Anti-social Behaviour, Crime and Policing Bill

Baroness Berridge Excerpts

Monday 20th January 2014 Lords Chamber

[The Lord Bishop of Ripon and Leeds]

My Lords, I am very grateful to the noble Lord, Lord Deben, for the way in which he introduced this debate and to the Minister for those comments and his response. My colleague the right reverend Prelate the Bishop of Newcastle has added his name to this amendment, thereby expressing the concern of these Benches, in particular with regard to the work and worship at Westminster Abbey and St Margaret’s parish church. I am sorry that the right reverend Prelate the Bishop of Newcastle is unable to be with us today. However, it is a particular delight to welcome the very reverend Dean of Westminster, as he exercises his constitutional right to sit on the steps of the Throne of this House.

The Abbey has suffered, as the noble Lord, Lord Deben, was saying, as a result of what is often quite unintentional disturbance of its worship, and its role as a place of prayer and the worship of God. It is important to affirm absolutely both the right of protest, with the human rights which are involved in being able to protest, and, at the same time, the right and duty of the Abbey to maintain its pattern of prayer to God, particularly in view of the way in which it stands for the spiritual nature and concerns of this nation, and of our monarch and the Royal Family. Our daily prayers here with your Lordships stress particularly the needs of this realm and of the monarch. Westminster Abbey is a unique testimony to prayer for those needs, and there is a need at this point to ensure that the Abbey is able to fulfil that particular task which it has in the life of both the church and the nation. I support the amendment and am grateful to the Minister for his generous words about it.

[Baroness Berridge (Con)]

My Lords, I, too, support the amendment. Just hearing the outline of the different authorities involved when there are issues with protests outside the front of Parliament leads me to the view that without this amendment, enforcement has not perhaps been as easy as it could be. I take into account that Westminster Cathedral does not have this issue, merely by virtue of the fact that the Abbey and St Margaret’s are positioned outside Parliament.

We have done much hard work to ensure that the work of the House of Commons is not disturbed; we should afford the same privileges to the Abbey and St Margaret’s, which are in this unique position. Perhaps most persuasively, it is not just that there is worship there and wedding services. I am aware of this because I often cut through the Abbey’s yard. The young people being educated there and the people living there are, I am sure, also disturbed by the protests. This is a reasonable accommodation of the right to protest and the freedom of worship, while allowing people in their residential and educational roles to be uninhibited. I will be supporting the amendment.

[Lord Rosser]

The Minister has reminded us that when a very similar amendment was considered in Committee he, as the Minister, said that the issue was how the existing by-laws were enforced rather than that the existing powers were inadequate. It was in that context that he proposed holding the meeting to which he referred, and which has now been held. It would be of some interest if the Minister were in a position to tell us, in the light of that meeting, why on the face of it Westminster City Council and the police were not able to enforce the powers that he said were already there and were adequate to deal with the situation that we are addressing.

Presumably, Westminster City Council must have had something to say on that, as did the police, since they were present at the meeting which the Minister held. He said in Committee that he needed to satisfy himself that the existing provisions were not being enforced by the council and the police, so it would be helpful to know what those two bodies had to say when they were asked why the existing provisions were not being enforced.

I appreciate that the Minister has said that there are different penalties. He referred to penalties of £5,000 against the £500, I think, under the powers for Westminster City Council, and to differences over no pre-notification for noise. That does not fully explain why the existing by-laws were apparently not being enforced. It would be helpful if the Minister could comment on that.

Since the Minister said that it is his intention to leave it to the House, I would make just one other point. The Minister said in Committee—I use his own words—that we need to be,

“very careful about taking any action that may impact disproportionately on people’s right to protest and their freedom of speech”.—[Official Report, 25/11/13; col. 1215.]

How is the Minister satisfied that we are being careful about not taking any such action, since I assume that that matter will have been discussed at the meeting which was held and to which he referred?

Syrian Refugees

Baroness Berridge Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Taylor of Holbeach]

The noble Lord rightly points to the need for a political solution because that is the long-term solution to all these difficulties. The catastrophic turn of events in Syria points to the need for finding a solution in which freedoms are established and people can enjoy freedom of expression and freedom of worship in ways that we would consider acceptable in this country. It can be achieved only through success at the conference, which I believe is on Wednesday. Let us wish the conference well.

[Baroness Berridge (Con)]

My Lords, I am grateful to the Minister for clarifying that 1,100 people have been granted refugee status, but I think it would be useful to have further clarification. How many of those people were already in this country when they applied for asylum, and how many have very dangerously made their way to our shores and claimed asylum? It seems that with the latter situation we are enabling some of the most able who can travel to come to our shores to get refugee status and not some of the most vulnerable, who have been processed by the United Nations and who are desperately in need of refugee status, to gain that status. Can the Minister reassure us that, post Geneva II, there will be a reconsideration of the Government’s policy, particularly in relation to our taking orphans from these camps who have no basis to go back to Syria, whatever the political settlement may look like?

[Lord Taylor of Holbeach]

I make no commitments on the latter point, and I cannot give a breakdown of the location of the asylum seekers—the 1,100 Syrian nationals—who have been successful in their applications. I know that 1,566 Syrians applied for asylum in the year ending September 2013, the latest data we have. The UK is the largest recipient of asylum seekers from Syria behind Germany and Sweden.

Anti-social Behaviour, Crime and Policing Bill

Baroness Berridge Excerpts

Monday 2nd December 2013 Lords Chamber

[Lord Faulks (Con)]

My Lords, I would like to address the House on this clause. As the Minister will be aware, I am very much in favour of the architecture of this Bill and very sympathetic to its aims. However, as in life, not everything is perfect, and I fear that I cannot give my endorsement to this clause, which gives the court additional powers to order possession in relation to secure and assured tenancies in the event that the,

“tenant or a person residing in the dwelling-house has been convicted of an offence which took place during, and at the scene of, a riot in the United Kingdom”.

That distinguishes it from other parts of Part 5, which are concerned with matters that take place in the locality—or the vicinity, as the noble Lord, Lord Greaves, would have it.

