Victims and Prisoners Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Lord Garnier (Con)]

I am most grateful to my noble friend. I will have to check tomorrow morning the Hansard report of where I had got to in my speech; I have a suspicion I was in the middle of a sentence in which I was just about to say exactly what my noble friend said—but I am grateful to him, because he was able to say it so much more eloquently than I would have done.

We are in the position with criminal justice and sentencing that we were in the first decade of the 20th century with Dreadnought building. If the Germans have five, we must have six. If we have six, they must have 10. If they have 10, we must have 15, and so on —and guess what? You get 1914.

Here, we are dealing with adult, mature politicians who take instructions from editors and proprietors. Yet, if they bothered to ask the public—and occasionally the press do ask the public—they would find that the public are not nearly as keen on longer sentences or on IPPs as they might think. Had they been braver and bolder—as the noble and learned Lord, Lord Thomas, would have us be—perhaps we would not have arrived at where we are.

I regret that I have spoken for far too long in Committee, but over the last 25 years this issue has really annoyed me. I am so grateful to the Prison Reform Trust, of which I too am a trustee, for its assistance in trying to restrain my enthusiasm and, at times, my anger about this subject and for providing me with the information and the assistance which I hope have to some extent informed this debate. There is not a single amendment on the Order Paper this evening which does not deserve the gravest consideration of this Committee and the urgent action of this Government.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it was a real privilege to witness that exchange and I think we are getting to the heart of why we are all here and are so passionate about this. I have a couple of short clarifications, because at this point by the time I get to my amendment on re-sentencing there really will be nothing else to say; I am rewriting my speech rapidly every time everyone speaks.

When I first heard about the indefinite sentences that were associated with IPPs—when they first came out in that arms race to prove how tough we could be on law on order—I was horrified. I was delighted when the noble Lord, Lord Clarke, abolished them; I thought that was it, because I was not in Parliament and not following. I went into prisons as part of work I was doing with an educational project called Debating Matters Beyond Bars which encouraged prisoners to debate and could not believe it when I discovered that, despite the sentences being abolished, there were still IPP prisoners.

In fact, I told the prisoners in my own characteristic way that they were wrong and that IPPs had been abolished and could not still exist. So I was determined once I got in here to at least discover what on earth had gone wrong. I cannot bear it, now we are tackling the issue, that, even though the sentences have been abolished, they will still exist when we have finished dealing with this Bill. It seems abhorrent.

I wanted particularly to back up the mentoring proposals from the noble Baroness, Lady Blower. If you talk to any families of IPP prisoners, or IPP prisoners themselves, they know that they have been destroyed and damaged by this sentencing regime. They are not gung-ho about it. They do not just say, “Release us, we’ll be fine”. What they would really gain from is mentoring. It is the kind of creative solution that would help us support the re-sentencing amendments. This is the kind of support that people will need.

It was hard not to shed a tear at the very moving speech from the noble Baroness, Lady Burt, who said that many of the people whose mental health was suffering had been destroyed by IPPs. But we should also note that it could well be that their mental health is not permanently damaged by the ongoing psychological uncertainty, anxiety, torture and so on. We need a combination of the mentoring scheme and a recognition of the fact that the sentencing is, to be crude, literally driving people mad—and the sanest person would go mad. You do not necessarily need medication; you need compassionate, grown-up intervention and support. In that sense, I support all the amendments in this group and all the others, but I really think that, for want of a better phrase, we have to be the grown-ups in the room now and try and sort this out.

[Baroness Hamwee (LD)]

My Lords, I particularly support the amendment from the noble Baroness, Lady Blower, although I support all of them. I also thank the noble and learned Lord, Lord Hope of Craighead, for remembering Lord Lloyd of Berwick in this debate. I recall him very well, indefatigably picking up this baton.

Many of us were alarmed when prisoners were added to victims in this Bill, but this amendment is absolutely with the grain of the first part of the Bill. We talked about ISVAs, IDVAs, child trafficking and guardians, and I recently heard about victim navigators who work as supporters and mentors to victims of modern slavery and human trafficking. We are all accepting the notion that, in slightly different ways, the criminal justice system does not do well by its victims—as has been said, IPP prisoners are victims—and that this needs addressing with a range of support measures. It is very much the direction of travel and I hope that this notion can be pursued.

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This is the most important point, which the noble Lord, Lord Ponsonby, very fairly started with. I share his look of regret that we are dealing with this very difficult problem. The purpose of Amendment 161, as the Government understand it, is to make it easier to release the remaining cohort, but by definition this cohort is the most difficult of all to manage: they have been up before the Parole Board many times, some as many as 10 times, and many three, four, five or six times. The Parole Board has never so far been satisfied that they are safe to release, so making it easier to release those—

[Baroness Fox of Buckley (Non-Afl)]

Unlike other prisoners, they may have been up before the Parole Board many times, but this is long after their tariff has ended and the sentence originally given was handed out to them. That is quite a distinction from other prisoners. The suggestion that they are a particularly difficult group to manage because they keep going before the Parole Board slightly misses why they have become a difficult or different group. The main thing is that they would have been released if they were any other group of prisoners, yet they have to go to the Parole Board to say that they are safe and risk-free maybe five or six years after their tariff has ended. That is why people see the burden of proof being in the direction it is in. They also have to fulfil a range of courses and so on, which people are not convinced will even indicate that they are safe anyway, but we will get on to that. To the suggestion that we do not understand why anyone is raising this, it is because the set of circumstances for these prisoners is very different. That is why we are all here talking about it.

[Lord Bellamy (Con)]

My Lords, I entirely understand the point that the noble Baroness is making, which effectively encapsulates the problem that we are up against: how do we protect the safety of the public on the one hand and, on the other, deal with the outstanding problem? I think the Government’s point is that to make it easier to release those prisoners who are potentially most likely to cause harm is counterintuitive and unacceptable from the point of view of public safety.

[Baroness Fox of Buckley (Non-Afl)]

I did not suggest that they were more likely to cause harm. The argument is whether we accept that they are deemed dangerous and therefore cannot be let out through the Parole Board, because what deems them dangerous is a set of hoops that they have to go through and that do not necessarily indicate that they are dangerous. That is one of the difficulties with this. It is doublethink and double-talk.

[Lord Bellamy (Con)]

My Lords, as I have tried to say, the whole purpose of the action plan is to create a framework in which this cohort, properly managed, could progress to safe release, with sentence plans, psychological support, support from psychology services and other support towards a safe release. That is a better route than tinkering with the release test. I will not say it is exactly a legal quibble, but it is a bit of a legalism to be fiddling with the release test.

Victims and Prisoners Bill

Baroness Fox of Buckley Excerpts

Committee stage
Wednesday 24th January 2024 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my name is on the amendment of the noble Baroness, Lady Finlay, although it was not meant to be—there was some confusion between “Sally” and “Sal”—but I am glad that it has remained there. I also commend the noble Baroness for that neat handover of the chair.

The noble Baroness introduced the amendment thoroughly, but, reading the briefing from the Victims’ Commissioner, I remembered one experience of a friend. It was nothing as extreme as a homicide, but her husband died unexpectedly on a business visit to the United States. It was hugely emotionally difficult for her, as well as practically difficult: different language is experienced even in the United States, and certainly there are different procedures and cultures. One needs signposting to the right people, who can deal with the procedures as well as support. I remember her talking about the difficulty in bringing him home.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I welcome this discussion and having a sense of clarification about who a “victim” is in a Bill at least half of which is about victims. I especially support Amendments 2 and 8, but I have some questions for those who tabled the other amendments. Although having too narrow a definition can be a problem, it strikes me that we could cause real problems for victims if we had too broad a definition. I am obviously thinking about resources and overstretching support. So many people can be victims of crime if you start broadening it so much.

