Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords—

[Lord Hunt of Wirral (Con)]

I will just finish dealing with the point raised by the noble Baroness. We must ourselves try to identify what these pull factors are that cause people to risk their lives in the way that they do. It may well be that both the noble Baroness and I are right to identify certain parts of the pull factors, but of course we have to recognise that there are those pull factors.

[Baroness Chakrabarti (Lab)]

Given that the Government’s position is that they are right about the refugee convention; given that they disagree with the UNHCR but have their own interpretation under which they are honouring the refugee convention; and given that the Government’s position is that it is about parliamentary sovereignty and not the sovereignty of people elsewhere, why should we be forming our interpretation of the refugee convention on the basis of French criticism? If we are worried about pull factors, perhaps we should reinstall “Go Home” vans and a hostile environment for people seeking asylum.

[Baroness Stroud (Con)]

My noble friend said that it would be good to identify what some of these pull factors actually are. At Second Reading, I sought to try to outline what I believed the pull factors were, and they are not things that we would want to destroy or diminish at all. My understanding of the pull factors—why people want to come to this country—is that they include our language, our culture, the rule of law, democracy, historic ties through the Commonwealth, family connections and liberty. These are the sorts of reasons why people want to come here. The small, pitiful amount of money that somebody gets to survive on is not something, when they are leaving Eritrea and thinking of the hellish journey that they are going to take, that is going to make them want to come here. It is much more likely that they experience push factors, which are war, famine and devastating impacts on their lives. We really need to understand the lives that are lived by these men and women who risk all to come here. We know that every system has elements that get exploited, but we have to make laws for the majority of people and the majority of cases, and to be the sort of nation that we actually want to be.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

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

My Lords, I thank all noble Lords who have spoken in this debate. I hope that, at the end of my response, they will feel that I have at least given a partly positive response. I am aware that the noble Baroness, Lady Ludford, did not refer to this at Second Reading, but I am very grateful for the discussion we had—I think only yesterday—about this and other matters. I found it very helpful.

I, too, understand the strength of feeling being expressed. I both sympathise and empathise with the residents of the Chagos Islands about how they were treated back in the 1960s and 1970s. I also agree with the noble Baroness, Lady Lister, that return and citizenship are two different matters in relation to the Chagossians.

We recognise that some former residents of what is now the British Indian Ocean Territory missed out on rights to British nationality when legislation was last passed in 2002 to address the nationality of the Chagossians. Section 6 of the British Overseas Territories Act 2002 granted British Overseas Territories citizenship and British citizenship status by descent to any child born on or after 26 April 1969 and before 1 January 1983, where the mother was a citizen of the United Kingdom and colonies by virtue of her birth in the British Indian Ocean Territory. This measure reflected the removal of the Chagossians from the British Indian Ocean Territory and the fact that the mother of a British Overseas Territories citizen could not pass on her citizenship to a child born outside of the UK or a UK territory. The Chagossian community, however, has criticised this provision because it did not provide for circumstances where women left the BIOT before 26 April 1969 in anticipation of being required to leave, nor did the provision allow children to inherit citizenship from an unmarried BOTC father.

Here is the partly positive response to these concerns. I am pleased to say that the Nationality and Borders Bill currently makes provision to extend BOTC and British citizenship rights to any second-generation Chagossians who were not able to acquire citizenship through their mothers or unmarried fathers, due to discrimination in nationality law.

The issues are complex. As one noble Lord pointed out, some family members in the same generation hold British nationality while others do not. I agree with my honourable friend the Minister for Safe and Legal Migration, who stated in the other place that the Government are keen to consider what more we can do to support families seeking to settle here under the current system. Minister Foster has said that he is open to considering how we might use the FCDO £40 million fund package to support the Chagossians settled in the UK.

I must point out the position that successive Governments have expressed on this point. Amendment 11 would undermine the principle in our nationality law that applies to all other descendants of British nationals. Second and subsequent generations, born and settled outside the UK and its territories, do not have a right or entitlement to register as British nationals. I know that the amendment from the noble Baroness, Lady Lister, seeks, as she said, to limit the right to register as a British national to current generations who must apply within a limited timeframe. This does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy. It goes further than the rights available to many other descendants of British nationals settled elsewhere around the world.

The noble Baroness requested that I meet her and others interested in this matter. I always follow up on requests from noble Lords and I am very happy to meet her. We will consider the point raised by my noble friend Lord Horam about what more we can do to address concerns about the Immigration Rules. My noble friend Lady Altmann raised a point about citizenship. Of course, those without citizenship become overstayers. These are complex issues. As I said in reply to my noble friend Lord Horam, we are happy to consider what more we can do through the immigration system.

[Baroness Chakrabarti (Lab)]

In the light of the eloquent and compelling speeches made in this debate, does the Minister concede a distinction between people who leave a territory to settle elsewhere and people who are forcibly evicted from that territory?

[Baroness Williams of Trafford (Con)]

I do not think that anybody in this Committee would say that what happened to the Chagossians was, by any means, acceptable to them personally. I do not think I was trying to make that case.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I sense very well that the Committee would like to move on, so I will be much quicker than I had intended to be, but my noble friend Lord Paddick has asked me to speak to Amendment 29. Before I do so, I cannot resist rising to the challenge about my party’s involvement in the 2014 legislation. Perhaps after this debate I will explain to the noble Lord, Lord Moylan, the concessions gained in negotiation at that time in response to the agreement.

Amendment 29 would change the requirement from an assessment of conduciveness, if that is a word, to the public good to necessity in the interests of national security. I thank the Minister for her letter following Second Reading. I could not help thinking that the two examples she gave of where Clause 9 could apply probably were matters of national security. She says so for one example, and the other is where it is assessed to be

“in the interests of the relationship between the UK and another country”.

That must be very close to national security, unless the issue is a very long way away from the other country’s security, which would not be a good basis on which to move forward. The amendment would change the requirement of an order to allow for judicial involvement. These two examples actually show why the matter should go to a judge.

I am editing my speech as I go. Reference has been made to particular communities being especially affected by this provision. I say to the passengers on what, in my neck of the woods, is the 337 bus to Clapham that something does not need to be designed to have a particular effect. If it has that effect, it falls into the area we are concerned about.

Our amendment would also add to the exclusions a person holding British citizenship by birth, and where it would

“affect the best interests of a child in the family”.

That is looking at a fairly wide family. Use of the power would require an annual review, which I think is in the amendment from the noble Lord, Lord Anderson.

[Baroness Chakrabarti (Lab)]

My Lords, I have listened to this debate with enormous care. I have conflicting feelings about it. I do not know whether I am prouder of the quality, logic and humanity of so many of the speeches, particularly from the Benches opposite, or whether the more compelling emotion I feel is anger that the speeches even had to be made. Unsurprisingly, I will speak against Clause 9 standing part of the Bill and in favour of the various amendments attempting to dilute its pernicious effect—and even more in favour of the proposed new clauses that attempt to go further.

I almost feel as if I and the noble Lord, Lord Hunt of Wirral, have listened to two completely different debates. The absolute tour de force by the noble Lord, Lord Moylan, and other speeches on these new clauses were not wide of the mark, because they quite rightly acknowledged that Clause 9 deals just with notice. They conceded that point, but talked about the rot that goes further back in terms of two-tier citizenship and the more precarious version of citizenship that some people are coming to experience because of the increasing use of powers of deprivation, and because these will inevitably have to be used more against some groups within the citizenry than others.

Enforcement of Lockdown Regulations

Baroness Chakrabarti Excerpts

Tuesday 18th January 2022 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask Her Majesty’s Government what assessment they have made of the equality of treatment between different groups in respect of the enforcement of lockdown regulations by the police since spring 2020.