I understand that the additional ground for possession has been included in the Bill to reflect the seriousness with which the Government view participation in riots, particularly those on a scale seen in this country during the summer before last. Those who committed offences during the riot on that occasion were dealt with speedily and firmly. Sentences of imprisonment were the norm, and some were lengthy. To some extent, one could say that they were deprived of the right to remain in a dwelling house by that very process. The courts have sufficient powers to deal firmly with offenders caught up in a riot and appeals against sentences were, for the most part, unsuccessful. The criminal justice system—some would say “for once”—in general responded very well to what occurred.

I am concerned that this measure is a step too far. While a court would still have to be satisfied that it was reasonable to grant possession, the fact that the relevant offence can be committed not only by the tenant but by someone residing in the dwelling house means that a tenant wholly innocent of involvement in a riot could potentially lose their home. I do not think that this is a necessary or appropriate provision, given all the other powers that exist elsewhere in the Bill. I am also concerned that what is essentially a procedure by way of civil remedy should carry with it a criminal offence of this sort connected with the civil recovery of possession. Although I share the Government’s concern that those involved with riots should be dealt with in a way that sends out a message to any potential rioters, I take the view, as did the Joint Committee on Human Rights, of which I am a member, that this clause is a step too far.

[Baroness Berridge (Con)]

My Lords, I, too, am a member of the Joint Committee on Human Rights and wish to speak to Clause 91. I sympathise with the Government’s reasoning and motivation for this additional ground for possession being included in the Bill and appreciate the strong signals that are needed for people involved in rioting. I was in London in the summer of 2011 so I can directly share the concern of the Government and the general public about the serious nature of the offences of those who participate in riots, especially on that scale. However, as my noble friend Lord Faulks outlined, the criminal courts have sufficient powers to deal with those matters. If I recall correctly, some courts even sat through the night, and many offenders were clearly extremely shocked to be sentenced to a period of imprisonment. The criminal courts were not found wanting and sentences reflected the gravity with which the judiciary viewed this behaviour.

It is important to note the distinctive nature of the power in Clause 91. Unlike the powers in Clauses 86 to 90, this power is exercised in relation to behaviour that is not necessarily either of any impact on the landlord or in relation to the premises themselves or connected to the dwelling house. I also share the concern of the noble and learned Lord, Lord Lloyd. When speaking of the old ASBO regime, he stated that we are,

“using the civil law to do the work of the criminal law”.—[Official Report, 18/11/13; col. 750.]

Repossessing premises is a civil law matter, but this provision is akin to bringing criminal penalties for riot into our civil courts. As my noble friend Lord Faulks has outlined, the courts have to be satisfied that it is reasonable to grant possession. However, the fact that the offence can be committed not only by the tenant but by someone residing in the dwelling house means that a tenant wholly innocent of involvement in rioting could lose their home. That is unjust.

Such a tenant could argue that Article 8 of the European Convention on Human Rights protects their right to a family life and home. However, such arguments can often be lengthy and expensive. Many of these arguments will end up being funded by the taxpayer. Although I share the Government’s concern that rioting should have potentially serious consequences, I am left wondering why if rioting is a ground for repossessing premises, other serious offences, such as paedophilia, are not. I maintain the view recorded in the report of the Joint Committee on Human Rights. This clause will be an unhelpful precedent.

[Lord Foulkes of Cumnock (Lab)]

My Lords, a few weeks ago I was quite taken aback when I received from a Conservative Peer a message of glowing tribute for the two speeches I had made in the Chamber that day. Since I had not been anywhere near the Chamber that day I was somewhat mystified, and that is why I want to make it clear that the speech before last was not made by me, but by someone with a similar name. The noble Baroness currently in the chair and I also have the same sort of problem from time to time, except that there is one big difference between her and me which is fairly obvious. I do not mean politics, I mean gender. So I want to make it clear that the speech before last was made by the noble Lord, Lord Faulks: F-A-U-L-K-S. I say that because if I just pronounced it, Hansard would not know what on earth to do.

I have a further point. Had I been making these points in another place with the noble Baroness, Lady Fookes, in the chair, she would have ruled me out of order long before now, but that does not happen here. My point is that that the numbering and lettering of these amendments is even more confusing than the confusion between our three names. I hope the clerks will look at some more logical way of numbering and lettering amendments. After all, 56 is not the only number that you can use for an amendment. There is 57 for example, and so on. These As, Bs, Cs, Ds and so on are most confusing. However, I am going on too long, taking up time now when I am looking forward to speaking in order, substantially and importantly, on attacks on shopkeepers and public service workers later in the Bill.

Anti-social Behaviour, Crime and Policing Bill

Baroness Berridge Excerpts

Monday 18th November 2013 Lords Chamber

[Lord Wigley (PC)]

My Lords, I shall speak to Amendment 20GA, which is tabled in my name and that of the noble Baroness, Lady Hollins, and is coupled with this group. It seeks to address concerns that the Bill does not adequately take account of the likely impact which these new provisions will have on people with a learning disability. The amendment says:

“Consideration should be given to people with a learning disability in the issuing of an injunction to ensure they are not discriminated against”.

It may not be the most elegant English, finishing with the word “against”, but I think the gist is generally understood. I should also declare my interest as vice-president of Mencap Wales.

As we heard in the debate on the previous bank of amendments, the Bill introduces civil injunctions to prevent nuisance and annoyance—IPNAs as they are called. These may be imposed if the court considers it “just and convenient” to prevent anti-social behaviour. The Joint Committee on Human Rights, in scrutinising the Bill, highlighted that this is a lower test than the test of necessity, as required by human rights law. Furthermore, it considered that the new IPNA definition of anti-social behaviour is broad and unclear.

This has set alarm bells ringing with Mencap and others who work with people with a learning disability, fearing that this will lead to IPNAs being used inappropriately. As many know, people with a learning disability are disproportionately likely to be victims of anti-social behaviour. Mencap's report Living in Fear found almost nine in 10 people with a learning disability had experienced bullying, harassment or some form of anti-social behaviour.

The root of this, of course, is attitudinal and is based on the value that we as a society place on disabled people. In some people's eyes they are different and sometimes regarded, sadly, as dangerous. This was brought into sharp focus by the recent murder of Bijan Ebrahimi. Bijan was a disabled man picked upon for being different on his estate in Bristol. He suffered from low-level harassment before being accused of being a paedophile. He was questioned by the police, who found him innocent, but unfortunately by this point rumours had begun circulating that he was a child abuser and two days later he was brutally murdered.