As hinted at by the noble Baroness, Lady Jones of Moulsecoomb, in her interesting Amendment 3, it is a tragedy for the families of perpetrators too. They can also be victims, and whole ranges of people—friends, acquaintances and other people who have genuinely suffered—could say that they are victims, but are we seriously trying to put them all in scope? I want to know how we can ensure that, even if we are acting in generosity to try to broaden the definition, we do not water down a focus on the actual victims of crime that the Bill is designed to help. In other words: where do we draw the line?

In that context, I am slightly concerned about a broadening of what now constitute victims of crime. In Amendment 4, as the noble Lord, Lord Russell of Liverpool, explained, it then becomes anti-social behaviour. He gave a moving account of what it feels like to be a victim of anti-social behaviour, but we could probably all stand up and give moving accounts of being victims of something—bullying and all sorts of other behaviour that makes people suffer. I am slightly concerned that we might end up relativising the experience of victims of crime in an attempt at broadening this too much. Whether we like it or not, culturally, we live in a society in which victimhood is valorised. I do not want the Bill to contribute to that relativising experience, because there is a danger that, if we make it too broad, we could trivialise the real victims of crime. But then you could rightly ask me: who do I mean by “real victims”? I do not want it to go so far so that we lose all sense of its meaning.

[Baroness Newlove (Con)]

My Lords, I am delighted to take part in this Committee, both as Helen Newlove and as Victims’ Commissioner. I thank all the victims I have spoken to over the years. We are bringing their voices to this Committee, right through to the end, because we cannot be grateful enough for their bravery and their having come forward.

I have a list, but I will try to get through it. Amendment 2 is welcome and rightly looks to put bereaved victims of homicide abroad into the code. As has been said, to lose a loved one to murder is horrific and devastating—I can personally say that—no matter where the crime takes place. However, the families I have met whose loved ones have been murdered abroad have to get through significant additional financial, legal and logistical burdens in a different language and a different system—it is not as simple as we put on this script for Hansard today, believe you me.

To have to repatriate the body of a loved one is not simple, because families have to look to the coroner so that they do not harm evidence. That has to be co-ordinated with a foreign criminal justice system, where some families have sat in police stations with photographs of their loved ones, waiting for someone to pick up on that in their language. That image has never left me to this day. To feel alien in a country, knowing how you have lost a loved one, must be horrendous. It is bad enough in the system in this country, but to have that in a foreign country is very demeaning to a hurt family.

As has been said, there are only 60 to 80 such families a year, but that is enough. It is important that this small group of families has the same entitlements as those of bereaved families in this country. There really needs to be change. They are not entitled to criminal injuries compensation unless the death occurred as a result of a terror attack, as we have heard. This is particularly unjust when you bear in mind that they will have the same additional financial burdens as a victim of terrorism abroad. We all live on mobile phones; to have to pay a mobile phone bill just to get family help, when you do not have the finances, must be horrendous. We need to look at how we can balance this.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support all the amendments in this group. I am interested in verbal harm because it is true that, as politicians, we get a lot of that. I have had verbal abuse from that Front Bench, in fact, but I am old enough that it has not affected my behaviour.

Amendments 5 and 6 are quite crucial here, as is Amendment 10 on child criminal exploitation. On top of all the important points made by noble Lords here about child victims, I want to ask the Minister about the Government’s role in re-victimising children and young people by deploying them as covert human intelligence sources or child spies. I have raised this issue a few times over the past few years. It is still a practice that absolutely horrifies me—that the Government would actually encourage the further criminalisation of children. In recent years, the Government have actually expanded the use of child spies, including authorising them to commit criminal offences. I do not expect the Minister to answer this this evening, but I would like a full answer, because this is an issue that fills me with horror.

The Government’s actions obviously meet the definition of child criminal exploitation in Amendment 10, as these children are being

“encouraged, expected or required to take part”

in criminal offences by the police. Can the Minister therefore outline what victim support and other help is provided to these child spies when they are being sent back into dangerous criminal situations? Will they be eligible as victims under the victims’ code—I assume they will—and can the Minister give up-to-date figures on how many child spies are currently being used by police forces? I have been consistently told that it is a very small number. In my view, any number is wrong, but if I could have that information, I would be very grateful.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was quite surprised to see the amendments, and also the way they have been motivated—by the need to get children in the Bill, as though there were a lack of sympathy with children as victims, particularly of sexual abuse. That is not something that I am aware of in society, which seems to me to be more than preoccupied with that issue, and rightly so.

If anything, as the right reverend Prelate the Bishop of Manchester made clear, it depends which children you are talking about, because one of the shocking aspects of the Rochdale grooming scandal was that a particular group of children were seen to be the wrong kind of children—in the words of the perpetrators, “white trash”. If you read the many reports on this, as I have done, even the officialdom—the police, local authorities, social workers and all sorts of things—saw these children as perpetrators who could be ignored. In general, society is horrified, it seems to me, at child abuse, but it depends which children. I did not know that we needed to get the idea of children as victims on the face of this kind of Bill in order to be sympathetic to children as victims, so I am a bit confused about the necessity of that. However, I am open to being convinced.

As it happens, I completely agree with the horror of the noble Baroness, Lady Jones of Moulsecoomb, at child spies, and I share that point of view as well. But she does raise a problem that I have with Amendment 10, inasmuch as I think it is unclear what the definition of “child criminal exploitation” would be. Where it says that

“a child under the age of 18 is encouraged, expected or required to take part in any activity that constitutes a criminal offence”,

first, there would be an argument about those child spies. Other people would presumably say that that was not what was happening there.

But there is a danger, particularly when we use that wording: “encouraged, expected or required” is very loose in terms of problems we might well have with agency of young people. We have already heard about anti-social behaviour; often that is committed by under-18s. Knife crime is often committed by under-18s. There is a danger that, in our attempt at fighting genuine exploitation of children to force them into criminal activity, we end up in a situation whereby young people, who I am afraid can on occasion be responsible for crimes, are able to say that they did not do it because they were encouraged or put under pressure and so on. I am just worried about the wording there.

Finally in this group—and this is not something I like doing, because I have enormous respect for the noble Lord, Lord Hunt—I absolutely disagree with his Amendment 9 on verbal harm. One thing that is quite interesting is this idea that we have to make young people—or everybody—aware of the dangers of verbal harm. The one group of people who are very aware of the dangers of verbal harm are young people and children because they are reared in a society that tells them that words are harmful. They are so embroiled in that notion that, as we know, they will say that they are victims because of words that have been said to them. We see this played out in schools, sixth forms and universities all the time, to the detriment of free speech.

People might think that is glib, but I am constantly involved in arguing the point with young people who say that words are as harmful as fists, knives and anything else and that they should not be exposed to individuals saying certain words because they are just as harmful as criminal activity. I do not want the Bill to give even more succour to this idea that words, which are often opinions that people do not like, are harmful. Even though words can make you feel uncomfortable, we must distinguish between words and actions, in my opinion, and not encourage young people to always think that they are victims of some crime if they hear words that they find unpleasant, even though I understand that some words are unpleasant to be on the receiving end of.

[Baroness Benjamin (LD)]

My Lords, I support Amendments 6 and 10 in the name of the noble Lord, Lord Ponsonby. I was pleased to hear that verbal abuse is being highlighted and I commend the noble Lord, Lord Hunt, for that.

Children who are criminally exploited suffer unimaginable abuse and harm, which have long-lasting impacts and can cause physical and mental harm and trauma which can impact their development. As we know, childhood lasts a lifetime so this will go on to affect society in the long term, directly and indirectly.

The Covid-19 pandemic increased the risk of children being exploited and this has been made even worse by the cost of living crisis. Despite this, all too often children who are victims of exploitation are blamed and criminalised for their own abuse. Black and minority ethnic children and children in care are more likely to be criminalised than other children, which can be a double jeopardy for them.

There is no statutory definition of child criminal exploitation, which means that those working with children lack a shared understanding and can miss key intervention points and fail to identify victims. For child victims, this means that they are falling through the cracks of statutory support and perpetrators of this vile abuse are going unpunished.