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

My Lords, we are clear that nobody should ever be subject to police enforcement based on their race, gender, ethnicity, age or any other protected characteristic. That is why the NPCC—the National Police Chiefs’ Council—has commissioned an independent analysis of fixed penalty notices issued to different demographic groups during the pandemic. The findings from this analysis will be published in due course.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that, particularly after such a long night. Broad police powers, however well-intended, will inevitably lead to arbitrary and discriminatory enforcement. She makes the point about racial bias and I look forward to the fuller picture. Have the Government now gathered more complete data on differentials in enforcement of lockdown regulations? How much was directed at, say, small family picnics or peaceful protests, as opposed to unsafe places of work?

[Baroness Williams of Trafford (Con)]

As I said to the noble Baroness in my first Answer, there is going to be more analysis of FPNs issued to different demographic groups. The outcome will be very interesting in all sorts of contexts—social and otherwise. Like her, I look forward to the findings from the analysis. In parallel to that, the HAC has published its report, The Macpherson Report: Twenty-two Years On, which raised the same concerns over disproportionality of FPNs.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness Thornhill (LD)]

My Lords, we on these Benches support the amendments in the name of the noble Lord, Lord Best, to which I have added my name. In view of the hour, I too will be brief, as the two noble Lords have already said it all. I thank the Minister for the time that she gave us both in meetings and in numerous emails. I genuinely believe that there is real commitment to undoing this blot on our societal conscience. Therefore, given the genuineness of that feeling, it is massively disappointing that it appears that the Government have decided not to seize the only opportunity that we can see in the legislative calendar to actually repeal this piece of legislation.

There is widespread support for repealing this Act. To do so would actually be popular and uncontroversial, unlike much of this Bill. It is unequivocally the right thing to do. The fact that in Scotland it has been repealed for years and that most police forces rarely, if ever, use the powers in the Act is surely evidence enough that, in reality, it is of little use in tackling the current issues of homelessness, where there are, as the noble Lord, Lord Young of Cookham, said, a raft of alternative measures at the disposal of the police and local authorities. It will be a great disappointment for many if this can is to be kicked further down the road. That is why, if it comes to a vote, we will be supporting the noble Lord, Lord Best. To steal a slogan from somewhere else, why do not the Government “Just Do It”?

[Baroness Chakrabarti (Lab)]

My Lords, your Lordships’ House can be proud tonight for seeking to prevent injustices well into the future, but in seeking to support the noble Lord, Lord Best, we can try to act on injustices that are nearly 200 years old.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we will be supporting the noble Lord, Lord Best, if he chooses to press his amendment to a vote. If I may refer briefly to my experiences as a magistrate, it is indeed true that we do not actually see this charge brought very often—of course, we do see beggars, but it really is not that often. It seems to me that there is widespread cross-party support for repealing the Act. A compromise has been put forward by the noble Lord, Lord Best, and I will be interested in hearing the Minister’s response. If the noble Lord does choose to press his amendment, we will support him.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

102: After Clause 172, insert the following new Clause—
“Duty to establish statutory inquiry into lessons to be learned from the death of Sarah Everard
(1) The inquiry into matters arising from the death of Sarah Everard, announced by the Secretary of State for the Home Department on 22 November 2021, is to be held as an inquiry under the Inquiries Act 2005. (2) The Secretary of State must ensure that the terms of reference of the inquiry include the wider lessons to be learned for the professional culture, funding, vetting and organisation of policing, the prevention of violence against women and the investigation and prosecution of misogynistic crimes.(3) If on the commencement of any provision of this Act, the inquiry does not have a panel of members which includes at least one member with experience in the area of violence against women, the Secretary of State must ensure that such a member is appointed.”Member’s explanatory statement
This amendment converts the existing Home Office inquiry into the matters arising from the death of Sarah Everard into a statutory inquiry under the Inquiries Act 2005. It also ensures that the Inquiry panel includes at least one member with experience in the area of violence against women and girls.

[Baroness Chakrabarti (Lab)]

My Lords, here we are, quite late into the evening, to discuss the group of amendments refined from amendments tabled in Committee in response to the horrific rape and murder of Sarah Everard and, I am afraid to say, a wholly inadequate response from some of the most senior police leaders in our country.

I do not want to dwell too much on this, but I do not think that it reflects incredibly well on the way we do business in your Lordships’ House that this group has miraculously come to be debated at this particularly late hour, not least given the fact that I have been around all day and have heard some very lengthy, florid, colourful, relaxed speeches on all sorts of subjects all afternoon and evening from all sorts of delightful Members of your Lordships’ House who have been infrequent engagers with this Bill and most of whom, for all sorts of reasons, are no longer here. I do not think that this self-regulating House has done justice to women and girls in this country, nor, indeed, have those who effectively control the agenda and have allowed this group to be opened at approaching 10.50 pm.

I feel the need to put that on the record for Hansard so that the various women’s groups and victims’ groups who have been waiting for this group to come up will be able to understand exactly what has gone on. I was particularly concerned about some of the debates that went on just before the dinner break with no concern for time—and sometimes not much concern for kindness or the dignity of our fellow human beings, but enough of that—no intention of a vote and no real intention of changing the law. I have also noticed the way in which some of us are censored for our length at strategic moments and others are not in this so-called self-regulating House.

This group deals not just with the Sarah Everard outrage but with the public concern about it and the way that women and girls have been treated in our criminal justice system more generally, and what that means for a crisis of confidence, potentially, in our police service, which is so essential to the rule of law.

I am grateful to noble Lords from parties and groups from all across your Lordships’ House for their consistent support for the calls for a full statutory inquiry, particularly into the broader matters arising from the Sarah Everard scandal. It makes the earlier remarks necessary. Of course, for all sorts of completely legitimate reasons—not least that people come from all over the country, have different health conditions and are of different ages—it is not possible for everyone who wanted to be here to be here right now.

Amendments 108 and 109 are in my name. Amendment 108 is supported by the noble Lords, Lord Carlile of Berriew and Lord Paddick, and the noble and learned Lord, Lord Garnier, while Amendment 109 is supported once more by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Garnier. These two amendments deal with the specific issue of it being lawful at present for arrested people—that is, people who are suspects but have not been charged and are therefore not defendants, or at least believe themselves to be suspects when they are stopped by a police officer, as poor Sarah Everard was—to be taken away in a vehicle by a lone police officer. Noble Lords, particularly those who have engaged with this issue and were here in Committee and at earlier stages of the Bill, will appreciate that that possibility has understandably caused a great deal of concern, in particular since last autumn when Wayne Couzens’s sentencing hearing revealed some of the truly horrific details of that case.

Amendment 108 would prevent a single officer ever lawfully taking suspects away in a vehicle. Amendment 109 takes a slightly gentler approach—helpfully suggested to me by the noble Lord, Lord Carlile, I might add; I am grateful to him—to the same problem. It does not create an absolute legal bar to a lone officer taking a suspect away in a vehicle, with all the dangers that that one on one creates for both the officer and the suspect; instead, Amendment’s 109 approach is to amend PACE—the Police and Criminal Evidence Act—so that the Secretary of State would be required to issue a full-blown PACE code of conduct to deal with the transportation of suspects.

Given who is left at this time of night, I know that the noble Lords here are engaged with these issues and understand the importance of PACE codes in particular. They are required in relation to things like detention and the questioning of suspects in a police station. Since 1984, they have been a really important protection for citizens in the police system. Amendment 109 is a new amendment—I did not table it in Committee—and I am very grateful to the noble Lord, Lord Carlile. I really want to hear any conceivable argument against this mild amendment, which would add “transportation” to the list of activities in relation to suspects for which the Secretary of State should issue full-blown statutory PACE codes of conduct.

When one considers Amendment 108—my previous amendment, unenlightened by the noble Lord, Lord Carlile—with its absolute bar on single officers taking suspects away, or the amendment to PACE, it is worth noble Lords remembering some of the quite bizarre and hubristic public comments that were made. They included, I am afraid to say, comments made by a police and crime commissioner who is no more, as well as by certain retired and serving police leaders, about women being naive in going along with a police officer who stops them late at night. They said that there is something wrong with them—that it is the woman’s fault. Some ridiculous public comments were made.

