Victims and Prisoners Bill

Debate between Baroness Chakrabarti and Earl Howe

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Earl Howe (Con)]

My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.

On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.

My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.

Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.

As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Earl for giving way. I have not spoken in this group so far, because I agreed with everything said by the proposers and did not want to take up the Committee’s time, but, in the light of what I have just heard—in general, but also specifically about counselling notes— I feel moved to. A general obligation on necessity and proportionality is not going to cut it, I am afraid, because counselling and therapeutic notes are special. Just as legal advice is special, and subject to special protection in the courtroom, there is no reason why we cannot act to make such notes special too.

I appreciate that the noble Earl is heroically stepping into another’s brief, no doubt at short notice, but I think that it is for the department to reflect on the quality of thinking so far. Waiting for the Law Commission will take too long. There are already too many women who have not come forward to report their rapes because of the well-publicised problem with counselling notes. They are being counselled by public authorities to choose between counselling or taking their criminal case forward—this is totally unacceptable.

My goodness, the irony of relying on general principles in the Human Rights Act is perhaps the richest I have heard in a long time, given some of the positions that senior members of the Government are taking on that Act and the ECHR. I hope the noble Earl will reflect on these answers or urge others responsible to reflect.

--- Later in debate ---

[Earl Howe (Con)]

I am very grateful to the noble Lord for those comments and will ensure that they are fed back to my noble and learned friend Lord Bellamy, and the department as a whole.

[Baroness Chakrabarti (Lab)]

I take the opportunity of this conversation to request that, when the noble Earl feeds back to the noble and learned Lord, Lord Bellamy, the point made by the noble Lord, Lord Meston, he emphasises that the concern here was not the Crown Court versus the family court and disrespect for any court’s expertise; it was for families being dragged into another process, possibly without legal aid, and going through the trauma of that procedure when they have just lost a loved one to murder by the spouse or partner. If, somehow or other, the Government could consider—the noble Earl dropped some breadcrumbs when he spoke of the duties of local authorities—a way to relieve the burden on the families who have to spend money and go through further trauma, that would be very welcome.

[Earl Howe]

I take the point about burdens placed on families at exactly the point they should not be, and I will feed that in.

Amendments 85 and 96 seek the automatic suspension of parental responsibility in cases where a parent has been convicted of sexual offences

“against the child, or a child in the family”.

I understand the motivations behind the amendments, but there are good reasons for limiting Clause 16 to instances of murder and manslaughter. Where one parent has killed the other, the children involved will, in many cases, have no one left to exercise parental responsibility apart from the perpetrator. It is absolutely right that, in those circumstances, those caring for the children are spared the burden of commencing family proceedings to restrict the offender’s parental responsibility.

Where a parent has committed another serious offence, the situation is very different. The other parent will, in most cases, be able to exercise their own parental responsibility and, if required, apply to the family court to restrict the offender’s parental responsibility. Legal aid is available for these applications.

There is a further point here. There may, and almost certainly will, be many cases in which an offender is not seeking to abuse anyone, or even to exercise their parental responsibility, and the children and family involved therefore have no interest in going through court proceedings to see their parental responsibility formally restricted. In those scenarios, it is unlikely to be in the best interests of the child and their family to be drawn into court proceedings that would inevitably be triggered by the automatic suspension, and the further distress that this will cause. Again, these amendments have a worthy aim but there is already a clear legal route for these restrictions to be put in place, and I hope that provides some reassurance.

Amendment 110 seeks to ensure that only experts regulated by the Health and Care Professions Council can undertake psychological assessments in family court cases. As the noble Baroness knows, the instruction of an expert within the framework of Section 13 is a matter for judicial discretion. There are, however, clear rules governing the use of experts in the family court. Practice direction 25B covers the role of experts in the family court, and an annexe outlines the 11 standards that experts must comply with. Where an expert’s profession is not regulated, it details the alternate obligations to ensure compliance with the appropriate professional standards.

I have already mentioned the Family Justice Council’s draft guidance on responding to allegations of alienating behaviour. The guidance notes that only experts regulated by the HCPC should give evidence in cases where alienating behaviours are alleged. Despite the measures already in place, and the upcoming guidance, it is clear that concerns exist. Officials are considering what else can be done in this area. I am mindful that we are dealing with an existing system of judicial discretion, so I am keen that any additional action does not disrupt the safeguards already in place but addresses the legitimate concerns that have been raised.

I am grateful to the noble Baroness for what she said on this topic. I hope she is reassured that we are taking seriously the issue of unregulated experts and seeking to resolve this matter through the appropriate route.