At Second Reading, the Minister set out that a definition of child criminal exploitation already exists in statutory guidance, which is a good step in recognising the issue. However, confusion remains among those on the front line, and it is clear that a statutory definition would be welcomed by them. The Government need to use the Bill to give child criminal exploitation a statutory definition in its own right.

In 2021, Barnardo’s—I declare an interest as its vice-president—made a freedom of information request to police forces across the UK. Some 30 police forces responded, but only one force was able to provide any data about child criminal exploitation. Interestingly, many forces asked Barnardo’s about how child criminal exploitation is defined, which shows just how misunderstood it is by those working in this area. A police officer who spoke to the Children’s Society said:

“What is applying in Newcastle is totally different to Surrey, and current definitions are too open to interpretation and this breeds an inconsistent approach”.


Other police officers working on the front line have said that they would definitely value a statutory definition of child criminal exploitation, and that the definitions that already exist in statutory guidance are weaker and can be harder to prove.

Prisons: Education

Baroness Fox of Buckley Excerpts

Thursday 23rd March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the answer is yes. Prison governors are now specifically required to have regard to developing employment opportunities for those in prison, attendance rates at courses and other matters. I pay tribute to Clink, which is a very well-known and respected organisation. Similar programmes are being offered by other employers, and this is all, I respectfully suggest, good progress.

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

[Baroness Chakrabarti (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, it is the turn of the noble Baroness, Lady Fox.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, in my experience with broader education projects such as Debating Matters Beyond Bars, I have found that private sector prisons can be more flexible and less bureaucratic than some state-run prisons. Does the Minister agree that we should focus less on who provides prison education and that education should be given far more priority? Does he also agree that prison education should not be limited to literacy, as it often is, but should be far more imaginative?

[Lord Bellamy (Con)]

My Lords, the Government regard prison education with high priority and are working to improve its imaginative and innovative aspects all the time.

Prison Capacity

Baroness Fox of Buckley Excerpts

Tuesday 6th December 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, as I have just said, that is an area for the courts. Judges, of course, have fairly extensive training in sentencing and I think I can fairly say that no judge would send anyone to prison if a community or other sentence was a realistic option.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I concede that many members of the public want tougher sentences for serious crimes, but can the Minister comment on a key point made at the North Wales Women’s Centre’s 21st anniversary in Rhyl that I was at the other day? They made the point that far too many prisoners are locked up for short, two-week sentences for non-violent crimes, rather than the Government investing in alternatives to custody. Secondly, if capacity is at such a crisis point, will the Government use the opportunity to finally deal with IPP sentences? They were so awful they were abolished in 2012, but still thousands on IPP are languishing in prisons indefinitely. It is time to end them and free up the space.

[Lord Bellamy (Con)]

My Lords, in relation to the comment from Rhyl in north Wales, I entirely take the point that is being made. Unfortunately, the courts sometimes feel that a short sentence is the only available, or the best, option in those circumstances—and that, as I have already said, is a matter for the courts. As far as IPP prisoners are concerned, the Government will respond to the recent report from the Justice Committee of the other place, I hope next week.

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I came into the debate late on the day we voted. I was really quite shocked to find what was being debated, and I listened very carefully to the contributions. Because I had not heard the Minister speak from the Dispatch Box, I did not take part in the debate; I felt that I would be criticised for coming in without having heard the full discussion. But I have practised in the criminal courts for 50 years—I was called to the Bar 50 years ago—so I can tell noble Lords that I was very alarmed at the content, and I echo what has just been said by one of our distinguished judges.

I really was concerned at the absence of discretion here. You could have such a range with this kind of manslaughter charge, and it is a shocking idea that a mandatory life sentence might be passed on someone very youthful in circumstances such as were described—you can never completely cover every possibility—by the noble and learned Lord, Lord Falconer, where the consequence of a tragedy could also lead to the double tragedy of somebody spending their life in prison because the sentence is mandatory. So I really do think we have to think twice here. Of course, we have to protect our public servants, but it is vital that we keep true to the idea that different cases require different responses, and that there have to be some exceptions.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, relatively new as I am to this House, I try to follow procedure and often fail to do so, and I am rightly reprimanded by fellow Peers when that happens and when mistakes are made. I am also very conscious of the democratic deficit of this House as unelected legislators. But, in relation to this issue, I was shocked by what I saw as an abuse of procedure by the introduction of this very important Harper’s law at such a late stage. I felt that that was bending the stick, to say the least, in terms of taking this House and its procedures seriously.

So, from my point of view, the noble and learned Lord, Lord Falconer, has explained very well that this is a modest amendment that does not try to overturn the spirit of what was passed earlier on but is trying to deal with what I think are unintended consequences that the Government themselves do not want to see—that is not their intention. But Harper’s law is not a minor matter. Since that bit of a mess by which it was passed last time, I have had some sleepless nights imagining that I might in any way be responsible for the unintended consequences that I really do not think the Minister wants to happen, but which could happen unless the Bill is unamended—which is why I support this amendment in these unusual circumstances.

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Bach (Lab)]

My Lords, may I ask the Minister a question? A few years ago, when I was a police and crime commissioner, it came across our desk a lot that it was government policy to have a royal commission on the criminal justice system. What has happened to that proposal? Is it still there? Is it still the Government’s hope to do that? If it was, I would be very much in support of it. If it is not, I very much support the amendment that the noble Lord, Lord Marks, has moved.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have thought long and hard about this amendment, and I am still torn about it. The other evening, in that rather fractious discussion about trans prisoners in women’s prisons, the Minister rather took me up on my quotes from Twitter, as though I was using Twitter as hardcore evidence, which I was not. He made a valuable point, because he said that putting management and protection first was what was done, rather than following public opinion or what was on Twitter or anywhere else. I have some regard for that. In fact, I had made the same point to the Minister in relation to Harper’s law at the beginning of this Report stage, when I said that sentencing should not be a consequence of an outraged public reaction to something, a campaign or what have you. I would rather feel that sentencing was decided in the cold light of day, much more rationally, and so on. I worry about knee-jerk legislation.

I suppose I want to ask a couple of questions, of both the Minister and the mover of the amendment. Sentencing often seems subject to caricature on both sides. People are caricatured as bleeding-heart liberals who want everybody to be let out of prison, and anyone who is concerned about increasing sentencing is caricatured as “lock them up and throw away the key”. It seems to me that there needs to be some relationship between sentencing and the public and their views about it, but we do not want it to be arbitrary and reactive.

So, in that sense, I was very positive about the notion of a royal commission that could look at this in the round, take it away from the political world in some ways and allow, if you want, a more rational and considered public debate, as well as a commission looking at it in detail. That seemed to me to be a way forward.

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[Noble Lords]

Oh!

[Baroness Fox of Buckley (Non-Afl)]

I know that some may be shocked. I actually worry a lot about prison reform, authoritarian tendencies and prison being used as an answer to all problems. There are a lot of draconian aspects of the Bill—the threat of jail for protesters, for example, which we are about to discuss—and all these things concern me.

However, I would not want a royal commission to be there to endorse what I or the movers of the amendment want. Therefore, a long list of things that are wrong with long sentences does not seem to be the basis of a royal commission—I would want it to look at sentencing without prejudice and bearing in mind public concerns about safety. It is absolutely the case that, despite my liberal qualms, there are times when people should probably be locked up for longer—but the prisons should then be reformed to make them more humane while you are in them for longer.

[Lord Cormack (Con)]

Well, my Lords, I had never really thought of the noble Baroness as a bleeding-heart liberal, but we all come in different guises, depending upon the subject. I find myself very taken by many of the points made by the noble Lord, Lord Marks of Henley-on-Thames, and by many others who have long been learned in the law.

I spoke to my noble friend the Minister after what the noble Baroness referred to as the slightly fractious debate on Monday. Funnily enough, I said to him that I thought that a royal commission would be a good way—better than an amendment to a Bill—to look at the issue that we were discussing: women in prison. Of course, this provision in the amendment moved by the noble Lord, Lord Marks of Henley-on-Thames, could be incorporated.