Equally, however, there were other comments suggesting that this practice should be changed and things should be done. If things can be done by way of police administration, why can they not be somehow reflected in this Bill? This would give greater confidence to the young women and girls in particular—wholly law-abiding people—who have been feeling such anxiety and such a crisis of confidence not just since Sarah Everard’s murder during a lockdown, at a very difficult time for our country, but since the Wayne Couzens sentencing hearing. I hope that I can persuade the Minister to reflect on that particular issue and on how to grapple with what I am proposing in Amendments 108 and 109.

Then, of course, we return to Amendment 102, which calls for a statutory inquiry. It is not only my repeated call: it has been a call from so many people. I am so grateful to my noble friends in the leadership of the Opposition, to the noble Lord, Lord Paddick, and his noble friends and to the noble Baroness, Lady Newlove. She and my noble friend Lady Lawrence are, in my view, two of the greatest champions of victims’ rights, cutting across all vested interests, all party interests and all bureaucracy. The noble Baroness, Lady Newlove, has been with me in relation to this amendment from the very start; it is nearly 11 pm, and she is still sitting there and is with me now. I thank her so much.

This is a call for a full-blown statutory inquiry, not an administrative inquiry, under the Inquiries Act 2005. It follows resistance and hubris, I am sorry to say, from senior police leaders who, as we obviously know by this time, do not want an inquiry of this kind. To put it in context once more—I know that I am taking time, but I feel the need at least to do this argument justice—I mention the relatively recent inquiry and damning report of the noble Baroness, Lady O’Loan. Not much longer than six months ago, she spoke about the obstruction that she faced from the Metropolitan Police—including from the commissioner, I am sorry to say—in reporting on the Daniel Morgan scandal. I need not paraphrase, because noble Lords have heard from the noble Baroness in the past and her report, including the shortened press summary, is there for all to read, along with her speeches in Hansard. She faced obstruction, and said specifically in her findings that she knew that she had been hampered by not having the statutory powers that would have been available under the 2005 Act. I give that as a piece of evidence in my call for a statutory inquiry into the matters arising from Sarah Everard’s murder.

I also give the tin-eared and insensitive—to say the least—policing of the Clapham Common vigil. We know in your Lordships’ House that this was contrary to the original working and decisions of the borough command and the police service on the ground, who were working with women’s and victims’ groups to facilitate a peaceful vigil. Senior leadership and senior officers in the Met decided that was not to be. We can now trace back the timeline, because it is all in the public domain if one takes the time to look at the newspaper reporting. We can tell that those decisions about the disproportionate, tin-eared and counterproductive policing of the Clapham Common vigil would have been made at a time when the senior police leadership knew things that we only now know about Wayne Couzens, what he had done—because he had interviewed at this point—his policing career, and various things that obviously went wrong. I know that that is embarrassing, but that is why we must have a statutory inquiry. All institutions made up of humans feel the need to close ranks when things terribly wrong. That is precisely the moment when outside forces, including your Lordships’ House, need to prevent that closing of ranks.

--- Later in debate ---

I hope that the noble Baroness will withdraw her amendment. Should she wish to test the opinion of the House, I would invite noble Lords to reject the amendment.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who stayed, even those who may have stayed under sufferance—I hope they will forgive me and understand how important this issue is to so many people beyond SW1.

Of course I have been in two, three and 15 minds about how to handle this, not least in the light of the previous vote on the adjournment, but I have to go back to the substance. I have to pay due respect to the speeches of the noble Baronesses, Lady Newlove and Lady O’Loan. I am not sure, in the light of their testimony, that I could suddenly pretend to be the grand old Duke of York—it is one thing to take your Whip on an adjournment vote. I believe in my heart that there will one day be a full-blown statutory inquiry into the wider issues that have just been highlighted by this horrific case. Noble Lords will have to tell their colleagues, friends and family how they voted when they first had the opportunity to do this. I have seen this time and again in my adult lifetime, with Governments and politicians resisting and resisting, and eventually, maybe years later, the argument for justice and the rule of law becomes irresistible.

On two points that the Minister made by way of reassurance, I am glad that there is now the new ethical duty for police officers to co-operate, but it is a disciplinary matter that would ultimately be in the hands of the police to deal with. If the police officer who does not want to co-operate, as is often the case, decides to retire, the ultimate sanction of dismissal will hardly give comfort. What if they are at the senior-most levels of policing in their non-co-operation? That cannot be equated with the power that statutory inquiries and judges have to compel witnesses or they are committed for contempt.

As for being “strongly guided” and “taking into account”, it is not the Minister’s fault, but there was an opportunity for the Home Secretary to announce that Dame Elish would have the final word on this, and we have not even gone that far. We are “strongly guided”, but we are not going to give this decision to Dame Elish, for whatever reason.

With respect, I do not think that we have gone far enough. I know that I may go down in flames, but I have to speak clearly to people outside this House. I have to do this out of respect for the noble Baronesses, Lady Newlove and Lady O’Loan. I want people to know that we stood for them, for the rights of women and girls in this country, and indeed for the reputation of the many decent police officers, including those whom we see here every morning and night when we come and go. We owe it to their honour. The right thing to do is to have a statutory inquiry, and I would like to test the opinion of the House.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I cannot discuss matters of nationality and borders without confessing that this is extremely personal territory for me, as I know it is for others in your Lordships’ House. It is personal territory because I am the daughter of migrants to this country—hard-working people no longer with me and yet with me always. They came, as so many like them did, at the invitation of the late first Earl of Stockton when he was Prime Minister.

In my working life as a human rights lawyer, first in the home department and subsequently outside it, I have seen time and again the manner in which Governments and politicians of all stripes have eroded the hard-won rights of refugees in particular, and how dog-whistle politics around immigration has toxified race relations and undermined race equality, even to the detriment of British people whose migration stories go multiple generations back. So these are issues as much of equality and common decency as of nationality and borders.

The Bill has a patriotic title. The use of the word “borders” is surprisingly colourful for parliamentary counsel: it could have been taken directly from a campaigning slogan. I have no objection to nationality or borders, but I must observe that neither Covid nor climate catastrophe respects either very much. A truly global Britain would cherish the refugee convention as a central pillar of the post-war international settlement once promoted by Britain and would not seek to dilute it. The Dunkirk spirit is about saving people in little boats, not turning them around. So soon after the still incompletely resolved Windrush scandal, we would be wise indeed to give the most anxious scrutiny to any two-tier system of rights to refuge or nationality.

Clause 9 has rightly caused outrage in civil society—if not sufficient media coverage or even debating time in the other place. To deprive a national of that status without notice should be beyond the contemplation of any civilised society that cares about rights and freedoms in general and due process in particular. A nation’s citizens are its responsibility and are not to be dumped like waste, even or especially on the vague and subjective grounds of security, diplomatic relations or

“otherwise in the public interest.”

That the Government are bound by international law not to render people stateless ensures that this provision must inevitably be applied in a racist fashion, with the Executive determining without public scrutiny, judicial involvement or even notice to the individual concerned that they are of a category of British citizen who may potentially qualify for nationality somewhere else, regardless of whether such nationality has even been applied for, let alone granted. No wonder this provision has inspired fear and loathing in our minority communities in particular.

Even the subject heading of Clause 11 sends a chill to the bones, with its “Differential treatment of refugees”. To penalise and even criminalise desperate people in any way for the manner in which they make their escape from persecution to the UK is to violate the letter and the spirit of the refugee convention, which was in no small part the world’s apology for some of the darkest moments in the history of the last century. The Bill attempts to redefine Article 31, thereby ripping up years of interpretation by specialist judges so as to grant only second-class protection to the majority of refugees.

