Offensive Weapons Bill
Baroness Hamwee ExcerptsWednesday 30th January 2019
(5 years, 9 months ago)
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The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the purpose of the amendments in this group is to remove loopholes in the law relating to the sale of offensive weapons to persons under the age of 18. Amendment 40 amends Section 141A of the Criminal Justice Act 1988, which prohibits the sale to a person under 18 of knives, knife blades, razor blades, axes and other articles with a blade or sharp point made or adapted for causing injury.
The prohibition does not apply to weapons covered by Section 141 of the 1988 Act. Section 141 prohibits the supply of certain offensive weapons that are set out in secondary legislation. These include knuckle-dusters, push daggers and zombie knives, which are excluded from Section 141A on the basis that their supply, including their sale, is already prohibited and therefore the prohibitions on their sale to a person under 18 and their dispatch to a residential premise or locker is not relevant.
However, a significant number of exclusions and defences apply to the supply of weapons covered by Section 141. These include an exemption for antique weapons and defences for swords with a curved blade of 50 centimetres or more made before 1954 or by traditional methods and for sporting, re-enactment purposes and religious reasons. Given these defences and exemptions, it is possible that offensive weapons covered by Section 141 could be sold to a person under the age of 18. Amendment 40 therefore removes the exclusion of offensive weapons covered by Section 141 from Section 141A of the 1988 Act. Amendments 48 to 53 to Clause 19 are directed to the same end.
Clause 19 defines a “bladed product” for the purposes of the new offence of arranging delivery of a bladed product to a residential premise or locker under Clause 17. “Bladed product” excludes any weapons in an order made under Section 141 of the 1988 Act. It is therefore possible that offensive weapons covered by Section 141 could be dispatched to a residential premise or locker on the basis that they were covered by one of the exemptions or defences available to Section 141 articles—for example, if they were an antique or intended to be used for sporting purposes. Amendments 48 to 53 therefore remove the exclusion of Section 141 from Clause 19.
I hope that, with that explanation, noble Lords will agree that these amendments sensibly close a gap in the existing law and the provisions in Clause 19. I beg to move.
Baroness Hamwee (LD)
My Lords, I am glad as always to have the Government’s explanation for their amendments, and my comments are not about substance. Earlier in the Bill as well as on this clause, I found that I spent quite a lot of time going to and fro between Section 141, the order, Section 141A and so on. That is okay for us—it is our job—but one would not like to think of members of the public having to scour through all this to find out what sort of offensive weapon they might have. Will the Home Office give some thought as to how they can produce a Keeling schedule for the public?
Baroness Williams of Trafford
I can utterly appreciate the noble Baroness’s point. When I look at legislation, I have to refer to other legislation, and it can be a minefield, but such is the nature of legislation built up over time. The guidance will help people in that endeavour and, as I said on Monday with reference to another issue, it will be very helpful to members of the public in knowing exactly where the offences are and what aspects of the Bill strike out other aspects of legislation.
Baroness Hamwee
Member’s explanatory statement
The purpose of this amendment, along with the amendments to page 17, lines 38 and 41, is to probe the extent to which the offence in Clause 17(2) covers delivery to a person who works from home.
Baroness Hamwee
My Lords, in moving this amendment I will speak also to Amendments 43B and 43C. We are still on the issue of residential premises, and I will not go down the route of customs declarations or indeed of the Immigration Bill as it might apply to New Zealand sheep-clippers and so on. There are a lot of aspects that could be raised.
On Monday, the noble Earl, Lord Erroll, asked about farm-houses. The noble Lord, Lord Lucas, and my noble friend Lord Paddick asked how you know about residential premises. My noble friend, referring to UPS and Royal Mail, quoted comments made by a company in this sector about unworkability in the real world. The Minister convinced me on Monday about not wanting to criminalise Royal Mail through my amendment. She mentioned then that Clause 17(6) was there to satisfy concerns about small traders—individual craftspeople and those running relatively small businesses from home. I would like to raise aspects of that in this group of amendments.
The first of my amendments would provide that residential premises are premises used solely or principally for residential purposes. We have gone round in so many circles on this, but it seems to me that the amendment would be of reassurance to individual craftspeople, to take just one group, who use a shed at the back of their house or a room in the home for their business.
Amendment 43B is a drafting point, and not a very good one. I am afraid that Amendment 43C would create a double negative, but, again, it deals with the owner or occupier who resides in the premises. It probes whether the premises can be residential for somebody other than the resident carrying on a business in it, even if the residential area is only a small part of the whole of the premises.