On balance, I would favour a royal commission on the criminal justice system. I do not suppose that the noble Lord would be particularly opposed to that, rather than the specific amendment that he is moving today. But we need to look at these things because—coming back to a point made on Monday and today—we are failing in our criminal justice system because there is far too much recidivism and far too many lives are not amended and rehabilitated but further broken and eroded by spending time in prison. We have not got the balance right.

I have always been opposed to the simplistic view sometimes expressed, not by bleeding-heart liberals like the noble Baroness but by some on my own side: “Lock them up and keep them in.” That is no way to tackle things. So, although I would understand if, in responding to this debate, my noble friend the Minister said that he could not accept this amendment, I nevertheless strongly appeal to him on the Floor of the House, as I have privately, to consider very carefully the merits of a royal commission on the criminal justice system.

It can do no harm. We all remember Harold Wilson on royal commissions—they sit for years and take minutes—but that is not necessarily what royal commissions do. They can be given a timeframe or asked to report back within a certain period. If, by chance, my noble friend is not able to give the positive response I hope he might, we have many in your Lordships’ House who are indeed learned in the law, and this might be an ideal subject for one of the special committees that we set up each year in your Lordships’ House. It would have perhaps the most distinguished membership of any such committee ever established and I am sure it could make a powerful report, but I would still favour the royal commission approach. I hope that when my noble friend comes to respond, he will be able to give us some encouragement.

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[Earl Attlee (Con)]

My Lords, I have worked with the noble Lord, Lord Bach, for many years in this House —sadly, on opposite sides of it—but I have never heard him make a stronger argument for anything. The only reason why I cannot say that I will support him is because I have not written a little note to my noble friend the Chief Whip.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I cannot say that I know many teenagers who, growing up, aspire to be police crime and commissioners. However, I was convinced by the arguments made in Committee and I wanted to just make a couple of additional small points. For me it is not just about unfairness; there is a principle here. If you work with teenagers and one of them has made a mistake and has been fined or has broken the law in some way, you say to them, “Now we want you to rehabilitate and become a fine upstanding citizen”, and, “The world is your oyster and you can do anything.” I cannot imagine anything that is more proof of being fine and upstanding than growing up and then saying, “I want to be a police and crime commissioner.” I do not even know whether I agree with the idea of police and crime commissioners, but that is not my point.

The other thing, on a kind of principle, is that increasingly I would like public servants and people taking on roles such as police and crime commissioners to have some real-life experience—and that might involve youthful indiscretions.

I completely support the amendment. There are principles here that could easily be upheld by the Government simply accepting it; it makes perfect sense. I think even the public would cheer.

[Lord Sentamu (CB)]

My Lords, since I have been gratuitously referred to, I ought to say some words. Archbishop Robert Runcie said, “A saint is a person whose life has never been fully examined.” All our lives have never been fully examined, but I confirm that I never committed any crime at the age of 15 or 16, and have not done even now. Even if I committed one, I am already excluded from becoming an archbishop again because I am now 72. Age would discriminate against me and push me out.

What I do not get is why being a police commissioner is the only calling where there is discrimination if something was done at the age of 16. I would have thought that, 40 years on, the person has done their time. Yes, there is a record but it does not have to be the only thing over which you exclude them, because they have come on in age. In wanting to remove this for police commissioners, we are not sending out a message that it does not matter whether you commit a crime at the age of 16. We are saying: why is there this hindrance to this profession? Because one day I may become a saint and my life will never be fully examined, I want to vote for this amendment. I hope that the Minister will just accept it and it will be put into statute without more debates, because this just does not make sense. But I speak like a fool.

--- Later in debate ---

It is a sensible amendment; it is a sensible way forward. There is no point of difference between the Government and us, except on the requirement for the legislation to allow immediate implementation rather than a delay caused by a consultation period. I beg to move.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, as has already been noted, I raised concerns about an earlier version of this amendment in Committee, when I argued that, ultimately, it felt like it was legitimising a climate of demonising protests based on a subjective assessment of whether those protests were politically approved of or not.

Specifically, this new amendment relates to attitudes to Covid vaccines, which I want to look at. To put it beyond any doubt, I support the use of vaccines, although not vaccine passports or mandated vaccines—I say that too—but I do not believe that those who are opposed to vaccines, whether they are tennis players, NHS anaesthetists, fearful pregnant women or even conspiratorial cranks, should be criminalised or discriminated against because of their views, and I am concerned that aspects of that would happen from this amendment.

This new amendment would expand the use of the proposed fast-track public space protection orders beyond activities outside schools to venues providing NHS vaccination services to the public. We all have in mind those scenes—they have already been described—of vaccination centres being invaded, with equipment trashed and abuse shouted and so on. As it happens, like everyone else, I condemn that activity. However, if, as the amendment notes, such activities involve harassment, intimidation or impeding members of the public accessing a service that they want to access or impeding the staff or volunteers providing that service, surely we have laws on the statute book to deal with this, and those laws should be applied.

My question really is: why do we need to use PSPOs, and why are they proposed for non-specified activities outside schools, which could obviously be used, for example, to prohibit anything from leafleting to collecting names on a petition for any cause? In relation to the schools part of the amendment, anti-vaccine issues are not mentioned. I confess that I have long been an opponent of PSPOs. Sadly, I feel, they are used as arbitrary powers, issued by councils acting as though they run fiefdoms. I have written about the issue regularly in council publications such as the Municipal Journal since 2014 when they were brought in.

PSPOs do not ban any particular activities, which is why they are so broadly interpreted, often depending on the pet hates of local councils. Their name is something of a misnomer because, rather than protecting the public, they are used mainly to eject the public from public space, effectively privatising public space. Indeed, they are regularly used as dispersal orders for, for example, groups of individuals “hanging around”, often young people, or for political vigils or leafleters. Often, they are dispersed by authorised private security guards with the power to issue on-the-spot fines—one has to consider who would police the PSPOs in this amendment.

No wonder the civil liberties group the Manifesto Club has warned that PSPOs fundamentally undermine rights of free association and free expression in the public square. Indeed, in 2017, the Home Office recognised the overuse and overreach of PSPO powers and produced amended statutory guidance—but to no discernible effect as they are now being issued at an increased, and rising, rate.

The fast-track PSPOs proposed in this amendment have conditions, but those conditions simply use the phraseology usually associated with the orders in terms of activities that various individuals consider have

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

or whoever is being discussed. The phrase “detrimental effect on the quality of life” has been critiqued by many opponents of PSPOs as very vague and elastic. It has led councils in recent years to use PSPOs to restrict everything from cycling, charity collecting, rough sleeping, walking dogs without leads, begging and busking. A couple of dozen councils have used that phrase and PSPOs to ban—two of my favourites—swearing and loitering. I do not know whether any noble Lords have ever dropped their kids off at the school gates, but loitering in groups—often involving a little swearing, I confess—is almost a compulsory activity for parents.

More seriously, as the Manifesto Club has regularly noted, the test of “detrimental effect” is an unprecedentedly low legal test for criminal intervention, but there is also no requirement to show any substantial evidence of such detrimental effect. There is no proper democratic oversight locally, with no requirement for PSPOs to be passed through internal scrutiny procedures within a council.

Normally there is a requirement for consultation, but, as has been explained, this amendment would dispense with that. The consultations are usually fairly procedural, and many PSPOs have been passed with as few as 10 respondents. Anyway, in this instance we would remove even the formal need for consultation. Therefore, the PSPO would be issued. It would be signed off, as we have been told, by three people—the police chief officer, the school leadership and the local authority leader—and the public would be consulted only after the order is issued, which is laughable and contemptuous.

Also, there is no workable system for appealing PSPOs locally beyond an appeal to the High Court. Finally, to note the wording of the amendment, these fast-track PSPOs can be issued for activities not just carried on but

“likely to be carried on”,

and that not just have had a detrimental effect but are “likely to have” a detrimental effect. These are weasel words, wholly open to speculation and a pre-crime-like interpretation.