My concern is therefore that a lower threshold for IPNAs, together with a murky definition of anti-social behaviour, will result in these new injunctions being used out of misunderstanding, fear and ignorance of people with a learning disability, and of behaviour that might be associated with their impairment. It could also lead to a rise in vigilantism and will do nothing to improve people’s understanding of the needs of disabled people.

There is also a fear that victims may in turn be branded perpetrators. For example, a person with a learning disability might be continually verbally abused by a neighbour. What if that victim is at the end of his tether and snaps, so to speak, at the neighbour? Such behaviour might in turn result in an IPNA being placed on that individual. The Bill sets out examples of certain prohibitions and requirements in Parts 1 and 2, and the amendment would include consideration of learning disability at this juncture. Such a step, if backed by robust guidance, would undoubtedly go some way towards meeting these concerns. I hope that the Government might look at this area further, not least because I understand that no equality impact assessment of the Bill has been carried out to date. I look forward to hearing the Minister’s thoughts on these matters.

[Baroness Berridge (Con)]

My Lords, Amendment 20 was recommended by the Joint Committee on Human Rights in its fourth report—a committee on which both my noble friend Lord Faulks and I serve. Amendment 20 is a modest compromise and adds an element of reasonableness or objectivity, giving the test more rigour, and will aid the authorities and other agencies. It will enable them to better explain their refusal to act on behalf of some people who just have different views on what they should have to tolerate from their neighbours and other people in the neighbourhood. I agree with my noble friend Lord Faulks that at this earlier stage, the test should have a reasonableness requirement, as it is at this stage that the officials of the authorities outlined in Clause 4 have to consider that behaviour.

As has already been outlined, reasonableness and proportionality are a requirement that the judiciary has to take into account when granting an injunction. This means that there will be reasonableness applied in the test by the officials and, of course, by the court rather than having a more subjective test by the officials and only later on encountering the reasonableness threshold. I spoke at Second Reading about the inordinate lengths to which witnesses have to go to collect the necessary evidence to get an ASBI or an ASBO. Merely adding after “conduct” the words “that might reasonably be regarded as” does not increase the evidence that has to be gathered and I therefore support this amendment.

[Lord Hope of Craighead (CB)]

My Lords, I will add a brief word to what has just been said in support of Amendment 20. The words “any person” at the end of Clause 1(2) are rather important; I would have thought that they make it all the more important that the words which the noble Lord, Lord Faulks, has suggested are put in. Without that, one would have the very difficult task as a judge of having to assess the evidence of one individual and deciding whether that individual is to be believed. If that individual says that he or she has been annoyed or suffered a nuisance, it would be quite difficult to say that the test was not satisfied. The reasonableness test is the one which would soften this and make it more realistic, and I would have thought that it was compatible with the general aim of the measure.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I say in response to my noble friend’s point about education and training, “Call me legalistic”. The noble Lord, Lord Harris of Haringey, is very bold in raising these important points. He used the phrase “bona fide” several times in his speech, as well as in the amendment. Followers of paganism would say that their religion was bona fide. As the noble Lord was speaking, it occurred to me that a call to prayer at a very early hour is very annoying to some people, but would one challenge that? He raises bold and brave questions.

[Baroness Berridge]

My Lords, I refer to the report of the Joint Committee on Human Rights. The examples raised by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Harris, all seem to relate to the manifestation of somebody’s religious beliefs. The report states that the holding of religious beliefs by any individual is an absolute right under both the European convention and in international law, under Article 18 of the Universal Declaration of Human Rights. It is only the manifestation of one’s religious or humanist beliefs that can be restricted by a country on certain grounds, as defined in European and international law. Would the Minister please outline why the Bill, as currently drafted, only allows prohibitions and requirements to,

“so far as is practicable … avoid any conflict with the respondent’s religious beliefs”?

It should, surely, be the manifestation of those religious beliefs that the Bill is aimed at.

[Lord Ahmad of Wimbledon (Con)]

My Lords, in standing up and responding I feel like the Jedi knight next to the Jedi master. May the Force be with us all.

Amendments 20F and 22CA raise an important point in respect of the duty on the court to ensure, so far as is practicable, that any prohibitions or requirements attached to an injunction do not conflict with the manifestation—as my noble friend so eloquently put it—of the respondent’s religious beliefs. In line with the Equality Act 2010, reference to religious beliefs should go further than so-called “traditional” religious beliefs. I believe that this can be covered in guidance but I would like to go away and consider further the points made by my noble friend. We can return to the wording of this section if required. I hope my noble friend will accept my assurance that we will further consider this point and those made by the Joint Committee on Human Rights.

I turn to the amendment tabled by the noble Lord, Lord Harris. I support the words of my noble friend Lady Hamwee: he raised bold and challenging concepts. As I said, in response to an earlier amendment, what may be perceived as perfectly acceptable to one person may not be acceptable to another. The courts are used to considering a person’s religious beliefs and do not need to be told that they can reject beliefs if they are spurious. In addition, to try to second-guess what would, in the words of the amendment, constitute activities “that would normally arise” is very difficult given that two people of the same religion may have different ways of practising their faith. I am a Muslim and there are 73 different denominations within Islam. During Ramadan, the time of your fast can differ depending on where you are. One obviously prefers to be at a place where the fast closes as the sun sets rather than when the sun is set totally. That is a practical illustration from a faith which is widely recognised.

The crucial point here is that, in considering an injunction, the court must avoid, so far as is practicable, any conflict with the manifestation of a respondent’s religious beliefs. If that is not practicable because, for example, avoiding the conflict would result in the respondent engaging in further anti-social behaviour purporting to be religious practice, the court would not be prevented from imposing prohibitions or requirements that it considered appropriate. This is something we can safely leave to the courts; they are more than capable of assessing the bona fide status of a respondent’s religious practice without express provision and, indeed, we have recently seen examples of that.

Amendments 20G and 22CB, tabled by my noble friend Lord Greaves, raise another important point. As we have made clear, the injunction should be available to help turn a troubled person’s life around, especially when they are young and impressionable. As such, it would not be helpful for requirements or prohibitions to unnecessarily stop them engaging in constructive training.