I have been trying to apply the terminology of the clause to what one knows goes on in all sorts of different types of premises, because we are causing—certainly for me—a good deal of confusion. As I have said before, one wants to get it right, and, as my noble friend and the noble Lord, Lord Kennedy, said, we are trying to make this Bill workable and fair. I beg to move.
Baroness Barran
There is no restriction on delivering to a business premises.
Baroness Hamwee
My Lords, the Official Report has already recorded my response, as noted by the noble Baroness.
I think we will all want to spend some time after this stage of the Bill looking at the various provisions that together make up what can and cannot be done. I would add to the mix the point raised on Monday which arises under Clause 18—it is not only my noble friend’s campaign about offences and defences—about the terms “all reasonable precautions” and “all due diligence” and how “all” applies in this situation. I want to spend quite a lot of time understanding what we have been told, how it is reflected in the Bill and what we should pursue at the next stage. I beg leave to withdraw the amendment.
Baroness Hamwee
Member’s explanatory statement
This amendment, and the other to page 18, line 5, would replace the short-term custodial sentences in Clause 17 with community sentences.
Baroness Hamwee
I shall speak also to Amendments 43E, 63A, 63B, 64A, 65A, 65B, 65C, 65D, 65E and 65F. This takes us back to community sentences. We debated their value and the problems associated with short custodial sentences extensively on Monday. I do not want to rerun all the same points today on Clauses 17, 22, 23 and 24, although I have noticed that Clause 23 brings in the possibility of an indictment where the term would be much longer. To the extent that that is relevant to this discussion, it strengthens my view that seriousness can be reflected by the prosecution being sent up to the Crown Court. The Minister directed the Committee to Section 150A of the Criminal Justice Act 2003 reminding us—or in my case, informing me—that a community sentence can be imposed only if the offence might attract a custodial sentence. I would say that was game and set—or some other sporting analogy—but I am not sure it is quite yet match, at least not until I am convinced that this is a good way of going about sentencing as there is a much wider issue behind this.
Section 150A does not apply if Section 151(2), which confers power to make a community order, does apply. Section 151 is about community orders for persistent offenders previously fined. Am I right in thinking that this is not yet in force? Has it been shelved? Is there an intention to review it? More widely, does the Minister accept that, given the potential value of community orders, the generally acknowledged problems with short custodial sentences and the state of our prisons, it would be a good move to review Section 150A as she explained it on Monday? I beg to move.
Baroness Williams of Trafford
My Lords, this group of amendments echoes one of our debates on Monday; namely, whether it is appropriate to provide for custodial penalties of less than six months’ duration for certain new offences in the Bill. It will not come as a surprise to the noble Baroness to learn that I remain unpersuaded of the case for replacing custodial sentences of up to six months with community sentences for the knife-related offences in the Bill. As we have already discussed in Committee, we all know that the impact of knife crime on society is devastating. Young people getting hold of knives by using remote sales can have tragic consequences if they go on to use the weapon for a crime. The possession of prohibited weapons is and should be a serious offence. The Government believe it is proportionate and fair that those committing these offences should expect robust sentences.
The noble Baroness will recall that I explained on Monday that community sentences cannot be set as a maximum penalty for an offence as, under the Criminal Justice Act 2003, community sentences are available only for offences which are imprisonable. In providing this maximum custodial penalty, we are providing the courts with a range of penalties. This gives courts the option to impose a custodial sentence, a community sentence, and/or a fine as they deem appropriate, having regard to all the circumstances of the offence and the offender. I know that the noble Lord, Lord Kennedy, welcomes this flexibility and the range of sentencing options which we considered earlier in the week.
As I mentioned on Monday, there is also the requirement under the Criminal Justice Act 2003 that the court has to be satisfied that the offence is so serious that only a custodial sentence can be justified. I therefore remain confident that the courts will sentence offenders appropriately, taking into account the circumstances of the offence and the offender. Where a custodial sentence is justified, they will impose it, but where a community order would be better for punishment and rehabilitation, while protecting the public, then nothing in our provisions prevents that.
The noble and learned Lord, Lord Judge, is not in his place, but he said on Monday that,
“some short sentences do some good because they punish the offender”.—[Official Report, 28/1/19; col. GC 169.]
I wholeheartedly agree with that sentiment, and we should not now be depriving the courts of the full range of sentencing options.
