Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Hamwee Excerpts

Tuesday 27th March 2012 Lords Chamber

[Baroness Butler-Sloss]

As the co-chairman of the All-Party Group on the Trafficking of Women and Children, I again congratulate the Government and express my gratitude not only to Ministers in this House and in another place but to the government lawyers and officials. The people who were so helpful on the previous set of amendments have been equally helpful on this, and I and those behind me are enormously obliged to them for the care with which they have gone through this and their ability to recognise, listen to, take on board and accept the points that have been made which are now reflected in this excellent amendment.

I wonder whether I might again produce a wish list for consideration at some later stage. There are four points that I would like to make. First, there are those who have been trafficked who do not know that they have been trafficked and will need advice about whether they have been trafficked. Secondly, there are implications for referral to the national referral mechanism. That point was discussed with the government lawyers. I understand why Ministers do not want to help those who do not refer themselves, but there will be a group or groups of people who will fall through the net. Thirdly, there are those who do not know whether they may have an entitlement to leave to remain other than by an asylum claim, such as discretionary leave to remain. That group will also not be covered. The fourth group is rather different. It is those who would wish to challenge a decision by the Home Office that they do not come within the NRM. Those are perhaps matters for another day. At the moment, those behind me and I are enormously grateful for what we have already got.

[Baroness Hamwee]

My Lords, I, too, welcome these amendments and add my thanks to the officials who have dealt with them. My file of print-outs of e-mails last week is quite large. I thank the Minister as well. I know that his experience in Scotland means that he was already alert to the issues surrounding trafficking. I think the whole House owes the noble and learned Baroness enormous thanks for keeping us at it and for keeping at it herself.

The Minister mentioned conditions, and I understand the concern about possible overuse—abuse would be the wrong term here—of the category of victim of trafficking for immigration applications far in the future. During the discussions last week about what has ended up as these two amendments, there was a suggestion that there might be a reference to prescribed conditions and then a decision that what is now Clause 11 could cover matters, as the Minister said. Will he tell the House whether there are any other concerns that the Ministry has in mind at the moment—it may find others—apart from the time limits?

The noble and learned Baroness mentioned concerns about the workings of the national referral mechanism and time limits. Like her, I hope that that will be kept under review. I have two other areas of concern around this. If legal aid is not available until there has been a reasonable-grounds decision, will the Border Agency put the immigration case on hold? In the mean time, what happens if the individual is in detention or is without housing and food? At the previous stage of the Bill, I referred to the complex needs of trafficked people and mentioned housing and benefits. Immigration is often the gateway to them. Article 12 of the convention refers specifically to accommodation and generally to subsistence, and I suspect the Government would prefer to be clear about this rather than find themselves with claims under what is now Clause 10. The importance of identifying victims of trafficking is a moral matter, but it is also important because of their role in detecting and prosecuting traffickers, and it may take some time for a victim to be identified or to self-identify, so I am adding to the list of considerations. The Government have said that they will keep matters under review and they now have a mechanism to do so. Therefore, I welcome the amendment, although there may still be work to be done.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, I wholeheartedly agree with what has been said by all speakers on this matter. For any new criminal offence to be created, or for any existing criminal offence to be extended, there is a heavy onus on the Government of the day to show that that is reasonably necessary. It is against that template that Clause 145 fails completely. There is a great deal of misunderstanding about the matter, which may very well have been deliberately fomented by the right-wing press. It is said to people, “What would you do if you were on holiday and came back to find that there were 20 people living in your house and having every intention of living there for ever?”. Of course, you would say it would be absurd for such a situation not to be visited by a criminal sanction—but it is already visited by a criminal sanction.

The civil law has catered for this situation—whether it be developed property or not—for a long time, since the early 1970s. Those of us who belong to the noble calling of the law will realise that Order 24 and Order 113 apply and provide a procedure that is swift, effective and cheap, provided it is competently carried out. There is no problem whatever so far as the civil law is concerned.

