Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to support the noble Lord, Lord Paddick, in tabling this amendment, and it is the reason that we first met. When I heard about this commander down in Brixton who had an innovative way of dealing with cannabis possession, I went down there very quickly to meet him and find out exactly what he was doing, and I was very impressed.

He has laid out the rationale behind the amendment extremely thoroughly and with great insider knowledge, but I will throw in what the Green Party has been saying for the past 50 years. Our drugs policy is to create a regulated drug and alcohol market that is focused on safety and harm reduction, which our current policy is clearly not. In the interim, decriminalisation is important, but it will never be as effective at reducing crime and improving health outcomes as a fully regulated system.

Many police forces have de facto decriminalised cannabis. They have seen that it just does not work to keep on with this targeted racist behaviour. The amendment would be a very welcome step. At the moment, it is a gateway power which allows the state to interfere with people and search them for something that should not even be illegal. As the noble Lord, Lord Paddick, said very clearly, it alienates communities at the very point at which you need those communities to help the police with intelligence. I have been out with quite a few stop and search teams. I have seen it done well, but that was the exception. I have seen it done okay and done extremely badly. It is an issue of training as well as for the law itself, and it is used in discriminatory ways. This is a brilliant amendment. Well done to the noble Lord, Lord Paddick, for tabling it.

[Baroness Chakrabarti (Lab)]

My Lords, I speak to Amendment 276, to which I have added my name. Suspicionless stop and search is a significant problem for community relations in this country. It is a significant problem for trust in the police. In recent days, we have rightly given a great deal of time and attention on all sides of your Lordships’ House, including in this Committee, to trust and confidence on the part of women, and young women in particular, but we must not forget other aspects of broader trust and confidence, including the issue of young black men and policing.

Decades after the Lawrence inquiry, we still need to keep returning to this issue. No power or set of powers has probably done more to weigh against the strides made by the late Sir William Macpherson and by everyone across politics, including former Prime Minister, Theresa May, to try to address problems with stop and search. No power has been more problematic than that of suspicionless stop and search in general and Section 60 in particular.

This is really not a partisan issue. Your Lordships know that, long before I came to this House, I was a civil liberties campaigner and not popular with Governments of either stripe in relation to powers such as these. In my view, there has been an authoritarian arms race about law and order in this country for too long. No Government are perfect. No Opposition are perfect. This is a good moment to look at stop and search. There is no better parliamentarian to be leading us in this conversation than the noble Lord, Lord Paddick.

The problem with suspicionless stop and search is this. No human is perfect; therefore, no police officer is perfect. Stop and search, conducted by humans of other humans, even with reasonable suspicion, is problematic, but there is no choice if we want to combat crime and investigate offences that have happened or that might yet take place. We have to have powers to stop and search. They are problematic, even when based on reasonable suspicion because what is reasonable suspicion? Who do we think is going equipped? Who do we think meets the profile of somebody who committed an offence a few hours ago? Of course, it is hard for any citizen, including constables, to rid themselves of all the baggage that comes with being in this—or any—society. Those problems are so compounded when reasonable suspicion is taken out of the equation.

Section 60 of the Criminal Justice and Public Order Act gives the power—which is triggered by a senior police officer, but a police officer none the less—effectively to change the criminal law in an area for the period in which that power is triggered. In that particular part of town, there is effectively a suspicionless stop and search zone. We are often talking about urban areas, and areas with a very high density of people from certain communities. The noble Lord, Lord Paddick, can correct me if I am wrong. Within that area, young black men in particular know that that is a stop and search zone. Their first encounters with the police service are often very negative.

Because of the rise of the internet, mobile phone use and videos of incidents, this material is now there to be viewed. I have seen some very disturbing scenes of quite young boys being stopped and searched, without suspicion, on streets not many miles from here. These young boys and men do not have the protections that they have post-arrest in the police station. Arrest is based on reasonable suspicion. Officers usually stop a young man. The noble Lord, Lord Paddick, gave the statistics. If you are a young black man you are many more times likely to be stopped and searched than if you are a young white woman, let alone a middle-aged woman like me.