However, what is considered as training by some may not be worthy of special consideration by the court and some will try to use this term to delay the court’s process. Where training is worthy of consideration it is likely to be linked to an educational establishment or even a formalised work placement and, as such, is already provided for in the Bill. My noble friend also raised the issue of different wording in different parts of the Bill. We recognise that Clause 34(3) imports the word “training” whereas Clause 5(1) does not. I will certainly reflect on those two variations and return to them as required.

For the reasons I have given, I hope that my noble friend Lord Greaves will withdraw his amendment and that the noble Lord, Lord Harris—notwithstanding the important issues that he raised—will not press his.

Anti-social Behaviour, Crime and Policing Bill

Baroness Berridge Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Berridge (Con)]

My Lords, there are many principles in this Bill of many parts but I shall mention briefly the IPNAs, forced marriage, the IPCC and miscarriages of justice.

I have the privilege of serving on the Joint Committee on Human Rights and I am pleased to hear that our recent report on the Bill is being relied upon in your Lordships’ House and, with one notable exception, being agreed with. However, it is important to remember the context outlined in that report at paragraph 11:

“Preventative measures against anti-social behaviour are in principle a welcome fulfilment of the positive obligation on the state to protect people against having their rights interfered with by others.

An Englishman’s home is his castle and many of us take for granted that yesterday’s storm was an unusual intrusion on a quiet night’s sleep. One only has to glance at the fly-on-the-wall TV programmes filmed in some of our neighbourhoods to realise the need for legislation in this area that is easily enforceable. It is sad that the law is being used not only to protect you from your criminal neighbour but to try to make your neighbour be a considerate one.

I found it most illuminating to speak to lawyers who practise in this area. This brought home to me not only the type of behaviour that has been outlined in your Lordships’ House but the lengths to which witnesses have to go to provide appropriate evidence for the current ASBO and ASBI regimes. Usually it involves months of diary-keeping, spending time every evening detailing the day’s events, recording the exact time of the spitting through the letterbox, for how long the music was blaring, which other people witnessed the dog defecating for the umpteenth time on your front doorstep, and who else can confirm that the cannabis smoke that was wafting into your children’s bedroom was indeed cannabis. However, sometimes the threshold of tolerance apparently just grows so that none of the above registers on the Richter scale of annoyance any more. Often the diary ends abruptly. When asked in court why that is so, sometimes the answer is, “Someone in the family got cancer so there were other things to focus on”.

Many months, of course, often elapse between the behaviour starting, the behaviour becoming persistent, the complaint being made to the authorities, the decision being made by the authorities to take action, the evidence being gathered, proceedings being issued and a directions hearing being heard at court. There is already a huge ask of witnesses who, of course, are telling all this while living in the neighbourhood when this behaviour is still going on. So I welcome the streamlining of the powers, the increasing number of agencies that can apply and the attachment of a power of arrest.

It is also welcome that the breaching of an injunction to prevent nuisance and annoyance will not be a criminal matter. Many children go through phases when they are a nuisance to a neighbour—they knock and run a bit too often, are too loud and maybe for a while they are just caught up in the wrong crowd—but it will now not mean a criminal record. However, I, too, see that some form of reasonableness needs to be added to the test outlined in Clause 1, as recommended in the Joint Committee on Human Rights report.

I would be grateful if my noble friend, before Committee, could clarify Clause 1(5)(a) in relation to the effect of injunctions and the right to hold religious beliefs, which is an absolute right. It is only the manifestation of one’s religion that can be subject to limitation by law as necessary in a democratic society, not the holding of the beliefs per se, as Clause 1(5) currently states.

As I have read the statute, it does not deal with a situation where offences are committed by groups of offenders. Sometimes some of the offenders are over and some under the age of 18, and they need to be tried in one set of proceedings. This should be a simple change. It would be an undue burden on the witnesses I have mentioned to have to attend court twice. I believe a simple amendment has been put forward by the Law Society.

On forced marriage, there has been much debate as to whether to criminalise this matter and I support the Government’s decision to do so. That sends important messages about the basic role of consent in marriage and sexual relationships, of the right of the individual to choose and, conversely, of the appropriate place for cultural, community, family and religious views.

In the ITV programme “Exposure”, I found the comments of the Chief Crown Prosecutor in the north-west, Mr Nazir Afzal, illuminating. The reported cases of forced marriages involved Sikhs, Hindus, Jews, Christians and Travellers, as well as reflecting the appropriate proportion of Muslims. Mr Afzal’s labels are all communities, so criminalisation could assist individuals in those communities to defy the leaders or families and assert their own wishes—in fact, their own human rights. Sadly, however, this legislation recognises an anomaly in Clause 108(3). For the purpose of the criminal offence of forced marriage, it does not matter whether the marriage is a religious ceremony that is not a legally recognised marriage under UK law. As I understand the legislation, someone can be forced into a marriage, which would be a criminal offence, and the spouse who forced them into the marriage would be imprisoned. However, if it was merely a religious ceremony, then the woman—it is usually the woman—has none of the protection of the division of family assets available in our divorce courts. Will she suddenly be entitled to be given the family assets under the Proceeds of Crime Act? Will Her Majesty’s Government please take this opportunity to look at the religious marriages that are not legally binding in UK law that are misleading women, and perhaps look at putting responsibility on the religious leaders who conduct such ceremonies?

With regard to the IPCC, I welcome the fact that the Government are enacting some of the recommendations from the Home Affairs Select Committee. However, the Select Committee also said,

“it is vital to have a body that is truly independent and competent”.

I have to wonder how this is achieved with the proposed transfer of resources from the police forces’ own professional standards departments—the same departments of which it was said by the Select Committee:

“It is unacceptable that Police Standards Departments had made the wrong decision in 38% of appeals”.

Will this really enhance the IPCC’s reputation of independence from the police it investigates, or the credibility of those investigations?

Finally, will Her Majesty’s Government please consider the Select Committee’s recommendation to change the name of the IPCC to the Independent Policing Standards Authority? This would reflect its broader functions—over, for instance, Her Majesty’s Revenue and Customs. It would also serve another purpose. Last week, during the latest plebgate episode, the following actors were on the media stage: three police officers from something called the Police Fed, three chief constables, a Home Secretary, a Prime Minister, a PCC and an IPCC. The accidental similarity of the acronyms of the latter two bodies may also be fudging in the public mind the different roles that they perform. I had to listen very carefully to the news coverage to work out which body they were actually referring to.