These are but two of the myriad objections to this measure. I say that as an advance apology to noble Lords opposite for the many long nights and longer nightmares to come.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

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

Moved by

[Baroness Chakrabarti]

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

[Baroness Chakrabarti (Lab)]

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

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

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

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

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

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

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

[Lord Beith (LD)]

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

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

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

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

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

--- Later in debate ---

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

[Baroness Chakrabarti (Lab)]

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

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

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

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

Amendment 43 withdrawn.

White Ribbon Campaign

Baroness Chakrabarti Excerpts

Thursday 25th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

When certain events happen, it is very clear that domestic abuse increases. I am thinking of big football matches and other such things that may lead to excessive drinking. There is no doubt that there is a correlation.

[Baroness Chakrabarti (Lab)]

My Lords, it is very nice to be able to congratulate the Minister on securing the distinguished legal services of Dame Elish Angiolini as chair of the Sarah Everard inquiry. I remain concerned that it is a non-statutory inquiry, given the lack of co-operation with the Daniel Morgan inquiry and the need to subpoena not just present police officers but former ones. Can the Minister confirm that the decision about whether it is converted into a full statutory inquiry will remain with Dame Elish, not with the department or the Home Secretary?

[Baroness Williams of Trafford (Con)]

The noble Baroness will know that it is purely a Home Secretary decision. I think the other thing she will acknowledge is that in Dame Elish we have a highly respected, highly competent individual to lead the inquiry.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Ashton of Hyde (Con)]

If the Committee will allow, I can answer some of these questions. We intend to have an Order of Consideration Motion so that, on Report, items will be taken as much as they can be in the same order as they are in Committee—so there will be plenty of time to consider these matters. We have discussed, in the usual channels, how the arrangements for this Bill should take place. I completely accept that it might go quite late tonight. We have spent a lot of time on this Bill—I accept that. But this is the Committee stage, and it cannot go on for ever because, if it goes on and on, the House of Lords looks as if it is preventing the Bills that have been passed by the House of Commons from going ahead.

The noble Lord shakes his head. As my noble friend the Minister has said, there has been ample time to talk about this Bill—and all we are saying is that, after three extra days, we have to draw this to a conclusion at some stage. This is not an unreasonable number of amendments to deal with—we have often done this in the past. The key, of course, is that we actually get on with it and that noble Lords have a view to the rest of the Members of this House. None of us wants to stay up too late. It is perfectly doable to have this number of groups—we have done it before—if noble Lords are able to be brief and succinct and make their point.

On the government amendments, the idea of having them in Committee is that we can debate them today. My noble friend has said that she will withdraw them, and that allows Report to go ahead—and, if necessary, noble Lords can vote on them.

[Baroness Chakrabarti (Lab)]

My Lords, I do not want to elongate this procedural debate before a lengthy debate that we are debating the length of, but the protest provisions in this Bill have been some of the most contentious—and not just in your Lordships’ House but in the country. They are not the final provisions or the final part of this Bill, even, yet they have been saved for the latter stages of this Committee, and the later hours of this last day will include this raft of new and even more contentious amendments. That is the reason for this suspicion and the concern that your Lordships’ House has not been shown the appropriate respect of a second Chamber in a democracy, when dealing with provisions that are, arguably, contrary to the human rights convention, and are certainly thought to be very contentious and illiberal by many communities in this country.

[Baroness Jones of Moulsecoomb (GP)]

Something that we did last week was to start early. Why could we not start earlier today so that we did not need to go into the early hours of the morning? We could have started at 10, which would have been a reasonable start for most people.

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[Baroness Williams of Trafford (Con)]

My intention was not to leave out that issue; we could have a whole debate on the effect of childhood abuse, trauma and witnessing violence on the future prospects of a person when they become an adult and their increased likelihood of going on to abuse, but my intention was not to dismiss it. I apologise that I did not mention it, but the intention certainly was not to dismiss it at all.

Finally, I move to the amendments in the name of the noble Lord, Lord Best. As I said, the time has come to reconsider the Vagrancy Act—some of the language that was used is so antiquated that it would perhaps be alien to some of this generation. I agree that nobody should be criminalised just because they have nowhere to live. Back in 2018, we committed to review the legislation following mixed views among stakeholders regarding the continued relevance of the Act, given that it is, as noble Lords have said, nearly 200 years old. I am sure that noble Lords can understand that announcing the outcome of this review has been delayed by several factors. One noble Lord mentioned the dedicated response for vulnerable individuals who are sleeping rough during the pandemic, which was outstanding.

It has been imperative to understand the full picture of how and why the Vagrancy Act is used, and what impact any change to or repeal of the Act will have. Rough sleeping and begging are complex issues, and the Act continues to be used. The review considered a range of factors and at its heart has been the experiences and perceptions of relevant stakeholders, including local authorities and the police. The Act continues to be used to tackle begging, and, if repealed, a legislative gap would be left that might impact on the police’s ability to respond to it.

The Anti-social Behaviour, Crime and Policing Act 2014 is not an alternative in this context. The powers in the Act are available to police and local authorities to tackle specific forms of behaviour that meet the legal tests in that legislation—for example, behaviour that is likely to cause harassment, alarm or distress to a victim or community. As I have said, begging is complex, but plainly it does not always come with these forms of accompanying behaviours.

[Baroness Chakrabarti (Lab)]

I did not speak earlier to save the Committee’s time and please the Government Whips, but I now have two short questions in relation to the Minister’s answer.

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[Baroness Williams of Trafford (Con)]

When I voiced my support for something needing to be done about the Vagrancy Act, there was a general acknowledgement that something needs to be done about it. I extend the invitation to the noble Lord, Lord Best—and, indeed, to my noble friend as well if he so wishes—because it would be an important discussion ahead of the next stage. What I was trying to say in my rather long-winded explanation is that there are some complex things in the Vagrancy Act that need to be unpicked and understood, with consideration of the legislation on the back of that.

[Baroness Chakrabarti (Lab)]

I hope that this is an appropriate time for me to ask the Minister two questions in relation to her answer on this group.

First, in contrast with the Minister’s answer to the subsequent amendment in the name of my noble friend Lady Armstrong of Hill Top, the answer to Amendment 292H in the name of my noble friend Lady Blake seemed to be that there are adequate powers for local authorities and the police to work together to protect people from unlawful eviction. However, there is obviously a difference between powers and duties. The intention behind this neat and compelling amendment is to do what the Government have tried to do in other aspects of this draft legislation: create a duty for people who already have powers to prioritise a problem and work together. Why not prioritise protection from eviction in the way that other types of crime have been prioritised, with duties and not just powers, in other parts of the Bill?

Secondly, I listened carefully to the Minister’s answer on vagrancy. I do not understand why, if begging is not causing harassment to people, it is a crime at all. The Minister talked about two sides of the begging problem: it is bad for the person who has to do it and potentially bad for the people who experience it. If it is bad for the people who experience it, there are, as the noble Lord, Lord Sandhurst, set out, adequate criminal laws, whether in anti-social behaviour or in other legislation, that cover unwanted harassment. If it is just about protecting people from unhealthy behaviours, we do not do that by criminalising people for being desperate and poor. When she meets her noble friends to discuss this amendment, will the Minister look at whether this review cannot be speeded up in time for Report? The Government seem able to move very quickly when it comes to adding extra powers to suppress protests, but it takes hundreds of years to repeal the Vagrancy Act.

[Baroness Williams of Trafford (Con)]

I am sure that, when my noble friend and the noble Lord, Lord Best, meet Minister Hughes, they will cover some of the points made by the noble Baroness.

I do not think that this is about an acknowledgement that there are adequate powers; it is about the application of those powers. As I said to the noble Baroness, if there are deficiencies in collaboration at the local level, it would be helpful if they were brought to my attention.