Sometimes officers will be situated in a particular place. I understand their reasons. They are worried about knife use, for example. Some young men are being stopped on a routine basis. Sometimes big, burly officers make a human wall around a boy of perhaps 13 or 14 years-old. I have seen the pictures. People in that community—bystanders, if it happens in the daytime—will be trying to remonstrate with the officers. They will be held back. This young man—13, 14 or 15 years-old —is having his first encounter with the authorities. He is frightened. He is behind this human wall of big, burly officers. There is not even reasonable suspicion that he has done something wrong.

It seems to me that this is very dangerous—and it is not an occasion where I can even blame the police. It is an occasion when I have to look to the statute book itself, because this is about legislators, not police officers. I have been critical in other debates, and I am afraid that I will have to be critical about some decisions that the police have made. But this is a legislative problem, because legislators from both major parties have allowed this regime to be triggered for suspicionless stop and search, and it has created problems over many years. It really is time to address this.

This seems like a radical probing amendment from the noble Lord, Lord Paddick, but if Section 60 were removed from the statute book, what would be the consequence? There would still be ordinary, democratic, rule of law-based powers to stop and search with reasonable suspicion. That is a fairly low threshold in any event, I would argue, but this ability and power to designate particular areas—everybody knows where those areas are and who is affected in them—would go. I cannot think of a more positive signal and progressive step for any Government, any party and any legislator who cares about race relations in this country, and cares about rebuilding trust in policing and the rule of law.

So once more I find myself thanking the noble Lord, Lord Paddick, and I feel that I will do so again a few more times in this Committee.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have some questions for the Government on Amendment 129, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones of Moulsecoomb.

Drugs policy and the drugs trade have come up in our debates on this Bill as part of the debate on the serious violence reduction duty, particularly regarding child exploitation and county lines. It will come up again shortly when we look at the groups of amendments on road safety and dangerous driving under the influence of drugs and alcohol. There is a complexity of links in multiple areas of policy, be they poverty, health or criminal justice. On the serious violence reduction duty, the Government’s stated aim is to reduce serious violence through a public health approach. So my question to the Minister is: what work is being done alongside those plans to look at a coherent public health approach to drugs policy? As with serious violence, there needs to be a focus on what reduces harm, not just what deals with the symptoms.

Amendment 129 is specifically about removing the power of the police to search people for drugs for personal use only. The noble Lord, Lord Paddick, gave a very informative history lesson, if you like, on his part in the “no arrest” policy in Brixton. I thought I might update what he was saying with my perception as a magistrate who sits in criminal and youth courts in London. I can say with reasonable confidence that I very rarely see in front of me, for the possession of class B drugs alone, either a youth or an adult who is of good character. I really cannot remember the last time I saw that in a court in which I was sitting. In my experience, when that is charged, other matters are charged as well, or the amount of drugs found on the person is at a much higher level but, nevertheless, the CPS chooses to charge that person only with possession rather than possession with intent to supply. Nevertheless, it is an interesting amendment, and the noble Lord raised a number of interesting points about the appropriateness of that power of the police under Amendment 129.

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[Baroness Chakrabarti (Lab)]

Could I put an ethical and constitutional question to my noble friend, who is both an experienced parliamentarian and a magistrate? When I go to the airport, I understand that I shall be subject to some search, and I have no problem with that—first, because I understand that an airport is a very sensitive place and, secondly, because everybody will be subject to the same search as me. Therefore, I feel no disgruntlement. Equally, with ordinary stop and search powers, if I am stopped and searched on reasonable suspicion of a criminal offence, I may know that I am completely innocent but I shall understand that I have been stopped and searched on reasonable suspicion of a criminal offence.

What is the ethical and constitutional justification for stop and search without suspicion, when everybody is not stopped and searched, as at the airport? If not a suspect and if not everybody, who then? My fear is that, subject to the answer that my noble friend—and, I hope, in due course, the Minister—will give, the answer is that that in-between stop and search, a suspicion under Section 60-type stop and search, is almost inevitably an arbitrary and therefore potentially discriminatory stop and search.