Whether one agrees with Blackstone’s formulation,

“It is better that ten guilty persons escape than that one innocent suffer”,

there has always been great protection for the innocent in common law by the presumption of such innocence. When a miscarriage of justice is proved, I am very proud of our history of paying compensation in appropriate cases. I am also proud that our law in this area has recently been upheld by the European Court on Human Rights in the case of Allen v the United Kingdom. The changes outlined in Clause 151 of the Bill are not, apparently, to save money but to make the system more certain for applicants and simplify the case law to apply. However, as your Lordships have seen, there is significant disagreement about whether Clause 151 reintroduces the old case law of having to prove clear innocence to receive compensation. I speak as a lawyer, but to avoid the Committee on this Bill being blinded by the case law, I hope that the Minister will convene a meeting so that Members can hear the arguments of the Home Office, the Joint Committee on Human Rights and of any other interested Members of your Lordships’ House. On a practical note, as our law has already been all the way to Strasbourg, the Government may inadvertently be starting that journey again by changing it—even if the intent is to simplify that law.

Many of these matters will come back to your Lordships’ House in Committee. I am concerned to have the best evidence to present at that stage. If time allowed I would make submissions on Schedule 7 to this Bill. I hope that my noble friend the Minister will assist me and any Members of your Lordships’ House as I have made a request, which the parliamentary police service scheme is seeking to fulfil, to go and see Schedule 7 in action at our ports and airports. It is unusual that they have the power to stop people without reasonable suspicion. I hope that my noble friend can assist in that matter.

Queen’s Speech

Baroness Berridge Excerpts

Thursday 9th May 2013 Lords Chamber

[Baroness Berridge]

My Lords, violent crime is down and the UK is a much more peaceful place. It is not often that one wakes up to such a good-news story as the lead item on the “Today” programme. So despite a recession and a decline in police numbers, the UK has seen a substantial and sustained reduction in direct violence over the past 10 years.

These were the findings of the first UK Peace Index, launched in Parliament on 24 April. I, too, remained sceptical of such good news until I saw the quality of the research and the statistical analysis. Between 2003 and 2012, the homicide rate halved in the UK. Violent crime is down from 1,255 to 933 offences per 100,000 people. Broadland in Norfolk is the most peaceful place to live, while unfortunately Lewisham is the least. The UKPI also shows that public perception of the threat of violence is inflated and is apparently linked to mass media coverage of high-profile crimes. One only has to think of the recent wall-to-wall coverage of Boston, but perhaps our diet of “NCIS”, “Miss Marple”, “Law and Order: UK”, “Midsomer Murders” and “Homeland”, to name but a few, does not help matters.

What did not get much coverage was the UKPI’s finding that over the past five years there has been a reduction in the number of first-time offenders. With recidivism rates of around 66% and it costing £40,800 for a year’s imprisonment, preventing the first offence and the beginning of the cycle is vital. It seems that one of the causes is many small voluntary groups doing imaginative youth work, which makes gangs and crime less attractive and helps young people cope with often complex family situations. So while some serious offenders will always need the state as the probation service, many others do not, especially young people. I speak as a trustee of a prison rehabilitative charity, Kainos Community, that works in four prisons in the UK. While we depend on the governor, Kainos staff and prison officers to deliver our rehabilitative community, the prisoners repeatedly say that what they value most are the volunteers who come in to spend time with them. It is this volunteer aspect that a probation service delivered by a charity can give to young people that often the best probation officer cannot. A relationship given from choice not contract can do wonders for a prisoner’s self-worth.

Many of these charities, including the Message Trust in Manchester, have seen that such stable relationships need to be supplemented by training and employment. In January 2013, the chief constable of Greater Manchester Police opened the Message Enterprise Centre, which is creating businesses to train and employ young offenders who, in this economic climate, are, unfortunately, virtually unemployable. A probation provider that might also give you a job is way beyond what the state can give you. The challenge will be whether the huge Ministry of Justice contracts can include the often small, local providers, as without them the rehabilitation revolution in the gracious Speech will not be delivered.

Also in the gracious Speech was the reform of the police, which included the introduction of a police remuneration review body. Before going out for six shifts on the streets of Peckham recently, I was warned that police would complain to me a lot about pay and pensions, but I was very encouraged as their complaints were mainly about poor kit. They were uniform in their view that British and German makes of car for their patrol cars were great kit and that the replacement Japanese cars were poor kit.

I also saw first-hand the need for more sophisticated statistics on the stop-and-search situation on our streets to see what is really happening. However, as I mentioned recently in your Lordships’ House, I was even more convinced that police who exercise the coercive power of the state on our streets must reflect the communities they serve. The statistics I obtained from the House of Lords Library are sobering. More than 40% of Londoners now are not white, but only 11.6% of police constables are from a BME background, and once you go up just one rank the figures on average halve to 5.5% of chief inspectors and 3.8% of chief superintendants. In bald figures, at senior ranks of superintendant and above, the Met has 315 officers, and just 17 of them are from a BME background. I was encouraged that the figures for Greater Manchester Police and West Midlands Police are much better, so it is not an impossible task. It is true that the ratio for PCSOs in the Met is much better at 34.5%, but that post was introduced in 2002 so for how much longer can we listen to the clarion call that this will be the solution to the situation?

I fear that direct entry is now viewed as the solution, but when that other recent innovation, the national College of Policing and its board, has no ordinary person from the communities it polices on it, let alone anyone from a BME background, I find it hard to be optimistic. This issue is often viewed as historical. I am told that what I am saying is very much last-Government, as if this is some kind of fashion, but the Riots Communities and Victims Panel, which looked into the 2011 riots, showed that this is still very much a live issue.

Finally, being a trustee of the think tank British Future, which speaks on identity, migration and integration, leads me, of course, to mention the immigration Bill. Whatever might be the practicalities for the NHS and landlords, I am pleased that we can now speak about immigration without fear of being called a racist. Perhaps this change was inevitable because the latest wave of mass migration, in 2004, was from Poland, and therefore the race and immigration issues were helpfully separated. However, that enforced silence, while people had very real issues to be addressed, sent people to extremes and is one of the reasons why the tone and language of debate can still be acerbic and polemical. Had we been able to talk about this more freely, the debate would now be held in a more constructive manner. As politicians, it is vital that we keep our categories clear. There are legal migrants, illegal migrants and asylum seekers, and we must remember that many British citizens are very recent legal migrants and asylum seekers, which demands that we understand the sensitivities around this issue.