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I suppose my question to the noble Lord, Lord Coaker, is: who decides which political demonstration outside a school is acceptable? Would he ban all parents’ demonstrations, or just the ones he disapproves of? These are morally and politically delicate dilemmas, and I argue that legislative changes should not be rushed through.

[Baroness Chakrabarti (Lab)]

In response to that and in support of the broad thrust of my noble friend Lord Coaker’s probing amendment—I think it is fair to call it that—I have long had concerns about public space protection orders in general, and I defer to no one as a civil libertarian, but there is a great tradition in human rights thinking for child protection. So my instinctive response to the noble Baroness is that it is not because the protesters are anti-vaxxers and I disagree with them, it is that it is at school. They are young and potentially vulnerable people, and it does not seem proportionate or fair to me that we as grown-up legislators in this place take greater protection for our immediate vicinity than we give to even primary school children up and down the country, regardless of the nature of the protest.

The point about free speech and freedom to protest being a two-way street is incredibly important, and I suspect that we will return to it in a forthcoming group, but on this issue, for me, at least, the principle is not that I think that this is dangerous speech or disinformation—it is out there anyway online, et cetera—it is that no young person, particularly a very young person, should be subject to an aggressive demonstration, whether or not it is one that I would approve of, on their way to or from school.

Some of us remember the Holy Cross school dispute in Northern Ireland some years ago. The reason why Her Majesty’s Government had to intervene with soldiers, and so on—it was tragic—was not to take sides in the dispute, it was to protect young children, who do not have the same robustness as an older person and should not feel scared on their way to or back from school. I would take that view whether or not the protest by adults from outside the school community was one with which I agreed—about the climate catastrophe or whatever else it happened to be.

It is so important at this stage in the evening, before we get to the next group, to introduce the concept of the two-way street in relation to free speech. So I support my noble friend Lord Coaker in the thrust of his amendment, about schools being special—particularly primary schools, but possibly also secondary schools; that will be up for more detailed discussion—and needing some level of protection from whatever kind of protest by people from outside the school community.

I add that caveat because I think children should be able to protest themselves if they want to. I would not want inadvertently to do anything that caused criminal sanction for children and young people who chose to launch their own protest about whatever it was.

I see this very much as a probing amendment, but the status quo, whereby we have these protections as legislators in the vicinity around the Palace of Westminster —and companies have greater protections from pickets than primary school children have from aggressive demonstrations from whatever quarter—does not seem right. Human rights principles are: always protect children first, and any interference then has to be necessary and proportionate. But equal treatment and the two-way street, particularly in relation to freedom of speech and the right to protest, are crucial.

[Lord Paddick (LD)]

My Lords, I thank the noble Lord, Lord Coaker, who moved the amendment, which is about the need for fast-track exclusion zones around schools to prevent, in particular, anti-vaccination protests in the vicinity of schools.

If she will allow me, I said to the noble Baroness, Lady Fox of Buckley, I think after we finished on Monday night, how important it is to have her voice in the Chamber to test these sorts of issues. All I would say to her on this occasion is that the amendment talks about “activities carried on” that have

“a detrimental effect on the quality of life for pupils and staff”.

So it is not simply a question of banning any demonstration in the vicinity of a school. It would have to have that detrimental effect. I understand that that is a subjective judgment, but at least there is something there, rather than just a blanket ban on anybody protesting about anything at all.

Noble Lords will not need me to tell them that this is not about protecting children, perhaps older school-age children, from not being vaccinated. It is about protecting the whole community because, as we know from previous times in the pandemic, there is a risk of schoolchildren infecting vulnerable parents and grandparents. We also know from the health data that being double-vaccinated does not necessarily protect you completely from the worst effects of Covid, and in particular long Covid, although it gives you much better protection. On the news yesterday, an expert was talking about the fact that, although Covid has mild effects on children, it is not known how much they could be affected by long Covid. So this is not simply about a demonstration outside a school; this is a wider public health issue. However, I understand that, although that is what the noble Lord, Lord Coaker, is aiming at here, the amendment, if passed, would have wider implications than just for anti-vaccination protests.

Amendment 292S, from the noble Lord, Lord Bassam of Brighton, relates to online racism against footballers and enabling football banning orders to be made against those guilty of online racial hatred directed at a member of a football team. He is probably the best-qualified noble Lord to talk on this issue, bearing in mind his experience on the Front Bench in the Home Office under the Labour Government who introduced the banning orders in the first place, and the beneficial effect that they have had in rooting out racism in football. It is a serious problem.

Talking about a hierarchy of diversity is fraught with danger. But, as a gay man, I have always considered racism to be a far more serious issue than, say, homophobia. Some people might argue against this; but I could conceal my sexuality if people from a different planet did not know who I was or what my background was. But you cannot hide your colour; you cannot avoid racism in the way that some gay people, at least, could avoid homophobia; it would not be obvious to people.

I do not know of any professional footballers who have been open about their sexuality, because of their concerns about being open about it. Hopefully, as years go by and social attitudes change, some professional footballers will be open about their sexuality. They should be able to benefit from similar protection, so this legislation should not exclusively provide protection for racism, which is the major issue at the moment, while professional footballers’ sexuality is not. This is a good idea, and hopefully the Government will discuss how this can be taken forward.

This group is diverse—not in the sense of “diversity,” but in terms of the different subjects covered. Amendment 292U, in the name of the noble Lord, Lord Faulkner of Worcester, highlights a loophole in the law. My understanding—although I am not sure as there was no explanatory note—is that it is unlawful for scrap metal dealers to pay cash for scrap metal, but it is not against the law to sell it on for cash. That is the loophole. A scrap metal dealer who surreptitiously acquires stolen metal could sell it on for cash, and the noble Lord’s amendment would disallow that. The payment would have to be made by a traceable means, thus clamping down in the other side of the transaction, which makes sense.

We have debated the issue of scrap metal and the impact on the railway system and churches, for example, and the problem with catalytic converters. As shortages of resources are exacerbated by countries coming out of lockdown and the demand for raw materials grows, scrap metal will become an increasingly important issue. Therefore, closing this loophole regarding the other side of the transaction seems sensible, and we support it.

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I appeal to the Minister to listen to the numerous groups from across the country and the political divide who have asked for the noise trigger to be removed from the Bill. I ask her, in doing so, to prove that the Government do indeed support free speech.

[Baroness Chakrabarti (Lab)]

My Lords, I have a duty, first, and then, I hope, the privilege to make some comments of my own. My noble friend Lord Hendy is unable to be here to speak to his Amendment 304, so, if the Committee does not mind, I will read his remarks in support of that before I make a few remarks of my own on this group.

He says the following: he is grateful to my noble friend Lord Hain for adding his name to the amendment and to me for reading these remarks. The Delegated Powers and Regulatory Reform Committee, under the excellent chairmanship of the noble Lord, Lord Blencathra, on which he has the privilege to serve, criticised in its report of 13 September Clauses 55, 56 and 61 of the Bill for the surrender of the definition of certain phrases to delegated legislation, thus bypassing the full scrutiny of primary legislation.

At Second Reading, the noble Lord, Lord Blencathra, emphasised that his committee took no position on the substantive provisions but recognised that they are contentious and should therefore be in the Bill. My noble friend Lord Hendy goes on to say that he and many other noble Lords supported that argument, but the Government have not taken heed of this criticism, and the power remains to define by secondary legislation some very contentious phrases in these sections.

I continue to support the committee and the amendments brought by noble Lords—particularly that of the noble and learned Lord, Lord Judge—to obviate this procedural but fundamental flaw, but Amendment 304 goes beyond the procedural to the substance of Clause 56. That clause will be the basis for yet further restriction on the right to picket in an industrial dispute. That is objectionable because the right to picket, still extant in UK law, is already constrained in law in multiple ways which go far beyond those imposed on other kinds of public assembly. Further restrictions on the right are simply not warranted. It would be tedious to review the law on picketing today. Suffice to say, it is already highly regulated by statute, case law and its own code of practice.