The noble Baroness, Lady Hamwee, asked whether the provisions of the Criminal Justice Act she referred to are in force. I will have to write to her on that specific question, if she is amenable to that. On that note, I ask that she withdraw the amendment.
Baroness Hamwee
I would expect the Minister to answer no less. She started by saying that I would not be surprised by the Government’s response, and she will not be surprised to hear that we are not persuaded either.
I accepted what she said about Section 150, which is why I looked it up and spent the usual frustrating few minutes trying to work out whether something that applied to it was in force or not. I think it is not, which is why I took the opportunity to ask the question. My overall question is whether it would be a good move to review Section 150A and bring that part of our attitude to sentencing up to date. But we clearly cannot pursue this any further today and I beg leave to withdraw the amendment. I will, however, ask the Minister to accept that I have fulfilled my undertaking to be very quick—the clock had not even reached one minute by the time I had finished.
Baroness Hamwee
Member’s explanatory statement
The purpose of this amendment is to seek clarity as to how the seller can necessarily know the purpose for which the buyer intends to use the knife; and why adaptations are not dealt with in the same way as design.
Baroness Hamwee
My Lords, Clause 18 sets out defences to an offence under the previous clause. One defence, in subsection (3), is if the person charged proves that,
“the bladed product was adapted for the buyer before its delivery in accordance with”,
the buyer’s specifications and that,
“the adaptations were made to enable or facilitate the use of the product by the buyer or its use for a particular purpose”.
My amendment would take out the latter part of that provision.
I wrote down “designer knife” as a heading for my notes and then thought that it has a very different and much more sinister connotation than referring to a chef’s knife, which is the sort of thing that I understand this provision is aimed not to block, especially when we talk about adaptations in the context of designer knives. No doubt the proof— there has to be proof here—would in the event be a matter for the jury. But in view of the wording I referred to a few moments ago about the defence of taking all reasonable precautions and exercising all due diligence, it is important that the person who may commit an offence knows what precautions to take.
Proof that the product was designed in accordance with specifications that the buyer provided seems likely to be easier. They would be unlikely to make an order which does not set out the specifications but that may not be the same with adaptations, because they might have a conversation on the phone about their requirements. I want to pursue that issue, and why the activities which amount to the defence are to be undertaken “before its delivery” when those words are not in Clause 18(2). I do not see the distinction there nor the distinction between the two subsections, given the words “for a particular purpose”. How does the person who may be charged know the purpose? I beg to move.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for setting out the amendment in the name of her noble friend Lord Paddick. As we have seen from earlier debates, these are complicated provisions but unavoidably so, I am afraid. She wants to know two things: first, how the buyer can know what purpose the bladed product will be used for and, secondly, why the provision relating to the adaptation under Clause 18(3) differs from that for design and manufacture under Clause 18(2). I hope to be able to provide some clarity but perhaps I may first summarise what we are talking about.
The defences at subsections (2) and (3) of Clause 18 are aimed at allowing the dispatch of bespoke, handmade knives to a person’s home address. One issue that came out clearly from the consultation is that there is a significant number of makers of handmade knives. These are often individual tradespersons who make specialist knives for individual buyers. The most commonly cited example, which the noble Baroness gave today, is chef’s knives, which are made or adapted to specifications provided by the chef—for example, on the length or shape of the blade, or the weight of the handle. Such handmade bespoke knives are very expensive and, in most cases, there is a relationship between the seller and the buyer, which means there is no risk of these knives being sold to a young person. We therefore wanted to allow such knives to continue to be sent to the buyer’s home address.
Clause 18(2) covers where a buyer asks a seller, who in such cases is also likely to be the manufacturer, to design or make specific knives to specifications that they have provided. This would cover where a chef, for example, asks the seller to make them a set of knives to very specific specifications. The seller in these cases will often have a relationship with the buyer and it should be easy for the seller to prove that they are making the knife to specifications, because they will have correspondence with the buyer setting out the requirements.
Clause 18(3) covers where the buyer wants an existing knife adapted to meet specific specifications—for example, where a chef wants a blade shortened or changed in shape or where they want the handle changed, or where a disabled person wants changes to a knife so that they can use it—and these changes are to enable the knife to be used for a particular purpose, such as catering, outdoor pursuits or other activities. Again, in these cases the seller will often have a relationship with the buyer and they will easily be able to evidence that the bladed product was adapted in accordance with specifications of the buyer and the purpose for which it was going to be used, because this would be part of the conversation or communication on which adaptations to make. For example, the maker would know that the knife was needed for gutting fish—that issue was raised the other day—or because the buyer had one hand and needed it for sawing branches, as that would be part of the decision on what changes needed to be made. The purpose of Clause 18(3)(b) is to exclude the etching of a person’s name on a bladed product, as we did not want to provide a defence for bladed products where the only adaptation to the product was the engraving of words on, or similar superficial adaptation to, the product.