The correct tone in this debate will also help the UK to retain our long tradition of being a refuge for those who need it. In a recent YouGov survey, conducted for British Future on the asylum claims from Afghan interpreters who helped the British Army, 60% of those who expressed an opinion believed that Britain should allow those workers to settle here. We should be justifiably proud that Pakistani schoolgirl Malala Yousufzai is being treated and educated here in Britain. Before its disbandment, the UKBA was open to working with the Asylum Advocacy Group, which was convened by Bishop Angaelos of the Coptic Orthodox Church and various diaspora groups, to aid UKBA officers in dealing with claims arising from Egypt.

I was saddened recently to learn that religious minorities who fled Iraq, including more than 85% of Iraq’s Christian population, went overwhelmingly to the USA, Canada and Australia, rather than here. They did not come to the UK. Unfortunately, global events may require us to be a refuge once again, and I hope—I trust not in vain—that there would in that case be cross-party support for the UK being a sanctuary for those genuinely fleeing persecution.

Police: Racism

Baroness Berridge Excerpts

Thursday 25th April 2013 Lords Chamber

[Lord Taylor of Holbeach]

Since the Macpherson report, which was the initial report, as noble Lords will know, there have been a number of allegations. Indeed, currently there is a review investigating allegations of a conspiracy to cover up this case. We will take that review seriously. It does not alter the fundamental strategy, which is to try to make sure that police numbers and the ethnic make-up of policing reflect the communities that they serve.

[Baroness Berridge]

My Lords, I recently had the pleasure of spending six days out with team A of Southwark Metropolitan Police Service. During that time, we conducted a stop and search of a black man outside the Damilola Taylor Centre. Including myself, there were three representatives of the Metropolitan Police Service handling the coercive power of the state, and every single person who walked past us was from the black community in the area. When will my noble friend the Minister insist that all police services raise their levels so that they reflect the populations that they serve, give a time limit for that to take place and perhaps even make it a performance indicator?

[Lord Taylor of Holbeach]

My noble friend reinforces much of what I have been saying. In January 2012, the Commissioner of the Metropolitan Police initiated the “stop it” campaign as a way of trying to ensure a better balance. The police must use stop and search in a proportionate fashion, and we will consider the outcomes of that strategy. I commend my noble friend on joining in that particular exercise. I attended a dinner here with the Commissioner of the Metropolitan Police the other evening for the parliamentary police programme, which is widely supported by parliamentarians—indeed, Members of this House were present. I commend that programme. Anything that makes us, in politics, more aware of the decision-making and the thoroughness with which the police do their work is worth while.

Justice and Security Bill [HL]

Baroness Berridge Excerpts

Tuesday 19th June 2012 Lords Chamber

[Baroness Berridge]

My Lords, I am a member of the Joint Committee on Human Rights. When we were considering the Green Paper and now the Bill, I seemed always to have had in mind the statue of Lady Justice at the top of the Old Bailey, but when seeking to balance the various injustices in these situations I have come to conclude that her scales need at least seven pans.

First, the Government assert that they are not able to defend themselves and are forced into the settlement of claims. I agree with the Lord Chancellor that that is “extremely unsatisfactory”. Secondly, the Bill would have the claimant and the lawyers in the corridor of the court and evidence seen fully by only one party. Thirdly, in civil proceedings there can be an appeal on the facts, but if, as the Government assert, these cases are so saturated in intelligence information that most of the judgments are secret, people will be less able to appeal and correct decisions.

Fourthly, there is the exclusionary nature of PII where the evidence is not considered by either side. Fifthly, there are apparently strike-outs of meritorious claims, but currently the only example is the case of Carnduff and Rock. Sixthly, how do we ensure the continued development of the balancing of public interest immunity in national security cases? Seventhly, is there information that has previously been disclosed in court proceedings, and thus available to the general public and the press, that would now remain secret? Some of the injustices do not relate to individual cases as the Bill will change the judicial system. It is a fine balancing exercise that, I would add, gives you a headache, and inevitably people will come to different conclusions about the least bad solution.

However, Lady Justice is usually blindfold, which is apt in this situation as your Lordships cannot observe a CMP in full. That is, the hearing has one party excluded. I trooped down to the Royal Courts of Justice in the February Recess to watch a control order case. I spent nine years as a civil advocate and I can spot a court case when I see one, but this did not feel like a court case: namely, a case in which parties try evidence before a judge. It was more like manoeuvrings, with the open advocate, the special advocate and the judge trying to assist to ensure that enough of the allegations were known before the whole thing—the trial of the allegations and most of the evidence—was held in secret behind what I discovered are literally the locked doors of the court. The controlled person was not even there. When I queried that, I was told that it is not unusual because, “there is not really much point”. What I saw worried me and convinced me that the best people to determine this issue were those who have actually done these hearings, which will not necessarily be the most experienced practitioners, judges or academics.

That leaves three groups: those I will call the CMP judges, whose views are not known to Parliament; David Anderson, the independent reviewer; and of course the special advocates. David Anderson QC accepts that CMPs have the capacity to operate unfairly, especially if there is no gisting of the evidence. The last group are the most experienced, and they are not at all convinced. In fact, “inherently unfair” has been their consistent criticism of CMPs. Again, I agree with the Lord Chancellor when he said that the,

“evidence of the special advocates most unsettled me”.

It has been suggested that the special advocates underestimate the effectiveness of CMPs, but that is unusual for any group of lawyers, especially one that includes 22 QCs, not because they are arrogant but because they are really excellent at what they do; QC is a top brand. I would like to see the Government gain the support of these independent advocates before being prepared to support such a fundamental change to our judicial process. I might add that these lawyers, the special advocates, will secure more work if we have more CMPs, and that is a rarity in my experience.