By the Conspiracy, and Protection of Property Act 1875, 146 years ago, it ceased to be a criminal offence to attend

“at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information”,

although the use of violence, intimidation, damage to property, persistent following, watching and besetting were all made statutory offences. From this beginning, the right to picket was established. It has been further restricted many times since, including by the outlawing of picketing of domestic premises. The current formula is Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992. It reads:

“It is lawful for a person in contemplation or furtherance of a trade dispute to attend … at or near his own place of work, or … if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”


The Act defines both “place of work” and a “trade dispute”.

I should add in relation to the latter, in case any of your Lordships were unaware of it—which I doubt—that collective action

“in contemplation or furtherance of a trade dispute”

will not be lawful without the prior fulfilment of many statutory conditions. These include service of a highly complex notice of ballot on every relevant employer; a ballot in favour, which must conform with complicated and demanding thresholds on turnout and majority; and service of an equally complex notice of industrial action on every relevant employer. There are many provisions regulating all this in detail and many other requirements, such as the provision of mandatory qualified scrutineers, full postal balloting—no workplace or electronic voting is permitted—and so on.

Case law has held that Section 220 on the right to picket does not protect against private nuisance—interfering with someone’s enjoyment or use of land—nor against public nuisance in the form of violence, intimidation, molestation, excessive numbers, obstruction, blockade or an unreasonable obstruction of the highway. There is no exemption from the criminal law or the law of trespass, so this is all covered.

The Code of Practice on Picketing—the latest edition of which is from 2017—is taken into account by the courts and runs to 19 detailed pages of guidance. The code provides, among many other things, that

“pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate.”

In consequence, a requirement that there be no more than six persons on a picket line is applied as though it was statute law by both the police and the courts.

As if that is not enough, the Trade Union Act 2016 imposed yet further restrictions. The union must appoint a picket supervisor to supervise the picketing. They must be an official or other member of the union familiar with the code of practice and have taken reasonable steps to tell the police their name, where the picket is to take place and how they can be contacted. The picket supervisor must be in possession of a letter stating that the picketing is approved by the union, which must be shown to the employer if sought. This is very highly regulated.

The possibility of flying pickets and anything else that any of your Lordships might think requires restraint has already been closed off. Surely all this is enough. Picketing in recent years under this strict legislative regime has not thrown up problems which require further legislative redress, yet Clause 56 will give the police the power, in many sectors, virtually to extinguish life from the remains of this emaciated right.

Among other things, the clause gives power to a senior police officer to impose conditions on an assembly where the officer reasonably believes that noise generated by persons taking part may result in

“serious disruption to the life of the community”

or

“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”.

Senior officers seeking the meaning of these phrases will not find them in the Bill, which does not define either. Instead, the Bill will give power to the Secretary of State to create definitions by regulation. We can only guess how the Secretary of State might choose to define these phrases. However, we have a strong steer as to what she currently has in mind, because she has provided a draft set of regulations in relation to the meaning of the phrases. There is not, so far as I can ascertain, a draft of regulations to define

“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”,

but the draft regulations that deal with a

“serious disruption to the life of the community”

state:

“It may be regarded by the senior police officer as serious disruption to the life of the community if there is … a significant delay to the supply of a time-sensitive product impacting on the community, or … prolonged physical disruption to access to essential goods and services impacting on the community.”


They go on to say that a

“‘time-sensitive product’ includes newspapers and perishable items”

and

“‘essential goods and services’ means … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … a place of worship … an educational facility … a service relating to health, or … another critical public service.”

If pickets in a trade dispute are successful in persuading workers not to cross the picket line, it is obvious that, depending on the nature of the employer’s business, picketing may involve significant delay to the supply of time-sensitive products or prolonged physical disruption to access to essential goods and services. Accordingly, under Clause 56, the assiduous senior police officer may well impose conditions on workers who legitimately but noisily picket their place of work in order to persuade others not to work during a lawful industrial dispute in relevant sectors. Such relevant sectors will be where the workplace is involved in the production or delivery of food, water, power, railways, buses, places, lorries, ships, newspapers, mail, TV, radio, film, education, health, local government and so on. It is hard to think of many workplaces at all that will not be included.

Though the Explanatory Notes to the Bill do not expressly refer to picketing in an industrial dispute, it is plain that these draft regulations have given the game away. Clause 56 is precisely aimed at picketing in a lawful industrial dispute, whatever other assemblies may also be impacted. Accordingly, Amendment 304 proposes to exclude lawful picketing—subject to all of that regulatory regime that my noble friend Lord Hendy sets out—in legitimate trade disputes from these additional restraints. The Minister is invited to agree the amendment in order to exempt picketing from this intended regime, given that it is so closely regulated.

I am grateful to the Committee for its patience in listening to my noble friend Lord Hendy’s rationale for Amendment 304. Perhaps I may be indulged in making just a few comments of my own about this whole group. I shall try not to hyperbolise but do my best to disagree well with the noble Baroness opposite. I do not think that noble Lords who have spoken and expressed their concern so far have hyperbolised. Let me try to explain why some of us are so desperately concerned about the impact on freedom of expression and freedom of association of Part 3 of this draft legislation.

If we take existing tests, there is so much law already on the statute book, some of it passed by Conservative Governments, much of it passed by Labour Governments—much of which I objected to at the time, alongside friends of mine in the Conservative Party. I may be wearing a red dress now, but it was not always the case; I hope noble Lords opposite will understand that. Free speech is a two-way street and, in my lifetime, no Government have been perfect when it comes to protecting it.

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[Baroness Jones of Moulsecoomb (GP)]

Respect goes both ways. The Government are not respecting this House.

[Baroness Chakrabarti (Lab)]

I am happy to wrap up. I am sorry, I had to read for my noble friend Lord Hendy, who had an amendment, and that took a little time. I beg your pardon; I will be very brief.

I have talked about the past—suffragettes and anti-apartheid, et cetera—and I have talked about Russia and China and the places that we have to persuade, in the current, dangerous world, not to suppress protest. The domestic context is that we have come out of Brexit, which was incredibly divisive; whichever side you were on, we know that it divided communities. I was subject to protesters who were very cross with me, and a little scary, but in the end, I put up with it. We are coming through a pandemic, and people are scared and very worried by climate change. I do not believe that oppressive powers giving this level of discretion to the police to suppress free speech will bring our communities together.

[Lord Walney (CB)]

My Lords, if I may, I will speak succinctly on the noise amendments. I appreciated what the noble Baroness, Lady Chakrabarti, said about the two-way street, favourite protests and standing up for all protests, but I wonder about the extent to which we are actually doing that. I listened carefully to the persuasive argument made by the noble Lord, Lord Coaker, in introducing the Opposition amendment on fast-track orders for schools. I also listened to the excellent opening speech from the noble Lord, Lord Dubs; if that is the kind of protest which is being restricted, I am sure that a majority in both Houses would vote against it. Opposition Members have spoken in favour of protections around schools, and I can very much see the case for protecting schools. But are we really saying that untrammelled noise cannot be intimidating and unacceptable, in the manner which the Bill attempts to frame as a problem?

Anti-vaxxers outside schools were given as an example. Are we saying that noise should not be a factor if anti-vaxxers are making a sustained attempt to disrupt Covid vaccine clinics? Another entirely feasible example is a far-right protest that was seeking to intimidate council workers using high levels of noise, because the council was volunteering to bring in refugees and a section of that community did not want that.

The question raised by the noble Viscount, Lord Colville of Culross, was pertinent: is existing legislation sufficient to deal with this? I hope that Ministers will address that point when summing up and in bringing the Bill to Report. I am much less comfortable with the rhetoric which simply cites noise as beyond the bounds of regulation in a legal framework. We all know that many protests are noisy—I would imagine that the majority of us in this Chamber have been on such protests—and that is a good thing. But it is surely not what this legislation is intended to debar.