I hope those noble Lords who, on Monday, will oppose the swathe of legislative proposals that threaten to close down protests and chill the rights of free assembly will also oppose this amendment. I find the views of hardcore anti-vax protesters distasteful, nihilistic and absolutely things I would argue against. I actually feel the same about Extinction Rebellion, but that misses the point. We need to be very careful about picking and choosing which protesters we support. If there is a problem of obstruction or any kind of unlawful activity outside schools or vaccine centres it should be dealt with, but I fear this amendment would give succour to the Government ahead of Monday’s battles. I will therefore oppose it.

[Lord Walney (CB)]

My Lords, surprisingly, my remarks will overlap substantially with the noble Baroness’s speech, although they come from a somewhat different perspective.

I thought that the opening speech from the noble Lord, Lord Coaker, was convincing and I look forward to hearing the Minister’s reply before I make my mind up on how to vote. But it left me wondering whether this approach ought not to be actively considered for extension around not simply schools and vaccination centres but seats of democracy such as Parliament and potentially local councils, where we have seen pretty disgraceful activities that are clearly designed to intimidate elected members—anti-vaccine activists have pursued a highly aggressive strategy. It is notable that that is off the table in the amendment.

There is no reason why this issue should necessarily be covered, but—this is my point of overlap with the noble Baroness—I raise it because I will be listening with interest to what Members of the Opposition and from all sides of the House say about the very controversial measures that are due to come on Monday. I share the concern that we have a real tendency as a House and a legislature to find ourselves in instinctive agreement with measures designed to avoid intimidation from groups whose causes we do not agree with; yet we find ourselves, often subconsciously, contemplating what can be equally intimidatory methods of protest deployed in the name of a cause whose broader case we do agree with. It is really important that we guard against doing that.

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[Lord Coaker (Lab)]

My Lords, I thank the Minister for her reply and for the courteous way in which she always tries to engage with the issues. I also thank all noble Lords who joined the debate. The noble Baroness, Lady Fox, can call me naive, but I was, though the amendment and the changed amendment, trying to address some of the concerns that she raised, particularly in trying to make it clear that it was not a blanket ban but was dealing with a very specific problem that has resulted in and around some schools—

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was reading my speech, but I acknowledge that the noble Lord said that in his opening. It is perhaps an unintended consequence, but can he see from the Minister’s response that it fuels arguments that they will be using on Monday? That was always my concern.

[Lord Coaker (Lab)]

That is a different point. I accept some of that. It was not what the Minister was saying, but I take the point. The noble Baroness raises legitimate points. I do not agree with her on many of them, which is fine. It is not a problem. It is the whole point of debate and discussion. The fundamental point is that the amendment seeks to do what the public space protection orders do not do. They are not a blanket ban on protests. They do not allow people to pick and choose in the way that some people, including the Minister, have highlighted.

I agree with the noble Lord, Lord Paddick, and do not believe that school leaders, local authority leaders, NHS vaccine providers and the chiefs of police for an area would pick and choose protests. I do not believe it. The school leaders in our country know and understand what causes alarm and distress to parents and pupils in their area and they would not abuse that power—nor, in 99.9% of cases, would local chiefs of police, NHS vaccine providers or local authority leaders of whatever political party. They are upstanding public servants who understand the responsibility that comes with their post and would not seek to use one of these orders inappropriately, just because there happened to be a protest outside a school.

I was a deputy head teacher. There were numerous protests at different times, about different things. We did not seek to ban or stop them. One occasion was when I reintroduced school uniform. There were people saying how ridiculous it was that Coaker was reintroducing school uniform, but I did not stop them doing that; nor do I believe that school leaders, police chiefs or others in an area would do that.

The amendment seeks, for particular circumstances that we have all seen on our televisions and read about in our newspapers, to give an immediate power for people to act reasonably, not to prevent any protests but to deal with a specific situation where alarm or distress is being caused. Whatever the current law says, it is not dealing with people in that situation. All we seek, in a reasonable way, is to give those people the power, in situations where there is consensus and agreement, to take immediate action to protect those going for a vaccine, or children, staff or parents going to school. It is perfectly reasonable to ask the law to provide that and, because of that, I ask to test the opinion of the House on my amendment.

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I cannot speak as eloquently as the speakers we have just heard, but I want to say that this feels so much like law made by press release, and law made to virtue-signal, that I feel incredibly uncomfortable about it.

We want to say to emergency workers that we will protect them if they are at risk, but we know that the emergency worker in this instance, PC Harper, was not the target of the crime; it was not intentional to kill an emergency worker. So I do not see even how this operates as a deterrent, because it is not aimed at people who have put those emergency workers at risk, even though those workers have accidentally been killed in the pursuit of a criminal act that is, I accept, dangerous.

There is an exception, which is that the trial judge can make an alternative sentence in “exceptional circumstances”. But, as has been pointed out, the trial judge can already make an alternative sentence—a full life sentence in some circumstances—so why emphasise it, unless it is a political policy statement? It is not a matter of law; it is a question of saying, “We will be hard”, and it will inevitably lead to great injustice. The fact that 16 and 17 year-olds have been included means that very young people could now have mandatory life sentences for manslaughter, with no discretion, and no discretion encouraged. It is so wrong and brought in for all the wrong reasons.

[Lord Beith (LD)]

My Lords, I share many of the reservations expressed already and the analysis given on both the provision and the circumstances which have led to it. I ask the Minister, in his response to the debate, to deal with one of the points raised by the noble Viscount, which is the discretion that might be available to the judge in deciding what tariff accompanies the sentence, as opposed to the provisions of proposed new subsection (2), which give slightly more power—I refrain from defining it as a wider power—in exceptional circumstances to the judge to impose a different sentence altogether.

One thing the Minister did not cover in his helpful introduction was the extent to which the tariff provisions interact with this. I would be grateful if he could explain that, in case he can give us any reassurance about what seems to be the danger of making general law out of a particular case.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, the joys of the IPP debate are ahead of us. That raises very different points. The IPP sentence has different characteristics and the problems that it has given rise to are entirely different. I listened very carefully to the debate in Committee on IPPs, when a number of noble and noble and learned Lords expressed disquiet and tabled various amendments. They will know that I have had conversations with them about it. So I am entirely alive to the IPP issue, but that is completely separate from this issue. We consider that this measure is an appropriate response to this form of offending.

[Baroness Fox of Buckley (Non-Afl)]

The Minister listened very carefully to the debate in Committee on IPP. Some of us have read that and thought about it a lot since then. The problem is that noble Lords have not had the opportunity to listen very carefully to the debate on this particular amendment: that is the problem, in a way. It is not a straightforward amendment. I learned of it by hearing about it via the media and thought it could not possibly be being brought forward in relation to this Bill; I actually explained to people that they did not understand the way in which legislation was made, and that that was just something that the media said. Then, I realised that it was happening.

The Minister was very good and answered some of my queries and made sure that I did not fight any straw men when I went to him with particular arguments. He was very considerate in answering them. However, I do not think that the House has had the chance to consider this amendment. It is not without parallel to the IPP, inasmuch as it is a controversial sentencing change that has very big implications. We know that, because in the press release and the media reports, it was said that this would change everything. That is how it was announced: it was proclaimed as something that would change everything. Therefore, if it is going to change everything, people in this House should have a chance to debate it more thoroughly than now, so it is reasonable to ask if it could be brought forward later on in the Bill in order for some consideration to be given.

[Lord Wolfson of Tredegar (Con)]

I do not know which of the no-doubt multifarious press releases the noble Baroness read, but it was clear in the ones that I saw that the matter was going to be brought back here. This amendment was, I understand, tabled on 1 December, so the issue has been live. I am very happy to take any further interventions. That was probably not a good idea.