On the injustice of evidence excluded under PII, I join the noble and learned Lord, Lord Morris, but I would be grateful if my noble and learned friend the Minister could set out the statistics of how many cases in the past have led to the successful exclusion of all material, and how many have led to the partial admission of material in open court, such as that achieved so ably in the 7/7 inquest. Further, was this technique used in the Guantanamo Bay litigation which the Government have relied on so heavily? Were exclusionary PII applications made in those proceedings? Also, I am perplexed that the Government apparently settled the al-Rawi case before knowing whether they could have a closed material procedure. When questioned by the Joint Committee, the Lord Chancellor maintained that the Government could have defended the claim if they had had a closed material procedure, but if the Supreme Court had decided in their favour, no proceedings would be left to try. I am perplexed about this.

Moving on, it is hard to see how to ensure the future development of PII in national security cases when under this Bill the judge would be required to accede to an application if there is any national security information relevant to the case, even if he considers that the case could be tried using the existing PII rules. I suspect that we will find amendments tabled during Committee on the Bill. Will less information be available in the public domain than there should be? I think there is a danger that closed material procedures will restrict it.

As I understand the Bill, the difference between closed material procedures and public interest immunity is illustrated using an extension of the example cited in the Constitution Committee’s report of an aircraft accident where the family ended up suing the Government. Let us imagine that we have gone into a closed material procedure and it becomes clear for the first time, behind closed doors, that cockpit video footage exists. That footage is played behind the closed doors. It is akin to the footage that many noble Lords will have seen from a recent inquest into a friendly fire incident that was leaked to the Sun newspaper. Is there any way in which the judge, in a closed material procedure, can balance the interests and pierce the wall of the closed material procedure to put that video into the public domain, given the level of intense interest both in the press and among the public since they know of its existence? As I understand the Bill, that would not be possible. Of course, the claimant may win the claim and the judge may use the powers under Clause 7 to enforce concessions on the claimant, but the public and the claimant will never see that video.

Civil claims are not always about winning or money but about knowing the evidence that establishes the allegation. The same is true for the press, as Ian Cobain, the Guardian journalist who gave evidence to the committee, said. His allegations were viewed as conspiracy theories by the Government, but documents disclosed in court proceedings have sadly proved otherwise. As I understand the Bill, CMP applications are ex parte, so there will never be cases in which the press should be represented to argue the open justice issue. Also, apparently meritorious claims are struck out as the intelligence is so central that it cannot be tried. As I understand the Bill, a claimant is not helped as only the Secretary of State can apply for closed material procedures.

What of confidence in Lady Justice herself? I rely here on the words of the noble Marquess, Lord Lothian, that it is perception that matters. We do not legislate in a vacuum and there is concern about the level of trust that the public have in institutions—except, I think, in the monarchy and the judiciary. On “Thought for the Day” this very morning, the right reverend Prelate the Bishop of Norwich helpfully summed this up for me when he said that confidence in our institutions is dependent on our trust in the individuals in them. Do the public have such confidence in the groups that will give evidence behind closed doors in a closed material procedure?

Before I am accused of being a fantasist, I pray in aid evidence from the Deputy Assistant Commissioner of the Metropolitan Police, Sue Akers. Her witness statement to the Leveson inquiry is as follows:

“Alleged payments by journalists to public officials have been identified in the following categories: Police; Military; Health; Government; Prison and others. The evidence suggests that such payments were being made to public officials across all areas of public life. The current assessment of the evidence is that it reveals a network of corrupted officials”.

Your Lordships will remember better than I the West Midlands serious crime squad. I am not a doomsday merchant, but one has to think about what happens if this system goes wrong. Who will do the public inquiry? Not, I think, a judge—not because they lack the integrity but because what is being asked of them is beyond the capacity of any human being if both sides are not there to bring forward the evidence and to rebut one another’s claims. Human beings are fallible. Home Office officials have been known to use the power to redact documents to cover up Home Office mistakes. MI6 was found to be incompetent at checking where its seconded staff were for over a week. How will all this not be less challengeable if behind closed doors?

Finally, I ask the Government to consider very carefully the implications of the following scenario. What will be the position under this Bill of the trial in which the right honourable Jack Straw MP is currently sought to be added to proceedings in his personal capacity over allegations from a Libyan military official that he authorised his rendition to Libya? The Government are an existing party to these proceedings and a CMP would be eminently possible. Is Mr Straw going to sit in the corridor outside a locked court? Imagine that Mr Straw loses the claim and has to pay £500,000 damages, and all that is done behind closed doors. He has also previously had security clearance, so he will potentially have knowledge to rebut these allegations from his direct experience, which he will not be able to use.

[Baroness Manningham-Buller]

Ministers do not have security clearance—if only.

[Baroness Berridge]

I welcome that correction from the noble Baroness, but I think that the majority of the point still stands. Do your Lordships trust the Twittersphere to carry this information properly without muddying the waters with potentially inaccurate party political accusations? “The Conservative and Liberal Democrat Government changed the law and Jack Straw, the former Labour Foreign Secretary, had to pay damages”—is that fewer than 140 characters? Will this enhance confidence in our judicial process?

Civil justice, with its disclosure provisions, is often the only avenue open to individuals to get the details of what has happened. This should not be underestimated. It is an old adage that justice must not only be done but be seen to be done. Could this Bill actually make matters worse for the security services and the Government? Can no one knowing the truth actually be better than, “We know but we cannot tell you why.”?

Queen’s Speech

Baroness Berridge Excerpts

Tuesday 15th May 2012 Lords Chamber

[Baroness Berridge]

My Lords, I wish to speak briefly this evening about relationships, but, no, I am not about to delve into the excellent proposals to speed up adoption or improve contact with absent parents. I want to talk about public confidence in two essential institutional relationships, between the security services and Parliament and between Parliament and the judiciary.

The justice and security Bill aims to improve parliamentary oversight of the security services. I think it has found its time. There is concern and confusion about the accountability of the security services in our democratic society. I was intrigued to read the following comments only last weekend:

“By their very nature the world’s top intelligence agencies are a law unto themselves”.

MI6 is among those named.

“Yet it would be wrong to assume that within the intelligence world there are no laws”.

I was relieved to read that.

“It is governed by its own strict set of rules”.

