View. I invite the Minister to look at Clause 20(1)(b), which refers to the duties and failures of care providers. I understand where the fears expressed by the noble Baroness, Lady Finlay, come from, but they may be ill founded. The whole purpose and intent behind Clause 20 was to make sure that never again will front-line staff be jailed for the offences that they committed while the senior managers and directors of those organisations walk free, as happened in Mid Staffordshire and at Winterbourne View. All these clauses are exactly designed to ensure that staff are not hung out to dry and have the effect that when complaints are raised against staff—as they frequently are—they will, at last, be able to cite the shortcomings and failings of their employers as background in their own defences. This is a point that needs to be drawn out of this debate.

[Earl Howe]

My Lords, this is Report stage so I shall be brief, but I am grateful to my noble friend for the point she has made. I understood from the noble Baroness, Lady Meacher, that she was not proposing to speak to Amendments 45 and 46. Nevertheless, the noble Baroness, Lady Finlay, raised a point about the unevenness between the two offences. However, I agree with my noble friend Lady Barker. If we interfere with the wording as drafted in the Bill, we are in serious danger of doing the very opposite of what the noble Baroness, Lady Finlay, seeks, which is to have the two offences broadly on a par with each other.

Criminal Justice and Courts Bill

Baroness Barker Excerpts

Monday 21st July 2014 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, I thank the noble Baroness, Lady Thornton, for her amendments to Clause 28, because it is clearly very important we get this right. In particular, I support the principle of Amendment 36C, which clarifies that the images can be “real or simulated”. I know the Government have amended the Explanatory Notes to clarify this point, but it seems to me that what is in the statute will be the key issue when the case is before the courts. With the increasing use of computer-generated images, surely it is right for us to clarify that these images are covered. The importance of such clarification is made in relation to children in the Protection of Children Act 1978 with the definition of “pseudo-photographs”. Why should a similar clarification of “real or simulated” not be made here when we are dealing with extreme pornographic images?

[Baroness Barker (LD)]

My Lords, I thank the noble Baroness, Lady Thornton, for explaining to the Committee the details of the meeting that a number of us attended last week. It was one of the most horrible meetings I have ever had to attend, but it was extremely informative. It showed the way the BBFC very diligently performs its role and achieves what most people in Britain want to see: it enables adults to view as much as they could possibly wish to—provided that it does not harm anybody else—but it is quite clear in the classification of materials and tries to limit those materials to which it would be preferable that there was no access.

The noble Baroness, Lady Howe, is absolutely right—she has much more experience of dealing with these matters than many of the rest of us. The key factor we kept coming back to was whether something was real or realistic or could be assumed to be real for a number of reasons. We were shown a particularly horrible image that was a cartoon. There was no way that anybody could view it and consider it to be real, but what it showed was truly gruesome. In the end the BBFC had not classified it.

The Minister may say there are different elements in these amendments that are technically deficient. However, I hope that he might be able to accept some of the points being made. This is a work in progress. The way the internet is taking over this form of very adult entertainment is still unfolding; the law is clearly currently way behind the producers of it and needs to be changed. This may not be the definitive answer, but the noble Baroness, Lady Thornton, has put forward some very helpful suggestions.

--- Later in debate ---

[Baroness Brinton (LD)]

My Lords, I added my name to Amendments 37, 38 and 39 and I shall not repeat the very good points made by my noble friends Lord Marks and Lady Grender. I shall start from the point at which my noble friend Lady Grender ended: namely, the activities among our teenagers and very young adults which may not always be fully sexually explicit, and certainly may not be intended to be pornographic. A large number of students both in schools and colleges are being asked by their boyfriends or sometimes—though it is unlikely—girlfriends to have photographs taken of them which I am afraid are being used against them. The noble Baronesses, Lady Berridge and Lady Morris, made valid points about the distinction between different types of photograph. It may be that that will be addressed in the discussion that I hope the Minister will have with those who have put forward both sets of amendments.

The principle in our amendments is clear: that the crime is the publication of those photographs or other electronic media, because it is that over which the person in the photograph feels they completely lack control. It is used as a form of abuse. Increasingly what is used as a key element in cases of stalking—indeed this morning there is a case in the paper for which a court date has just been set in December in Scotland—is the threat to publish not only publicly but also among family and friends. The key point of our amendment is that when it becomes a tool of abuse, that in itself should become a crime.

Because this is about making a law, there is, understandably, little focus on the victim. I will highlight the work that the NSPCC and ChildLine have been doing with young people. They have a very good app called Zipit that is intended to teach secondary school pupils how to respond if their boyfriend or girlfriend asks them for a photograph that is inappropriate, using silly photographs and silly text underneath that might say something like, “You’re having a laugh”. That is beginning to work. The work that PSHE staff are doing in schools to make young people understand the dangers of this are vital if we are not to end up with a generation of young people thinking that it is acceptable to play at this. When they get into stronger relationships where they may have a partner over some period of time it will be second nature; then, if they want to get their own back, we will end up in a position where these sexually explicit photographs start to be exported.

I am concerned that one thing that we have not looked at is the circulation of the image after initial publication. There has been some discussion online about trolling and about abuse of the victims by others. I hope that the Minister will be prepared to look at this. It may be difficult to pin down who has circulated the image but we have seen, in recent cases of trolling, that people who have recirculated offensive and defamatory literature can be taken to court for continued publication. That should also be true in this case.

[Baroness Barker]

My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.

To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.

The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.

[Baroness Thornton]

My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.

Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.

We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,

“with the intention that he or a third person will”,

gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.

Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.