In 1977, with the Criminal Law Act that the noble Baroness has referred to, it was realised that there were situations where owner-occupiers were in fact trespassed upon in their own homes, normally when they were away for a day or two or where people were expecting to move into property but found that they could no longer occupy it. Section 7 of that Act said very clearly that it did not apply to non-residential property. A clear distinction was drawn and deliberately considered in detail by Parliament. That seems to have been a boundary of common sense, fairness and justice.

Why is that boundary being transgressed now? What is the case in favour of changing that boundary? It is my submission that there is no case whatever for doing it. The civil law amply provides for civil sanctions. If those are not obeyed, then of course the courts can always act on the basis of contempt of court. The punishments are severe, as we know. The criminal law deals with those cases when it is right, proper and inevitable that there should be a strict criminal sanction. It does not apply to non-residential property because it was never thought necessary that it should do so. The Government of course have issued a consultation paper on this matter, to which a substantial number of people responded—96 per cent of whom said there is no need to change the law at all. This is not a case of softness towards people who defy the law but a case of looking in a mature, fair, just and proper way at a problem. The conclusion of so many people in an excellent position to judge is that there is no need whatever to do anything. A letter in the press signed by 163 distinguished petitioners, jurists and academics, supported that view. The Criminal Bar Association, the Law Society and the Metropolitan Police supported that view. In relation to the consultation, the Metropolitan Police said:

“The Metropolitan Police, responding on behalf of the Association of Chief Police Officers, considered that the law was broadly in the right place and that the existing array of offences allowed them to tackle the worst cases of squatting (e.g. where squatters cause the rightful homeowner to be displaced) … They warned that new offences could have an impact on policing in terms of community relations, local policing objectives and cost”.

On the question of cost—and I have no doubt that other noble Lords will deal in some detail with this matter—it is abundantly clear that the Government’s own estimate of a cost of some £25 million to the public purse over a period of five years is woefully inadequate and entirely unrealistic. They have not taken into account the fact that tens of thousands of persons squatting do not apply for housing allowance. These cases, if people are ejected from their squats, will find their way into the courts. There will be massive expenses adherent to that situation. Again, there is little doubt that the figure of £25 million— I would not seek to try to set a specific figure—can probably be multiplied by 10 or 20, leading to a massive non-saving in a Bill that is dedicated to saving expense to the public purse.

I ask the House to consider one further matter. This is retrospective legislation. Clause 145(1) applies to a situation when a person, the defendant, has trespassed in the premises, knowing that he is trespassing. He may have entered 10 years before, when there was no such thing as a criminal sanction in relation to that type of trespass. That is retrospective legislation and that is what Parliament abhors and resorts to only in the most drastic of circumstances. It is the very thing that is condemned, as the House knows, by Article 7 of the European Convention on Human Rights.

All in all, this is a wholly unnecessary piece of legislation. It is utterly merciless, utterly unfeeling and utterly costly, and it is likely to be a heavy and unnecessary burden on the time and energies of the police. The next best thing to rejecting it would be to accept the amendments, which I support wholeheartedly.

[Baroness Hamwee]

My Lords, I congratulate my noble friend on her persistence in dealing with this matter and provoking some very powerful speeches from your Lordships, as well as making her own.

The issue is homelessness and housing supply. Whatever is being done now by the current Government, the stark fact is that at this moment the housing needed is just not there and cannot be created in an instant. Ordinary, decent, desperate people, whose motive is not envy, or to deprive others, or to make a political statement, are simply seeking a roof. Many of them would be regarded as vulnerable, in any normal sense of the word. Like my noble friend, I am interested in and concerned about the interface between these provisions and local authorities’ housing responsibilities —in particular, whether a conviction is needed for someone who has been squatting to be unintentionally homeless. How does all that fit together, and what guidance will be given to local authorities on this?