Amendment 111 seeks to remove the presumption of parental involvement in domestic abuse cases and to prohibit unsupervised contact between any person and a child where they are awaiting trial, are under police investigation, are on bail, or are going through criminal proceedings for domestic abuse, sexual violence or a child abuse-related offence. I recognise how important the issue of parental involvement is. However, the existing legislation, namely the Children Act 1989, provides sufficient safeguards to address these concerns. Section 1(6) of that Act, first, requires courts to consider whether a parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The presumption of parental involvement applies only if that test is met. The presumption, where it does apply, is also rebuttable where there is evidence that the involvement will not further a child’s welfare. The court must treat the child’s welfare as its paramount concern.

In addition, practice direction 12J clearly sets out the factors that the court should consider when deciding whether to make an order for a parent to have involvement with a child. The court must be satisfied that the physical and emotional safety of the child and the parent can be secured before, during and after any contact.

I appreciate the aims of this amendment, and the noble Baroness will be aware that the Government are currently reviewing how the courts apply the review of the presumption of parental involvement, which will be published in due course. However, as there is already a clear legislative route for the court to determine if parental involvement should be prevented to protect the child. I therefore believe the proposed amendment is unnecessary.

Next, I will address Amendment 117, which seeks to prevent the family court from ordering a victim of domestic abuse to disclose their medical records to their abuser, unless there are exceptional circumstances. The Family Procedure Rules give the court the power to control the disclosure of evidence. Rule 22 provides that the court may give directions about the type and nature of the evidence it can order, alongside outlining the nature of the evidence required to reach a decision. The court will also decide how any evidence should be placed before the court. Rule 4.1(3)(b) gives the court the power to make an order for disclosure and inspection, including the disclosure of documents, as it thinks fit.

Higher Education (Freedom of Speech) Bill

Debate between Baroness Chakrabarti and Earl Howe

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Baroness Chakrabarti (Lab)]

My Lords, I will briefly probe the amendment of the noble Lord, Lord Moylan, and probe the Minister a bit by way of that amendment. I support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens of Birmingham.

On the latter, I lament this intrusion into university autonomy, which has been going on for some time. I listened carefully to the point raised by the noble Baroness, Lady Fox: what is a university? Clearly, universities are to be places of free speech but also of free inquiry and independence from the state. They predate all the legislation that we have cited, which is really quite special. I am concerned about regulatory creep—not on employment and non-discrimination but on the content of the actual academic enterprise, if I can put it like that.

I broadly support the noble Lords in their common-sense amendments and I do not think anybody should really disagree. I do not want the Office for Students and all the rest of this architecture to be needed, but if it is going to be there then surely the duty to provide guidance should be a “must”, not a “may”, once we have entered this arena.

The amendment of the noble Lord, Lord Moylan—I am using it as a means to probe the Minister—wants the universities to

“have particular regard to the need to … (a) eliminate unlawful interference with freedom of speech within the law and academic freedom”.

Surely he should want them to seek to eliminate lawful interference with free speech too. Some of the problems that he must be concerned about are where people are not putting bricks through windows or breaching the criminal law to intimidate but are just making it not very pleasant to have debate and free speech. If he is to bring his amendment back, I say in a spirit of bipartisanship that that is a drafting problem or has not been completely thought through.

My real probe relates to something that the noble Lord, Lord Stevens of Birmingham, said last time that I found particularly revelatory. Of course a university must be a place of free speech and debate, but it must also be a place of academic excellence, or at least of academic quality. Surely that must sit alongside free speech. A university is not just a debating society or the public square; it is a place of academic improvement, inquiry and even excellence. Despite my politics, I do not shrink from the word “excellence”.

My question to the noble Lord, Lord Moylan, is again on the territory that we opened up with the Minister last time: where in this proposed statute or any other, if we are going to be prescribing duties around free speech, are the duties to protect academic standards? It was the noble Lord, Lord Stevens, who opened up this issue in my mind and I have been worried about it for the last couple of days. If free speech trumps everything, or at least academic standards, and those standards and the duty to maintain them are not prescribed in law, what happens with bad science and fake facts? What happens when a person declares that they must be protected from management, and possibly even from losing their post, because they are just writing and teaching rubbish? Our students, who are now consumers, deserve better.

[Earl Howe (Con)]

I am not sure the noble Baroness was in the Committee when I covered that very point quite near the beginning of our debate today. I tried to cover it on Monday but I expanded on it today as well.

Higher Education (Freedom of Speech) Bill

Debate between Baroness Chakrabarti and Earl Howe

Committee stage
Monday 31st October 2022 Grand Committee

[Earl Howe (Con)]

With great respect to the noble Lord, I challenge any university to point to a provision in the Bill that changes the duties and responsibilities it has at the moment to take decisions for itself about what constitutes malignant speech, unsound science or whatever it happens to be. The Government are not trying to interfere in any way with the autonomy of universities in that sense.