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[Viscount Goschen (Con)]

My Lords, my speech can be very quick because I should just like to associate myself with the remarks of the noble Lord, Lord Hogan-Howe. It was an exceptionally informative and balanced speech about just how difficult these issues are and how difficult the job of the police is to draw that balance and get it right. We should all be extremely grateful that we are policed in such a consensual and high-quality way.

I spoke about this at Second Reading and we have had an exceptionally interesting debate here in Committee. I shall make just a couple of points. First, we ought to avoid, if at all possible, differentiating between good protests, on an issue that I agree with, and bad protests, on an issue that I disagree with. We should resist the temptation to talk about specific causes. The noble Baroness, Lady Chakrabarti, made that point in one of her two speeches; I think that it was the second one.

[Baroness Chakrabarti (Lab)]

Forgive me, but I did not make two speeches. I asked the Committee’s permission to read the remarks of my noble friend Lord Hendy because he could not be here to speak to his Amendment 304. I thought that I had the consent of the Committee. If I misunderstood that, I apologise, but I did not intend to make two speeches on my own part.

[Viscount Goschen (Con)]

My Lords, the noble Baroness spoke for nearly 20 minutes and I am attempting to speak for about two minutes.

We ought to avoid drawing the distinction to which I referred. However, there is a clear difference between a lawful expression of protest drawing attention to a particular issue, wanting it to be heard, and a deliberate and aggressive attempt to disrupt the lives of the general public. That is what we have seen over recent weeks. It is entirely reasonable that we look carefully at the current legislative settlement and examine what can be done with the existing powers. I hear the remarks made that the police have the powers that they need. Some feel that they do and others do not. That matter should be carefully looked at.

However, where there are gaps and where the police require additional powers to take those finely balanced judgments, it is entirely legitimate that we look at that in the Bill while maintaining a clear balance and making sure that we do not trespass too much on some of the issues that have been raised around, for example, noise. In essence, there are grounds for a constructive debate and finding that balance. It is never going to get everyone’s support but we all ought to look beyond the Westminster bubble and consider the reaction of the general public when they see their lives and critical national infrastructure such as transport being substantially disrupted and when the police are unable to deal with it effectively.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I put my name to Amendment 308 in the name of my noble and learned friend Lord Judge and shall say a few words in support of what he has just said. It was quite clear from the reply by the Minister to the previous group that these words, “serious disruption”, are the key to the proportionality of the clauses that we are considering. They are absolutely central to the whole proportionality of the scheme. Of course, if something does not amount to a serious disruption, the police take no action; if it does amount to that, within the ordinary meaning of the word, the police have authority to do so.

I mention that because, while I support entirely what my noble and learned friend has just said, there is an element of risk here, which I think the noble Lord, Lord Rosser, hinted at in his comments in the last group. It is the risk of lowering the threshold. Why else is the power being taken? If it is not in the present Home Secretary’s mind to lower the threshold, the risk is there. It is for that reason that I suggest there is a risk here that should be avoided.

There is also the point about the clarity of the legislation. One element of the rule of law is that the law should be accessible, and the more you attempt to define words by regulation and not in primary legislation, the more inaccessible the true meaning of the words becomes. It is not a way to go down—it is unnecessary, as my noble and learned friend said—and I hope very much that the Government do not proceed with this scheme.

[Baroness Chakrabarti (Lab)]

The noble and learned Lord is exactly right about this constitutional problem, but there is a further point to be made. In this context, it is not just the usual problem of allegedly unclear legislation that is then going to be sorted out by regulation later, and the relationship between the Executive and the legislature not as it should be. It is also in danger of interfering with police operational independence. To be explicit about this, my fear is that the police will take whatever view they take of what this legislation means in certain circumstances and do their best—and if a Home Secretary of the day, even well into the future, thinks that the police are being too lenient towards protesters, or perhaps there is a commotion in the media, regulations will be used further to define what “serious” and “disruption” mean so as to mandate the police effectively to be more heavy-handed than the natural meaning of the words would suggest.

[Lord Paddick (LD)]

My Lords, I can be relatively brief. Do not worry—it is a temporary blip.

Amendments 298, 308 and 319 question “serious disruption” being decided by the Secretary of State rather than being either defined in the Bill, as my noble friend Lord Beith proposes, or simply left to its natural meaning, as the noble and learned Lord, Lord Judge, suggests in his Amendment 308.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I apologise. I forgot to speak to five more amendments: Amendments 319Q, 319R, 319S, 319T and 319U, which remove the ability for SDPOs to be renewed.

[Baroness Chakrabarti (Lab)]

My Lords, I will be brief and not repeat the valid and chilling points that have already been made. I just say this: for me to even attempt a line-by-line examination of this whole suite of new amendments would result in not just the Leader coming in to censor me again, but me probably being arrested. I am not going to do that, but I will try to say two things that noble Lords have not said yet.

On locking on and in particular going equipped for locking on, and stop and search with or without suspicion of locking on, I am worried not about the glue referred to by the noble Lord, Lord Paddick, but about people with bicycle locks. I am worried about young people going about their business, sometimes riding to a demonstration or being in the vicinity of potential demonstrations, carrying bicycle locks. I cannot see how they are not potentially in jeopardy, en masse, of both the stop and search powers, and going equipped.

Secondly, as a former Home Office lawyer and a director of Liberty, to me, this suite of measures, which could be a Bill in itself, looks, smells and tastes a lot like anti-terror legislation of the kind that I have always opposed as being disproportionate and counterproductive. Whether it is the new orders, the stop and search powers, including suspicion, or offences including thought crimes, this new Bill within a Bill looks like some of the anti-terror powers that, when they were introduced, noble Lords opposite and elsewhere, and I and some of my noble friends—forgive me, I hope—looked the other way. Those powers have inspired what we see here, but this time they are not for terrorists but protesters.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the Minister gave a powerful justification for upgrading and updating the criminal law to deal with these new forms of protest. She made the point that the general public have had enough, and we recognise that. We have all seen instances of workers begging protesters to let them through to go to work, parents trying to get ill children to hospitals and so on. We have seen frustration turn to fury and people often taking action on their own, dragging protesters away as the police have stood by. At least this section of the Bill makes sense to me based on that motivation, but we have spent hours and hours on previous sections on banning the types of protest in Part 3, which was justified on the basis that it was dealing with those kinds of actions, when in fact none of the measures that we previously discussed would deal with them at all.

The measures that we previously discussed in Part 3 elicited some very fine speeches about the right to protest. I was struck most recently by the speech by the noble Lord, Lord Coaker, which I related to. We were probably on the same miners’ demos. It properly and entirely understood why people were demanding the right to protest. All those fine words were effectively shot down by the Minister on the basis that these are things that we need to do to deal with Extinction Rebellion and these different kinds of protest. In fact, the only dealings that I had when I got caught up in an Extinction Rebellion protest—I mean that I was trying to get through it, rather than that I was on it, in case anyone panics—was when they were doing a five-hour silent vigil in mime. There was no noise involved. But we have spent all that time discussing how noise is going to trigger the police having a huge amount of power to deal with those people.

I find it utterly galling, because now we have a set of amendments, and at least I can understand why the Government have brought them in—and the public will think that they will tackle what they are furious about—and we should therefore, in this House, be able to scrutinise them line by line, as has been explained. People will probably like the locking-on offence—I say “people”, meaning that there might be popular support for it. But the noble Lords, Lord Paddick and Lord Beith, have done a really good take-down of what the consequences of these measures would be beyond the headlines, and people might be less keen on the equipped to lock-on offence. Certainly, when they work out the frightening aspects of the serious disruption prevention orders, they might want to think again. The “causing and contributing to” aspect, as the noble Lord, Lord Paddick, noted, really is a very serious threat to free speech—absolutely. And this is a Government who claim all the time that they are here to defend free speech, but they are introducing, without even casually noting it, something that would absolutely have a damaging effect on free speech.