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, the noble Baroness’s speech ranged very broadly indeed. We are in fact debating a complex penal issue where we have a policy that addresses the matter very sensibly, as the noble Baroness, Lady Brinton, explained.

I will add just one point to this debate. It is not difficult to see the danger to people who were registered as male at birth but who are now registered under the Act as female if they were required to be placed in a male prison, as this amendment would require, irrespective of the particular circumstances of their case, as long as they are a sexual or violent offender. It should not need to be emphasised, but I will emphasise it because it is the fact, that many of these people have had hormone treatment, and some of them have had reconstructive surgery that has given them primary and sometimes secondary sexual characteristics of a physical nature. What do the proposers of the amendment think will happen to such people if the Home Office is obliged to place them in a male prison?

Of course we would all agree that, if there is an offender in custody for a suspected violent or sexual offence who is in possession of a gender recognition certificate and poses a risk to others in custody, then specific steps should be taken to isolate and deal with them. But that does not justify or require ignoring a gender recognition certificate in the way the amendment proposes.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it has to be said that when I talk to members of the general public and tell them that it is MoJ policy to allow prisoners of a male sex to be housed according to their self-declared gender identity in a women’s prison, irrespective of whether they have taken any legal or medical steps to acquire their gender, that they do not need to have gone through any physical transformation and still retain male genitalia, which we have heard lots about already in this debate, and that they do not even need to have obtained a gender recognition certificate—they need just to declare that they are women and demand that they are moved to the women’s estate, and it is seriously considered—they are aghast. It falls under the category of, “Has the world gone mad?”

That common-sense response might not feel appropriate when discussing legislation, but in this instance it may help us to look at this issue in practical, real-life terms, not just in abstractions. That is why I welcome the amendment very strongly. Although it does not resolve all my concerns, I welcome its modest, narrow aim of removing the most egregious aspect of this situation: allowing male prisoners who identify as trans but have convictions of violence or sexual offences against women to live with women prisoners. There really is no point in the Government issuing strategies and grand words about violence against girls and women if the same Government have no qualms about letting rapists share the same confined living quarters as vulnerable women in prison who, let us be frank, cannot leave or escape because they are locked up by the state. This amendment’s focus is on convicted sex offenders and it is urgent that the Government take notice.

It is important to note that when gender-critical commentators and academics raise qualms about the general policy of housing transgender prisoners in the women’s estate, they are often dubbed transphobic and accused of holding a prejudiced view of all trans women as sexual predators, but this is a malign caricature. At this point I give a shout-out of solidarity to Professor Jo Phoenix, an esteemed and conscientious criminologist who has been harassed and traduced for raising such legitimate concerns.

Wherever one stands on the general issue, this amendment is specific and cannot be accused of implying that all natal men, however they identify, are a sexual threat to women, because that would not be true. We are talking only about convicted sex offenders and those guilty of violence. I still hope this probing amendment might encourage the Government to look more closely at a range of issues in this area. I particularly want the Government to consider whether the Ministry of Justice’s involvement over a period of time with the controversial lobbying group Stonewall, which has already been referred to by the noble Baroness, Lady Meyer, as with so many public bodies, may—just may—have led to the skewing of policies in a particular direction.

For example, I know how keen this Government are on data and statistics, but as Kate Coleman, the founder of Keep Prisons Single Sex, has noted—this just seems incredible to me—the MoJ admits that it does not know how many prisoners identify as trans because, with a gender recognition certificate, they are counted by their new legal gender. I am not sure how the noble Baroness, Lady Brinton, can be so sure of the statistics she quotes, because the tools designed to assess any threat posed by male prisoners who identify as trans women cannot be picked up accurately. If someone with a GRC attacks a female prisoner, it will be recorded as an assault by a woman on another woman.

I also want to query who is listened to in this discussion on what is obviously a clash of rights. In the course of the recent High Court ruling we have heard about, Lord Justice Holroyde outlined the need to balance

“the subjective concerns of women prisoners”

with

“the rights of transgender women in the prison system.”

This made it sound as though the women, the biological women, were all being overly subjective, and the transgender women had rights. Describing one side as subjective and the other with rights misses a crucial point, because that transgender woman has an identity that is not an objective fact but a subjective desire and then a declaration. Why are women prisoners’ subjective but rational concerns afforded less weight here?

When the High Court acknowledged that women prisoners may well be worried and “scared” about sharing prison accommodation with male-bodied prisoners, the court said that that fear was not enough to outweigh the desire of some male prisoners to be housed with women. I wonder: when did the prison estate, or indeed the law, allow its policies to be dictated by prisoners’ desires? I have worked with prisoners over a number of years, particularly with Debating Matters Beyond Bars. Many of the prisoners I have worked with have declared that they desire decent prison education. They desire retraining and better conditions. The prison authorities certainly did not accommodate their desires, so why are these desires accommodated when it comes to the trans issue?

Finally, I am keen that the Government look carefully, and use this probing amendment to do so, at how staff in prisons understand the issue of sex and gender in the context of training. The MoJ policy entitled The Care and Management of Individuals who are Transgender advises staff to complete an “eLearning module” on transgender identity. One of the training courses is named intersecting identities. I have looked at these, and it all rather terrifies me. It is one-sided, jargon-ridden and ideological. I hope this amendment might point the Government to raise and review the whole issue. For now, at least, a very modest amendment should be taken seriously if they really mean they care about protecting women from violent men.

[Lord Cormack (Con)]

My Lords, I just want to intervene briefly. I support this amendment. To me, it is morally wrong for a physical man to be in a woman’s prison. It is as simple as that. If he has identified himself as a woman, and deserves to be in prison, there should be special facilities that do not bring people of that sort into close proximity with women or—if they are in danger—with men.

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[Baroness Fox of Buckley (Non-Afl)]

I want to respond to that because I think another point that follows from what the noble Lord, Lord Hunt, said is that the other argument that comes up all the time is that if you raise these issues you want a culture war, which I think the noble Baroness, Lady Chakrabarti, was implying.

On terminology, if we are all going to get offended, I do not particularly find descriptions of people as “cis” very helpful either, so when it comes to language issues, the point is that there are tensions that exist outside this place. We know that and it is disingenuous to pretend that there are not.

The noble Baroness rightly pointed out that this is a question of administrative duties of care. This amendment has been very carefully worded in a very narrow way about a very specific issue. What is the objection to that? This is precisely a responsible administrative duty of care, regardless of any hyperbole that people do not like other people using even when they use it.

[Baroness Chakrabarti (Lab)]

I thank the noble Baroness for that intervention. If I offended her in any way by my remarks—

[Baroness Fox of Buckley (Non-Afl)]

Not me.

[Baroness Chakrabarti (Lab)]

—I apologise. Clearly one of the reasons this is so sensitive is that, beyond this Committee and this Chamber, there is not yet even a settled courtesy about some of these matters. If I have offended any Member of the Committee, I apologise.

I was born a woman, and I still identify as a woman, but I have always tried to disagree well with people, including those on the Benches opposite, who I disagree with across the piece. I have never seen all men as a threat, and I have certainly never seen people of other races, sexualities or sex as a threat, and I am not calling anybody names in this debate.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

Can I just clarify one thing? Many trans people do not agree with some of the orthodoxies that have become associated with trans activism. The inference was that some people possibly have a particular view because they have not met any trans people. That is not true. Whole swathes of trans people do not go along with a particular political opinion, for example in relation to prisons, as in this instance. I am concerned that it is not seen that those people who argue a gender-critical view are doing it because they are ignorant and have not got out enough.

[Lord Paddick (LD)]

I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.

The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.

Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.

Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.

A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues a legitimate aim, including

“facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health.”

It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:

“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—


as this amendment proposes. He continued:

“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”


The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.

The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:

“the need to assess and manage all risks is repeatedly emphasised”

throughout existing MoJ policies. He continued:

“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”


Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.

The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:

“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”


He concluded:

“the policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”

This is the same case that noble Lords have been quoting from.

Yes, the Lord Justice said:

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”


He added that some women prisoners,

“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”

This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.