[Earl Attlee (Con)]

The noble Lord, Lord Ponsonby, made a very interesting speech. For about the first 40 years of my life, I lived in north-west London and—on this discrimination point—I have never been stopped and searched by the police. I have had my vehicle stopped a few times, but I can perfectly well understand why the police did it. So it is quite an interesting point on discrimination.

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As part of our Section 60 pilot, the Government asked the College of Policing to update its stop and search guidance to ensure fair and proportionate use. The updated guidance was published in July 2020 and provides best-practice examples for forces to use on community engagement and scrutiny. We expect that forces will follow the guidance in their use of the powers. The Government will always give the police the tools they need to tackle serious violence and other crimes, and I do not think it is in the best interests of public safety to repeal these important powers. I hope that, with those words, the noble Lord will be happy to withdraw his amendment.

[Baroness Chakrabarti (Lab)]

Before the Minister sits down, will she briefly address the question I put to my noble friend Lord Ponsonby, because I think it is crucial to what a legitimate use of Section 60 looks like. If I am a young man who feels I might be particularly affected by this, and after a crime there is an area that has been designated and cordoned off and everybody is being stopped and searched when they enter those two streets—like at the airport—I can understand that. Similarly, if I am stopped and searched under “reasonable suspicion” powers, I understand: I may be innocent, but there is a reasonable suspicion that I meet the profile of the suspect, or I have otherwise given rise to suspicion in my conduct. But how is Section 60 ever to be used in a way that is not arbitrary, and therefore most likely discriminatory? Why have I been targeted for a suspicionless search? How can I be legitimately targeted for a suspicionless search?

[Baroness Williams of Trafford (Con)]

Of course, Section 60 is based on local policing intelligence in specific local areas. The noble Baroness has already pointed that out. I have talked about the safeguards, including statutory codes of practice, the use of body-worn video and external scrutiny; I will also talk about the use of data. The Home Office collects more data on stop and search than ever before. The data is published online, allowing local scrutiny groups, PCCs and others to hold forces to account and we discuss it with the relative NPCC leads in forces to understand why disparities occur, if they occur. HMICFRS inspects forces’ stop and search data annually, and extensive data is also published to increase trust and transparency. So, there are a number of things on which we test ourselves and are scrutinised to ensure that stop and search is not being used in an illegal and discriminatory way.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I congratulate the Lib Dem and Labour Front Benches on tabling these amendments. I had to laugh when I saw them, because you sort of assume you can expect duty of candour; it really should not have to be emphasised in the way that it has been here.

I have had a number of clashes—perhaps I should say experiences—with the police not exercising candour in situations where they really ought to have done. Examples include freedom of information requests, subject action requests, legal proceedings, police complaints and the Independent Office for Police Conduct. The end result of all these processes, which others have gone through as well, has been a great deal of frustration and anger and very little progress. I trusted the police less; I am sure most people would find this to be their experience. Rather than feeling that wrongdoing had been put right and the truth exposed, I felt there were cover-ups.

Obviously, if we pass this amendment, we ought to expect candour in the other place as well, but I feel that would be a step too far. I am afraid that the Government are not very honest—in fact, they are duplicitous. The Minister—the noble Lord, Lord Wolfson—talked earlier about what they have done today as being morally right, but I think that is absolutely wrong. It is wrong of him even to say that; it was not morally right. Coming back to the amendment, I say that a duty of candour is something we ought to expect from our Government, but we absolutely cannot. Therefore I am not very optimistic about these amendments, but the Government really should put them in the Bill.

[Baroness Chakrabarti (Lab)]

My Lords, I am more optimistic about these amendments than the noble Baroness, Lady Jones of Moulsecoomb, and want to help her find some optimism. However, I first pay tribute to the noble Lord, Lord Paddick. I feel that his speech is historic and will be remembered in this country for a very long time. It must have been so hard to make; we all know that it is hard to speak out of turn in general, but it is particularly hard when you are speaking about your own profession, service, career and friends. I hope that Members across this Committee will share that tribute to him.