Maybe I am wrong, and maybe the Government could persuade us that these special kinds of protests need special laws, in which case we should have hours and hours to discuss it. Instead, here we are, fed up, having discussed a whole range of other legislation that was supposed to deal with these issues when in fact, it did not; and now, the things which might deal with those issues we do not have time to discuss. It is frustrating for all of us.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Barker (LD)]

My Lords, we clearly have a division in the House about the merits of this amendment. There are those of us who quite clearly understand the way in which the terms “sex” and “gender” are used and have been used, not just in this country—under several bits of legislation, most importantly the Gender Recognition Act—but also in international law. There is a growing body of international law in which “gender” and “sex” are well understood.

I simply want to ask the noble Lord, Lord Wasserman, to explain three points that he made in his speech. First, he said that the intention of this amendment was to keep the public safe by the accumulation of accurate, appropriate, timely and consistent data. If that data is not aligned with a person’s gender identity, then it will not be accurate, so how can he ask us to accept it? Secondly, he told us that we should not get bogged down in modalities, but this is about a very practical exercise of gathering data, not in a theoretical way and not on the basis of gender-critical beliefs but actually on the basis of people’s lives. Does he not think that this is important enough detail to put into primary legislation? Finally, he said that experience has shown that it was very useful to gather information about sex and gender. Whose experience? Can he give us more information about that?

[Baroness Chakrabarti (Lab)]

My Lords, I will speak briefly. I thank all noble Lords who spoke to this. It is a controversial amendment, but I think it has been spoken to quite sensitively, all things considered; maybe it is the lateness of the hour—maybe that was a good move.

I agree with the previous speaker that difficulties in the drafting of an amendment cannot just be dismissed as modalities because when we put forward draft amendments to legislation and say “must” we need to examine what that means. If, as the amendment suggests:

“Police forces in England and Wales must keep a record of the sex registered at birth of each person”,


how is that going to be executed and what will the consequences be? One has to imagine that one is a younger version of the noble Lord, Lord Paddick, in the police station back in the day. People turn up to record whatever it is—a theft, shoplifting, burglary, or a violent offence. How is this recording of the birth sex as well as the subsequently declared gender going to happen and what is the sanction for the “must”? That is not a modality, it is what law requires; there have to be consequences to a “must” being breached. Whatever is really going on, I know there are really sensitive issues in our society at the moment of sex and gender which we will not, I suspect, resolve tonight—we might, but maybe not.

I agreed with my noble friend about the value of data. Whether in the health service or criminal justice system, data is great, but there is another side too, which I think my noble friend acknowledged: that data will put some people off. There are other jurisdictions not far from here where people are really nervous even about declaring their race because of obvious historic reasons for being sensitive about declaring your race at the police station—let alone declaring your birth sex.

We need to see the yin and yang of this particular debate. On the one hand is the brilliant research and analysis of crime we could do if we had more and more data. But on the other hand—and this is not completely different from the previous debate—what we want is victims to come forward and criminal justice to be done. We do not want to do anything that discourages victims from coming forward and reporting crime. That includes people who feel anxious about certain sensitive pieces of information about themselves. We would never want them to put off going to the police station for fear that they say too much. For instance, a person who has been burgled thinking “Was I burgled just because I was burgled, or because I am a trans person? Do I really want to draw more attention to myself because I am an anxious victim of crime?” We need to think about that, let alone the poor old practicalities for a younger version of the very youthful-looking noble Lord, Lord Paddick.

[Lord Paddick (LD)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, for introducing my speech. This amendment is designed to compel police forces to

“keep a record of the sex registered at birth”

of anyone who is a crime victim or who is arrested by the police for a crime. It also forces the police to

“keep a record of the acquired gender of each person with a gender recognition certificate”

who is a crime victim of crime or is arrested for a crime.

It also says that providing this data to the Secretary of State will not be an offence under the Gender Recognition Act. Again, I want to try to focus on the amendment and not get drawn into the wider debate, as far as I can. As the noble Baroness pointed out, I was a police officer for over 30 years, so I want to look at this from the perspective of the police.

How will a police officer know what the sex registered at birth is—thumbscrews, or a chromosome test—even without the consent of the victim? Maybe they could force victims to give their fingerprints, in the hope that they may have had their fingerprints taken before they transitioned and that will prove it—except they may have had them taken after they transitioned, and that will then show their acquired gender, so that will not work. Will victims have to produce their birth certificates before they are even allowed to report a crime? Of course, if someone has acquired a gender recognition certificate and used it to have their birth certificate changed, as they are legally allowed to do, the birth certificate will show their acquired gender, so that will not work either. How exactly will police forces keep a record of something they do not know and have no reasonable way of finding out unless the victim or perpetrator volunteers the information?

If the victim or the perpetrator is a trans person, they are legally protected from having to disclose that information. “Well, it’s obvious,” some people will say, “you can tell, can’t you?” I have met trans men who you would never believe were assigned female sex at birth and trans women who you would never believe were assigned male sex at birth. I have also, embarrassingly, been with a lesbian friend of mine, assigned female sex at birth and who has always identified as a woman, who was stopped going into a women’s toilet in a top London restaurant because they wrongly thought that she was a man.

The supporters of this amendment may say that if they do find out, maybe the police can record it—that maybe the victim is reporting a transphobic hate crime or for some other reason volunteers that information.

The second part of the amendment is totally unnecessary. Section 22(4) of the Gender Recognition Act 2004 already states:

“But it is not an offence under this section to disclose protected information relating to a person if … (b) that person has agreed to the disclosure of the information”—


for example, if they are the victim of a trans hate crime—or, as stated later in the same section, at paragraph (f),

“the disclosure is for the purpose of preventing or investigating crime”.

So the police can use that information already, without fear of being prosecuted. The amendment is not necessary if the victim or perpetrator volunteers the information.

My noble friend Lady Brinton asked if she would have to declare every time she becomes a victim of crime, even if it is a burglary, that she has a disability? What about me? Will the next step be that I have to tell the police that I am gay before I can report that my flat has been broken into? For what purpose should victims have to out themselves? What if I get caught stealing a bottle of Marks & Spencer Prosecco?

[Baroness Chakrabarti (Lab)]

You can do better than that.

[Lord Paddick (LD)]

It is very good, actually; I had some on Saturday. I have not tried to do that but if I did, will I have to admit being gay, as well as being a shoplifter?

In 2018, the Government tentatively estimated that there were between 200,000 and 500,000 trans people in the UK. Noble Lords have said they like data; I am going to give them lots of data. Between the Gender Recognition Act coming into force and 2018, 4,910 trans people have been issued with a gender recognition certificate. If we take the top of the range of the estimate, I make that 0.75% of the population identifying as trans and 0.0076% of the overall population having a gender recognition certificate, or less than one in 10,000 people.

Even if a victim went through the whole criminal justice process without disclosing, and without the police establishing the sex assigned to them at birth, if they were a trans woman, it would increase the number of woman victims, and if they were a trans man, it would diminish the number of woman victims, and taken together, and taking account of the total number of trans people, it would even out. Taking into account that only a fraction of them will become victims of crime who report it to the police, any difference to the crime statistics will be statistically insignificant.

The police arrest, on average, 12 in 1,000 people each year—three in 1,000 women. I do not know how many of the estimated 7.5 in 1,000 trans people are trans women and how many are trans men. Of course, if trans women are counted in the female offender figures, they will also be counted in the female population figures, boosting both the numerator and the denominator. I was never any good at mathematics—I left that to my twin brother—but it is quite clear to me that trans people are not going to make any statistically significant difference to the crime figures unless we assume, and there is no factual or statistical basis to think otherwise, that trans people are more likely to commit crime or to commit particular types of crime.