There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.

The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.

--- Later in debate ---

I want hate crime legislation to be extended to misogyny. I very much hope the Equality and Human Rights Commission continues its pursuit of clarity and consistency, and I was interested to hear the remarks of the noble Baroness, Lady Falkner. I cannot see that conflating sex and gender, as in this amendment, goes in the right direction. We should wait to hear what the Law Commission advises.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am of a mind to be opposed to the introduction of a misogyny hate crime, but your Lordships will be delighted to know that I will not be sharing my broader thoughts with the Committee at this late hour. However, there are problems that we need to be clear about before we can even have this conversation. What is our definition of misogyny here? We just assume that we are talking about it as a hatred of women, but it is not straightforward to legislate against hatred of women in 2021, when there is such a toxic debate about what our definition of a woman is. What is a woman, and who is and is not a woman? We heard a very lively discussion earlier; we in this place do not necessarily agree.

We know that somebody can simply declare themselves a woman, regardless of biological reality. We know that the debate about whether only women have cervixes has scuppered leading politicians, who seem unsure about biology in that regard. I do not say this to be glib, in case the noble Baroness, Lady Chakrabarti, thinks I am trying to stir up trouble again. I do so because it seems a genuine issue that the conflation of sex and gender—I know that the amendment does not do that; it separates them out—means that “misogyny”, as hatred of women, is not straightforward at the moment.

I also want to know which or what misogyny this amendment is trying to address. If you erase, for example, sex-based rights, which is what some feminists think is going on at the moment, is that a misogynistic outlook? Some feminists certainly argue that it is. There is certainly a huge amount of visceral and vile hatred thrown at gender-critical women, meted out by some of the gender and trans extremists—not by trans people in general, I hasten to add, but the kinds of people who drove Professor Kathleen Stock out of her job at Sussex University. They sounded misogynistic to me, but are they the target of this amendment? I am drawing attention to the fact that wanting a misogynistic hate crime does not clarify to me what the amendment is trying to do.

I understand that what I have said is contentious and that not everybody here will agree with some of the points I have made even so far. In this context, is it appropriate to get the law, let alone the police on the ground, to try to untangle what is a very toxic discussion in society and implement this? I do not know how putting that on to the police will help women.

[Lord Russell of Liverpool (CB)]

Would the noble Baroness perhaps accept that if she was to speak to some of the senior police officers, men and women, who have to deal with the victims of hostility and aggravated crimes, largely motivated by misogyny, and ask them what they think misogyny is, she would get a very clear response? They interact on a day-to-day basis with people who are direct victims of it.

While it is very interesting to have a “Moral Maze”-like discussion at a theoretical level, to be clear, what those of us proposing this amendment, including the noble and learned Lord, Lord Judge, want, is to do something now for the victims experiencing hostility based on misogyny. We should not be talking in airy circles about this; we need to do something.

[Baroness Fox of Buckley (Non-Afl)]

I will try to avoid airy circles. Not long ago, I was invited to speak to a gathering of police officers of various ranks on the issue of hate crimes and I can safely say that it was a 50/50 split. As an aside, quite a number of the female officers there were supportive of me and my position, so this is not an airy-fairy, “Moral Maze” position, although it does try to have some principle.

I was about to go on to talk about policing. I understand that one of the reasons there is a sense of urgency about making misogyny a hate crime is in response to horrendous and high-profile murders and rapes of women. We are all mentioning Sarah Everard, but there are many more. I wonder whether, in fact, framing violence against women through hate will solve the problem that it says it will tackle. As far as I can see, we have laws against indecent exposure, stalking, voyeurism, sexual assault, domestic abuse and rape. They are criminal offences, largely serious, and I do not understand why an additional law would act as a further deterrent or reassure women—I do not get that. If, as some argue—I agree with them—women are having problems gaining justice for those very acts in the courts at present, why would hate crime as an aggravated offence make any difference if the crimes in question are not being policed, investigated or prosecuted satisfactorily in the first place?

When I read the literature on misogyny and hate crimes—this was mentioned by the noble Baroness, Lady Newlove—the theory goes that minor incidents of gross sexist behaviour are misogynistic and indisputably part of a continuum that will lead to more serious crimes. I worry, however, that there is a danger there of relativising the horrors of rape and murder and tangling up the police in events that are not as serious, meaning that they take their eye off the ball in what I think they need to be doing: policing the streets, protecting people, prosecuting and so on. I am worried that this will cause a distraction for the police from doing the very job they need to be doing.

To use one example—I have been involved in talking to people in the area—the organised networks of male grooming and the systematic abuse and rape of vulnerable young women in Rochdale and Rotherham were largely ignored by the authorities, downplayed and continually not discussed. That is what we should be discussing here. Labelling the abuse as misogynistic does not seem to me to help; I just want the authorities to do the job of investigating when women are abused. That is far more important.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly—the noble Lord, Lord Russell, will be pleased to know—to offer the Green group’s support for Amendment 219 in the name of the noble Baroness, Lady Newlove. I shall simply make two points, one of which draws on the recent intervention by the noble Lord, Lord Russell.

First, the noble Baroness, Lady Newlove, referred to the origins of this amendment. Nottinghamshire Police Force has been a pioneer in this area. In my contribution on this subject on the Domestic Abuse Bill, I looked back beyond that. If you look at the history of how Nottingham police came to be doing it, it began with a group called Nottingham Citizens and a survey it conducted among the people of Nottingham. That led to a conference held at the Nottingham Women’s Centre, which informed the police and police action. This is something that very much grew from the grass roots up. In response to many of the contributions from people advocating Amendment 219A instead: this has been proven to work. It is there demonstrably on the ground. The fact is there.

For my second point, I refer to the author Caroline Criado Perez and quote her:

“There is enough data to know that men who kill women do not suddenly kill women, they work up to killing women … If only we were to listen to women and pay attention to the misogyny and aggression and violence that they deal with on a daily basis.”


That is what Amendment 219 seeks to do. The noble Baroness, Lady Noakes, suggests that we have to wait and wait and wait. I would suggest we have been waiting lifetimes—centuries—for this action. We have a proven model that has been shown to work. Let us put it into effect.

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

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

[Viscount Hailsham (Con)]

My Lords, I strongly support the proposed new clause and I will give it all the support I can. The arguments put forward by my noble friends are, frankly, unarguable against.

There are three propositions that I think are affronted by this notification of non-crime hate incidents. The first is the chilling effect on free speech. The noble Lord, Lord Pannick, illustrated that very clearly. One has to be assured of the right to express one’s views without the risk of having this notification made against one.

Secondly, one has to recognise that these are very long-standing notifications, which can have a seriously prejudicial impact on individuals. That is thoroughly undesirable, especially as the individual has no right of appeal or an effective way of challenging. Judicial review, for most people, is not an effective way of challenging.

Thirdly, there is the point made by all noble Lords who have spoken so far. There is no statutory guidance; it is local police policy which influences the way these notifications are made. That is inherently unjust, having regard to the impact that this could have.

Finally, I welcome very much that the regulations are to be made by the affirmative procedure. However, as I have said in this House and elsewhere on many occasions, while that is a good thing in the sense that the comments made by your Lordships and those in the other place can be heeded, we do not have the power to amend the statutory instrument. I have long argued that this House and Parliament in general should have the power to amend the contents of statutory instruments. This is a good example of where that would be beneficial.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I enthusiastically endorse these amendments and thank the noble Lords, Lord Moylan, Lord Pannick, Lord Macdonald and Lord Sandhurst, for raising this crucial issue. The issue of non-crime incidents has been of concern to a number of us for some years and it is good that it is getting some parliamentary attention at last. I particularly credit those organisations and publications that have persistently raised it in the public realm and whose research informed my remarks, especially the Free Speech Union, of which I am on the advisory council, the anti-racist campaign Don’t Divide Us, and Spiked online.