I hope the noble Lord will forgive me—he has trailed this already—that in terms of these amendments we have to prefer that tabled by my noble friend Lord Rosser. I congratulate my noble friend on not just his speech but this amendment, which was no doubt prepared with his colleagues and team. This is why I am optimistic. I do not believe that the Minister—the noble Baroness, Lady Williams—is unsympathetic on this issue. There is not really a problem with something like the amendment proposed by my noble friend, not least because he anticipates the potential challenges that might come the other way. For example, there is of course a need to protect privacy, data protection and national security. Any duty of candour would have to be subject to those things, but my noble friend has already done so much of the thinking. The Minister also has the considerable resources and expertise of government, the government legal service and parliamentary counsel at her disposal, but I remind her that the Daniel Morgan review was commissioned by a Conservative Home Secretary, who had been and gone as Prime Minister before the review was published, with its excoriating comments, some of which I repeated on Monday evening.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I did not participate in Second Reading on the Bill, but I did get some correspondence that explained to me what was going on, and I just could not believe it. I am not going to repeat the arguments which were so eloquently put by the noble Baroness, Lady Fox, and the supporters of the amendment but I could not believe it. As an employer, I am required to do criminal record checks and if I got a response that said someone was guilty of hate crime, I am afraid their application would go straight in the bin. Yet we discover that people can be put on such a list without their knowledge, as my noble friend Lady Noakes said, and that their name will stay there indefinitely. That of course does not apply to people who have actually been convicted of crimes, so they are in the worst of all positions.

Then there is the arbitrary nature of this recording, so I wondered how big a problem this is. I am told that there have been 119,934 of these incidents recorded by 34 police forces and that 2,130 of them were done by children. It is extraordinary that this could be happening and is part of a wider concern where our free speech is being undermined. I went on Twitter; I think I lasted about three months. I have spent 40 years offending and upsetting people with the things that I said. So far as I know, I am not on a list as having committed a hate crime.

However, the essence of our democracy is that there should be free speech and that our police should be in the business of finding out what the evidence is, not turning into the people who conclude and are, in effect, prosecutors. I will not detain the House but among the examples given was someone who expressed the view that trans women should not have access to women-only spaces. Well, I believe that; is it a hate crime? Am I not allowed to say that? The fact that someone could be put on such a list indefinitely offends against our democracy.

I am sure my noble friend the Minister will have a brief, because all Ministers always do. I am sure she will have her brief from the Home Office—I worked in the Home Office for a while—and it will say that the amendment is not perfectly drafted and that some provision elsewhere could cover it, and all the rest. I hope she will throw that away and give an undertaking not only to bring forward a government amendment but, this very day, to get on to the College of Policing and end this absolute outrage.

[Baroness Chakrabarti (Lab)]

My Lords, I think I am probably quite woke, and proud to be so; none the less, I support the broad thrust of the amendment from the noble Lord, Lord Moylan, subject to a couple of caveats. The first caveat is a slightly light-hearted one. As a serial offender, I gently say to noble Lords and friends across the Committee that the overuse of adjectives named for great writers does not always help the cause of human rights. We have all done it: “Dickensian” for socioeconomic rights and “Orwellian” or even “Kafkaesque” for civil liberties. “Chilling” is similar. In fact, an online wit once said of my overuse of these terms: “That Chakrabarti woman finds everything chilling. She sees refrigerators everywhere.” That is just a gentle point about the way we frame this.

I support the broad thrust of this, but the problem is not just about allegations of hate. It is about soft information, as it is sometimes called, or allegations that are not capable of sustaining a criminal charge and should not sit on databases for years and years, or indefinitely. This problem has been growing for many years with the rise of the database state and the potential to hold all sorts of data, even if it never matures into a charge. That is dangerous.

In my previous role as director of Liberty, I saw many cases of this kind. Not all involved free speech. I remember one woman who had allowed her small children to play in the park while she went to a kiosk, and people thought they were unattended. She was cautioned by the police because she was at the borderline, they thought, of neglect, but there was no question of pursuing a charge. None the less, this data sat around for years and was hugely detrimental to her when she sought to work in positions of care.