I hope that, in light of that explanation, the noble Baroness will be content to withdraw the amendment.
Baroness Hamwee
My Lords, the Minister’s last point about engraving a name had not occurred to me, although I do not quite see how it is distinct from the situation under subsection (2), where you might ask for a product to be manufactured with the specification of adding your name. I will go through what the Minister said, but for the moment, at any rate, I beg leave to withdraw the amendment.
Baroness Williams of Trafford
In terms of better regulation, I do not think that it has but I will double-check before Report. It probably has not.
The noble Earl, Lord Listowel, asked about the position in other countries and the approach we have taken. Of course we always learn from other jurisdictions, and I hope that they learn from us, but we must legislate as we consider it appropriate to address the position as we find it in this country. Regarding the problems underlying drug addiction, we will come on to that when we reach Amendment 63 in the name of the noble Baroness, Lady Meacher, who I do not think is in her place at this point.
I want to make one final point about articles with a blade or point: we do not want to capture items such as screwdrivers and crochet needles because they are not usually used for harm—that is not to say they are not used for harm, but not usually. Hence we are referring to “blade” and not “sharp point”. I hope that, with those explanations, the noble Lord will withdraw his amendment.
Baroness Hamwee
Before we get to that point, the Minister has mentioned guidance, which will certainly be very welcome. Can we be assured that the practitioners—I do not mean those with real knives, but those in the criminal justice sector, prosecution, the Bar Council, police and so on—are consulted about how the guidance is presented? I can see a nod at that. That will be very helpful.
I cannot help observing that whoever gave the Minister the note about crochet needles is not someone who uses them, because they have a curved end.
Baroness Hamwee
Member’s explanatory statement
This amendment is to probe why this exemption exists.
Baroness Hamwee
My Lords, I did not move Amendment 55A because there was an equivalent that we debated on Monday. Amendment 57A would have had an equivalent amendment, but I missed it—nobody is perfect. However, this allows us to return yet again to the distinction between sellers outside the UK and sellers carrying on the,
“business of selling articles of any kind from premises in any part of the United Kingdom”,
at the time of the sale.
I was curious about that distinction, and have one or two points I would like to check. Am I right to think that “carrying on business” does not mean that the business has to be based or domiciled to fulfil that description? I assume that the seller does not have to have his own premises and can operate, for instance, from a contractor’s premises; and that the description “selling articles of any kind” will be met if the seller sells teddy bears, for instance, rather than knives from within the UK.
Lord Lucas
Well, my Lords, perhaps we could enter into some correspondence about that. What Amazon does in this country is the fulfilment; the selling is done from Ireland or Liechtenstein, but certainly not from within this country. We need to be clear that these activities can get split, particularly in the case of big companies. The whole action of selling the knife, preparing it for delivery and delivering it is what should be considered as selling it, not just the technical act of selling.
Baroness Hamwee
My Lords, that is why I asked some of my questions, as the activities can be split—although I do not want to promote Amazon. These issues may not be far from the taxation points that arise in connection with some of these organisations. As it happens, I do not quite agree with the noble Lord about who is selling. Last night, I looked up an item that I have only been able to find to buy through Amazon and the website said, “This is dispatched from and sold by” somebody else. However, a lot of questions remain.
Lord Lucas
That is an Amazon Marketplace thing and not an Amazon own product.
Lord Deben (Con)
I was here at our last meeting, when this issue was discussed. It has obviously caused us a great deal of misunderstanding and we have found it quite difficult to undo. I am concerned about the customers; I am not sure that they would understand it at all. Therefore, I hope that the Minister will agree to try to work this out in a way that the public can understand. Part of what we are trying to do is to make suitable controls. I was not able to be here earlier, but I have been here for this discussion. Even so, I am in the same position as I was when we talked about this before: I do not understand it wholly and I am not sure that the noble Baroness does, although she is very clever and often understands things when I do not. Clearly, we do not understand it, so is it possible for us to look at it again? If it means that it is better to be a seller from abroad than to be a seller at home, frankly I would not like to have to explain that on a platform to the public. I would find that difficult. In the end, we ought not to help people who are domiciled abroad in order to avoid paying taxes and who undermine people who are here paying taxes. I am not terribly keen on that and, again, I would not like to explain it on a platform. I always think this about the small “p” political things: if I were standing on a platform and someone asked me the question, could I give them an answer that would not mean that the hall threw rotten apples? I am afraid that this is rotten-apple time.