Too many avoid the issue because it is rather tricky and contentious. One of the reasons it is difficult to raise is because nobody wants to look as though they are being soft on hate incidents. However, I am concerned that this in itself has led to a degree of chilling self-censorship and allowed some confusion to arise about what is and is not a crime when the police are involved.

When the public hear the phrases “hate”, “hate crime” or “hate incident”, they instinctively think of, for example, someone being beaten up because of their skin colour or being harassed in the street because they are gay, and they are appalled and shocked. We assume the worst kind of bigotry and our instinct is that something must be done. However, it is not so clear cut. According to the hate crime operational guidance issued by the College of Policing, hate crime is often an entirely subjective category, based on the perception of the alleged victim; I will come back to this.

What is extraordinary about the guidance on hate crime is what the police consider to be successfully tackling hate crime. The guidance says:

“Targets that see success as reducing hate crime are not appropriate”.


That completely befuddled me. The guidance says instead that the measure of success for the police is

“to increase the opportunities for victims to report”.

I fear that, in this act of enthusiasm to get more people to report hate, the police have muddied any clear distinction between what is criminal and what is not.

The focus on reporting initiatives led earlier this year to rainbow-coloured hate crime police cars patrolling local areas, with the aim of giving communities the confidence to come forward and report hate crime. However well-meaning, such awareness-raising initiatives often encourage people to come forward and report things that are not crimes at all. In fact, earlier this year, a police digital ad van trawled around the Wirral, warning that

“being offensive is an offence”.

Actually, being offensive is not a criminal offence. After a backlash, local police clarified that this was an error. Why did the police get it so wrong in terms of what is a crime?

This is not an isolated incident. A few years ago, Greater Glasgow Police tweeted an ominous warning:

“Think before you post or you may receive a visit from us this weekend.”


This was posted alongside a graphic that warned social media users to consider whether their treats were true, hurtful, unkind, necessary and then, right at the end, illegal. Then there was the South Yorkshire Police Hate Hurts campaign, which asked people to report any “offensive or insulting” social media posts to police officers. None of these is a crime and, in relation to a Bill named the Police, Crime, Sentencing and Courts Bill, it is a concern if the police do not know what is or is not a hate crime, so much so that Cheshire Constabulary recently admitted to conflating crime and non-crime in its hate crime statistics.

This amendment can potentially start unpicking this muddle, because the source of the confusion about what is or is not a crime lies in the creation of the category of non-crime hate incident. As we have heard, this category was established by the College of Policing and its guidance encourages police officers to overreach and police non-crimes. It is worth telling noble Lords how this is posed in the guidance. The NCHI guidance states:

“Where it is established that a criminal offence has not taken place, but the victim or any other person perceives that the incident was motivated wholly or partially by hostility, it should be recorded and flagged as a non-crime hate incident.”


Note the use of the word “victim” to describe the reporter or accuser, when no evidence exists that any crime has been perpetrated against him or her. The victim has to claim only that some action or speech was

“motivated wholly or partially by hostility”.

“Hostility” itself is a vague and subjective term. The guidance continues:

“The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception.”


Furthermore, any other person’s perception can be the basis for this, which is even further removed from any real incident, let alone crime.

Finally, the guidance notes:

“Police officers may also identify a non-crime hate incident, even where the victim or others do not.”


Why? It is because:

“Victims … may not be aware that they are a victim of a non-crime hate incident, even though this is clear to others.”


I find this a kind of dystopian, Orwellian, nightmare world. Imagine untangling your way through that; your name, unknown to you, can appear on a database intended for recording details of criminal offences and be subject to checks by vetting officers when you apply for jobs, as we have heard from noble Lords.

I hope noble Lords can see the dangers here. The subjective nature of the NCHI guidelines creates a real possibility of abuse of the system by people acting in bad faith. The NCHI guidance means that unfounded, spurious and malicious reports can be filed and never tested, let alone the fact that this data gathering distracts the police from pursuing real criminals. I was contacted by one person ahead of this debate, who said, “I had a visit from the police because a member of staff offended another member of staff, who works for me. No crime was reported. The police spoke to me for 40 minutes. In the meantime, the 200 pallets that I reported stolen the week before did not generate a phone call or visit.” Then there is the chilling effect of NCHIs on free speech, as other noble Lords have vividly spelled out. NCHIs can act as a threat, a kind of surveillance of free speech, by people who say it will eventually lead to crime. Anyone who is following the fate of gender-critical feminists, who are constantly accused of hate by a particular brand of trans activist, will understand just how damaging that is to free speech.

This Government tell us all the time that they are keen to oppose cancel culture. I fear that these NCHIs inadvertently contribute to that censorious climate of denunciation and the toxic climate of hate, which we are all keen to combat. I therefore urge the Government to consider these amendments carefully and remove this contradictory anomaly, which, I fear, brings the police and criminal law into disrepute.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was not going to speak on this, because there are much bigger issues coming up later, but I had seen this in a reverse way. It is not completely clear, if you do not have a QC’s training or legal training of any sort, whether this amendment is trying to help or hinder the collection and retention of data.

To me, this seems like a good opportunity to talk about misogyny and other abusive behaviour that falls short of a criminal offence but none the less should be recorded on a person’s police record. The biggest benefit of retaining that data is that it might help in the future investigation of criminal offences. For example, if someone is a notorious misogynist but it has never reached the threshold of criminality, this will help the police’s line of inquiry if said person is later a suspect in a violent attack against a woman. As we all know, the justice system is biased very strongly against women committing crimes.

What I did agree with from all those offering support for the amendment is that proper oversight is absolutely necessary. There should be some regulation about this, because some of the anecdotes mentioned seem ridiculous. I still have not decided whether I support this; it would depend on how it dealt with proper oversight.

Assisted Dying Bill [HL]

Baroness Fox of Buckley Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the supporters of the Motion emphasise the technical and modest parameters of the proposed laws. However, since I have been in this House, I have endlessly been told that legislative changes send important messages, and it is the possible messages of this Bill which lead me to oppose it.

Taking a step back: what is our message if we encounter someone who implores us to help as they are suffering unbearably, who tells us they are in intense pain and their life is not worth living, who is disgusted by their own body and who begs for help to take control over how and where they die? We are urged here to be compassionate and concede to these understandable suicidal thoughts. However, perhaps noble Lords might pause more if they knew that these pleas are taken from a self-harming site, from teenagers on message boards on online suicide sites, and they include an anorexic young woman who loathes her body and a bullied, despairing young man about to jump off a bridge. Note that in their minds they are suffering just as much pain as the terminally ill citizens the Bill addresses.

In my view, when anyone of any age says they want to die, there is only one message: we cry out loud, “Don’t do it!” We must remain loyal to the value of their life and not accede to their subjective wishes, however heartfelt. Our message should be, “If you’re in unbearable pain, let society hold your hand, mop your brow, surround you with a genuine protective ring of social solidarity”—with palliative care, of course. We must also say, “However malfunctioning your body, or demented or disturbed your mind, you are still you and every moment you are alive is precious to us all—and you are not a burden.”

A note to my fellow libertarians: your agency, autonomy and desire for control will not be honoured by handing over your death to doctors, the law courts and the state.

What message we send matters because of two powerful contemporary trends. First, younger generations are being inculcated with and have internalised a new form of cultural pessimism. Too many are consumed by dystopian, angst-ridden fears of the future, and anxiety and mental health problems are spiralling. Our task surely must be to reassure: to make a positive, life-affirming case for the value and worth of human life, whatever the challenges, circumstances or discomfort —the very opposite of the message of the Bill.

Secondly, for those same young people, psychological and physical pain are often interchangeable. That erosion of the distinction of types of harms is causing major free speech disputes, when words and ideas are treated on a par with violence. Regardless of my qualms about that approach, it is now a social norm. So to those who say, “Don’t worry, this law will never lead to those suffering mental anguish being allowed access to state-endorsed assisted death”, I say that I am just not convinced—and that is just one of the many reasons why I am firmly against the Bill.