This view of the security services having only their own internal regulation is not from the blogosphere or Twitter but Richard Beeston, foreign correspondent of the Times. The position was correctly outlined in the Reith lectures by the noble Baroness, Lady Manningham-Buller, who said that,

“ultimately the Service is answerable to the law and the courts”,

and that it was the security services who pushed the Government for their existence to be put on a statutory basis.

Also recently, in response to questions from journalists concerning the basis for the police investigation into MI6, the commissioner felt that he needed to respond, “It is the law”. I find the need to re-assert this basic fact quite troubling. Her Majesty’s Government are clearly alert to the reputational issue, as it forms part of the argument underpinning the proposals in the justice and security Green Paper that secret courts are needed, where one party to the proceedings is excluded for part of the time. The argument is that without secret courts the Government cannot defend claims such as those from people who alleged that the British Government were involved in their rendition to Guantanamo Bay as the Government cannot produce such evidence in open court.

It is important to remember that the reputational issue arises in a context of declining trust in our institutions generally and matters which cannot be blamed on court process. I am referring of course to the tragic case of MI6 employee Gareth Williams—so utterly terrible for his family. It was also concerning for the public to hear of MI6’s failure to hand over evidence to the police investigation and to report his absence from work for over a week. It is a necessary part of oversight for the public to know such issues and I hope that the inquest into this death, as well as the recommendation from the Joint Committee on Human Rights report, have lead Her Majesty’s Government to drop the proposal for inquests to be held partly in secret. Most of all, I hope that the discussion of oversight of the security services will be a platform for informed debate and awareness of the accountability of our security services.

Secondly, the Leveson inquiry is dealing with the issue of how you fit the power of the modern media into a traditional separation of powers model. What are the appropriate boundaries between media and politicians? A not wholly dissimilar issue concerning the relationship of the judiciary and the legislature arose when the Joint Committee on Human Rights considered the Green Paper. I am extremely privileged to serve on that Joint Committee. Our 24th report outlines the response to the justice and security Green Paper, and page 16 says that the Green Paper,

“redefines the meaning of a ‘court’ for certain purposes, and in our view it would be beneficial to parliamentary scrutiny of such a measure if it could be informed by judicial views on a matter which goes to the very nature of the judicial function”.

Although this might sound rather novel, it is not completely without transferable precedent. The judiciary as a group responded to the Green Paper on legal aid. Also, as I was looking at previous humble Addresses to see if there was any kind of standard to be adopted—there is not—I found the speech from the noble and learned Lord, Lord Woolf, outlining what happened before proposed changes to custody periods for life sentences were introduced under the Criminal Justice Act 2003:

“Before the law was introduced, and under the guidance of the noble and learned Lord, Lord Falconer, a meeting was held at the Middle Temple, where nearly all those who were playing a leading role were present to discuss the proposals”.—[Official Report, 27/5/10; col. 147.]

In that case, the Lord Chancellor knew the judiciary’s view but I do not know whether the meeting was in private or whether there was an appropriate channel for the legislature as a whole to know these views.

The present Lord Chancellor gave evidence to the Joint Committee that he has spoken to the Lord Chief Justice and two High Court judges, thereby performing the role of conduit of some judicial views to the Government. What about Parliament? I agree with my noble friend about the utter integrity of our judiciary. As the Green Paper’s proposals are for a change in the courts, not so much a change in the law, I felt that without representative views from the judiciary, I lacked a piece of the jigsaw properly to perform the role of parliamentary scrutiny.

Finally, like my noble friend Lord Thomas of Gresford, I found some of the words in the Ministry of Justice’s outline for the Queen’s Speech on this Bill interesting: allowing courts to consider all material relating to the case, even when national security prevents that information being made public. How can you as a claimant put all your material before the court if you are not a part of the proceedings? To be a little technical, how can you bring your rebuttal evidence if you have not heard the evidence you are to challenge?

I fear that a more accurate statement is: allowing courts to consider all one party’s material relating to the case. It is worrying that the one party to which I refer will normally be the Government. There is a healthy tension and balance between a defence and security service perspective and the legal and civil liberties perspective. The issues in the Green Paper involve human rights, national security requirements and common law principles of what is and, importantly, what is not a fair trial.

That is a difficult balance with no perfect solution, but the issues are immensely important. In the months ahead, I look forward to seeing your Lordships’ House at its very best as guardian of the constitution and the civil liberties of our citizens.

Stephen Lawrence

Baroness Berridge Excerpts

Tuesday 24th April 2012 Lords Chamber

[Lord Henley]

I am very grateful for the intervention of the noble Lord, Lord Blair, who knows more than anyone about these issues. I am also very grateful for the support that he offers to the Home Secretary as regards taking this very carefully. I think that my right honourable friend will also note in particular his comments on the possible assistance that HMIC may wish to give to the Met in this instance.

[Baroness Berridge]

My Lords, a recent After the Riots report from the Riots Communities and Victims Panel drew on statistics that one in three people think that the police are corrupt and an IPCC survey stated that 43 per cent of black people felt that a complaint against the police would not be dealt with impartially compared with 31 per cent generally. As much as one is encouraged by the comments of the new Metropolitan Police Commissioner and the new leadership at the IPCC, this is the level of public confidence in those bodies. Will the Minister consider what, in essence, I believe Doreen Lawrence is asking for, which is some level of independence and impartiality in this inquiry because, in effect, you have a police investigation into the police? I ask the Minister to comment on the converse side of that: in the current context, is there not a danger that there might be a temptation for the Metropolitan Police to be too hard on past conduct to allay present connected concerns about racism, which also would not be a just resolution to this matter? Would introducing independence and impartiality achieve the best way of establishing the truth of what has happened and would improving public confidence in the police be best for the police themselves and especially for the Lawrence family?

[Lord Henley]

My Lords, on occasions, I have heard allegations that one in three people think that the police are corrupt, but other surveys seem to show relatively high levels of satisfaction with the police, both in the white community and in the BME community. It is much the same for both groups, although it varies once one gets into sub-groups. I note what my noble friend said about the need for a new independent inquiry. That has not been ruled out and it is a matter that my right honourable friend the Home Secretary will consider in due course. As the noble Lord, Lord Blair, put it, at the moment it is right for the Met to conduct and complete its internal review and for this to move on in the appropriate way. I think he was also right to stress the need not to rush on too fast in these matters.