[Baroness Chakrabarti (Lab)]

I am really quite surprised, because I hoped that the noble Earl was going to respond to my question, which was based on the question from the noble Lord, Lord Stevens, with some magic provision in the Bill or in the parent 1986 Act—if I can put it like that—which ensures that academic standards are specifically protected and held in the balance with the vital freedom of speech. If that is not the case we really do have a problem, because we then have the potential for one of the scientists I described in my hypothetical to sue under the new tort on the basis that they are being dismissed because of their speech and beliefs. The university will say, “No, it’s because of your bad science”, but they could say, “No, it’s because of my speech and beliefs”, and then the university would face costly, lengthy litigation.

[Earl Howe (Con)]

We always have to come back to what the Bill specifies that a university should do, which is to take reasonably practicable steps. That is governed by the circumstances and facts of the case, which the university will have to weigh up: the pros and the cons, the arguments on either side. That is nothing different from what they do at the moment. In a later group, the ninth, I think, we shall come to the issue of tort and, if the noble Baroness will forgive me, I will not cover that now, but I shall cover the questions that she asked me about who exactly we are referring to in subsections (2) and (3) of proposed new Section A1.

Attorney-General’s Legal Advice

Debate between Baroness Chakrabarti and Earl Howe

Wednesday 25th September 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating that Statement and for giving his noble and learned friend a well-deserved rest after his supreme efforts down the road. Will he join me in distancing this House, at least, from some of the intemperate, ill-advised remarks made by his colleagues in the other place—for example, that Parliament has no moral right to sit; that our judiciary should now become subject to political appointment; and that the highest court in these islands has somehow perpetrated a constitutional coup?

[Earl Howe]

My Lords, in the circumstances in which we find ourselves—which the Supreme Court itself characterised as a one-off—it is likely that phrases are used in the heat of the moment that are judged inappropriate in the cool light of day. I do not believe that the noble Baroness quoted my right honourable and learned friend quite correctly when she referred to a statement to the effect that Parliament has no moral right to sit. I think what he said was:

“This Parliament … has no moral right to sit”.


That was in the context of a debate on the other place’s inability to reach a conclusion on the outcome of Brexit, not about this particular matter.

I cannot comment on any suggestion that there should be a political process to appoint judges; that is well beyond my brief and I do not believe that it is under consideration at all. Even if it were, it would require lengthy and considered debate and judgment involving political parties of all complexions. It is not under serious consideration at the moment.

In these circumstances, we need to reflect on the judgment that the Supreme Court has reached. Instant comments on it are possible, of course. However, it has major constitutional and legal implications, as the noble Baroness will no doubt accept. It behoves us all to look at what was said and at how that impacts on our legal position as parliamentarians, but also for the Executive to reflect on how they should behave in the future regarding any future Prorogation.

Torture Overseas: Ministry of Defence Policy

Debate between Baroness Chakrabarti and Earl Howe

Monday 20th May 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am incredibly grateful to the Minister for repeating that Statement. He does not need me to suggest that, in the febrile times in which we are living, it is important that all of us in this House and elsewhere respect fundamental human rights and the rule of law, which may bind us together in the times ahead.

This Urgent Question arose because of media reports that a 2018 document suggests that the MoD was giving guidance that torture might be acceptable if Ministers agreed that the potential benefits justified accepting the risk and the legal consequences that might follow. Is that reported 2018 guidance real? Have any Ministers ever agreed to sanction torture over the past year?

[Earl Howe]

My Lords, I am grateful to the noble Baroness and I align myself completely with the sentiment that she expressed at the beginning of her question. Central government consolidated guidance sets out the principles which govern the interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees. That guidance must be adhered to by officers of the UK’s security and intelligence agencies, members of the UK Armed Forces and employees of the Ministry of Defence. An internal policy document within the Ministry of Defence was prepared to, as it were, make the consolidated guidance more accessible and practical for those implementing it in the field. The MoD concedes that, as currently worded, there is an ambiguity in the internal document. I should stress that this ambiguity has not led to any problem or difficulty in the actions taken by the department, Ministers or members of the Armed Forces. It has been identified that the internal policy document could give the incorrect impression that Ministers could in all circumstances simply choose to accept legal consequences and act illegally. That is absolutely not the case. Ministers may not proceed when it would be unlawful, as opposed to when they would simply be assuming legal risk, which applies to any ministerial decision. I reassure the noble Baroness that, to my knowledge and that of my officials, Ministers have in no circumstances taken a decision which was unlawful in this context.