This is not just about the glorious culture wars that have got everyone to their feet today. It is not about your views on trans inclusion or not, but about whether so-called soft information or police intelligence that never matures into a charge should sit unregulated, off the statute book, as a matter of police discretion and administration. Whatever our views on the free speech point, we surely have to agree with procedural point that the noble Lord, Lord Moylan, was right to make clear.

I remind noble Lords that free speech is a two-way street. It is not just about the woke and so-called cancel culture; it is also about protesters who feel that they attend demonstrations and sit on police databases for many years just because they have been caught on CCTV. We in your Lordships’ House would do a great service to the nation if, whenever we consider these so-called culture wars that centre around identity politics and in particular free speech, we remember that it is a two-way street. It is people on either side of very contentious arguments who sometimes want to “cancel” each other, and we should remember that.

My final point is a substantive one about the way I urge the Minister to take this forward. Given that the concern is about not just hate incidents but all soft information that may be held indefinitely, can the Minister’s response today—or on Report, with, I hope, substantive government safeguards—be comprehensive and address not just non-crime hate incidents but all soft intelligence and all police data about individuals that could be to their detriment going forward, whether it touches on free speech rights or other rights such as Article 8 rights to privacy and autonomy? Can this soft information that has been held administratively by the police be on the statute book and brought under proper regulation and control?

[Lord Judge (CB)]

My Lords, the issue is very simple. We surely have to decide whether hate crime and non-hate crime, and all their different manifestations, should be left to police guidance, or whether the issue is far more important than that and should be brought under the process of Parliament—legislative control and legislative process. To me, the answer is perfectly clear: the latter.

Queen’s Speech

Baroness Chakrabarti Excerpts

Tuesday 18th May 2021 Lords Chamber

[Baroness Chakrabarti (Lab) [V]]

My Lords, on 17 September 2019, I attended the first day of an historic sitting of our Supreme Court. It was subsequently to rule unanimously—as I had repeatedly warned and argued—that the Government’s prorogation of this Parliament was a grave and unlawful abuse of power. As I walked out into the lunchtime sun, with just one young female colleague, we were the target of a noisy, at times abusive, and even racist demonstration. Noble Lords may remember the mood. Despite a counterdemonstration, there was a negligible police presence; however, neither group surged. It was unpleasant, but I was unafraid for my safety and would never have dreamed of making a complaint. Nor did I hear a complaint from anyone associated with government—quite the contrary. I do not believe that the streets outside Parliament or our higher courts should be islands of tranquillity, nor that I should be protected from offence, let alone dissent. I fear that this Government display a thinner skin.

The Minister is a commercial lawyer of considerable distinction. I am merely one of the public lawyers whom he mentioned in his opening remarks. Indeed, I am one of the activist lawyers to whom his colleague, the Home Secretary, often refers disparagingly. However, I hope he will agree that I have always tried to disagree with him kindly and well.

In my view, the best way of protecting free speech and democratic dissent is to show and not tell. These values cannot be imposed, like some kind of one-way system, with the stroke of the town planner or a parliamentary draughtsman’s pen. Freedom of expression, liberty and equality under the law constitute the ultimate two-way street. I urge the Government to recognise this and not continue to prosecute a culture war in which there is one law for some—especially the Executive.

For many public lawyers and vulnerable people, including the desperate refugees some of us spend our lives representing, attempts to clip the wings of judicial review look nothing short of retribution for the prorogation case of 2019 to which I have referred. It is like losing 11-nil in the FA Cup final and coming for the referee with a baseball bat. Attempts in the Police, Crime, Sentencing and Courts Bill to curtail peaceful but noisy and impactful protest by law seem like a response to the growing international recognition of the Black Lives Matter and Extinction Rebellion movements that will just as easily be used against vigils such as that for Sarah Everard. It is an illiberal dog whistle at a time when the Government should be attempting greater post-pandemic unity and equality—the rule of law, not more divide and rule.

An essential government free speech czar for universities is an oxymoron indeed, not least when these institutions are bound by Article 10 of the human rights convention —our first amendment if you like—and subject to judicial review. Perhaps the Government would do better not to threaten such protections and demonstrate the tolerance and civility that they demand of others.