Baroness Hamwee
My Lords, I am grateful for that. I do not think that I would manage even to get as far as the rotten apples, because I would have bored the audience. It is not just the buyer who needs to be clear about this; it is the seller and everybody in the chain. There needs to be more clarity than I have obtained and I look forward to the meeting when we will discuss this further. I beg leave to withdraw the amendment.
Lord Tunnicliffe
Amendments 59, 60 and 86 in this group, which are tabled in my name, seek to give trading standards powers to enforce the relevant provisions of the Bill and a power to investigate alleged breaches of the relevant provisions contained in the Bill. There are excellent examples of good work already going on, which this amendment seeks to build on. Croydon Borough Council has worked with local retailers to improve their understanding of the law around knife sales through training and to encourage them to go further than required by law through responsible retail agreements and has caught traders willing to break the law on underage sales by using test purchasers in person and online. Croydon trading standards now has 145 retailers signed up to its responsible retailer agreements. It ran eight “Do you pass?” training sessions with retailers over the past year, encouraging additional measures, such as Challenge 25 and the responsible display of knives in stores. The training sessions are a good indicator of which retailers are keen to work responsibly and which might not be. Finally, 61 test purchases of knives have been carried out in the past year to identify those retailers which are not complying with the law. We have also seen excellent work done in this regard by the police in Greenwich through test purchases by cadets.
These additional responsibilities will create a resource issue as this will be an additional power and an additional requirement, but one that I think is needed. I recognise that the Serious Violence Strategy released by the Home Office contained the promise of a prosecution fund for trading standards for two years to support targeted prosecution activity against online and instore retailers in breach of the law on the sale of knives to underage people. The strategy is not clear about how much funding will be made available and gives no clarity to trading standards about support two years down the line. Perhaps the Minister can update the Grand Committee on this.
In putting these amendments forward, I am aware that the budget for trading standards has been cut by half since 2010, from more than £200 million to barely £100 million, while the number of trading standards officers has fallen by 56% in the same period. The cuts I refer to have led to the downgrading of the protections that consumers depend on. In many cases, they have been reduced to a system based on consumer complaints. Relying on such a system is not an effective way to enforce laws, particularly when we talk about the purchase of knives or corrosive substances. I hope to get a positive response and that the Minister will speak to her amendments in this group. I beg to move.
Baroness Hamwee
My Lords, I am not sure whether the Minister wants to introduce the government’s amendments now, so perhaps I should just ask some questions. At Second Reading, I raised the role of trading standards so it is obviously welcome that it is being addressed.
There are some obvious questions about the Government’s amendments. First, why weights and measures authorities? I confess that I have not looked up the statutory definition of a weights and measures authority, but there must be one. Why is it that rather than local authorities? The Chartered Trading Standards Institute makes the point that if the obligation was placed on local authorities as a whole, they might have more flexibility in how they dealt with the issue. Secondly, why is it not a statutory duty? On that point, the institute says that, in its experience, local authorities are less likely to provide the resources to deal with a problem, let alone with the training and recruitment of staff. The issue of resources is huge, and it is the elephant in the room in this context. We are all aware of the constraints on local authorities. It is a while since I was a local councillor, and I used to think that we had problems then. I do not know how local authorities manage now to juggle the calls on their resources, so I must make that obvious point as well as asking these few questions. It is right that the role of trading standards is recognised here, as is their role with offensive weapons as a whole, given their understanding of how the communities where they work actually operate.
Lord Harris of Haringey
My Lords, I apologise for missing the first few words of my noble friend’s introductory remarks on this amendment. I echo what the noble Baroness, Lady Hamwee, said because I wonder whether the wording in the government amendment is as precise as it is intended to be. The Chartered Trading Standards Institute—I refer to my interests in terms of trading standards—says that a correct definition, if you mean just weights and measures authorities, would be,
“a local weights and measures authority”,
in Great Britain,
“within the meaning set out in section 69 of the Weights and Measures Act 1985”.
The Department for the Economy in Northern Ireland may enforce within its area, rather than simply talking in those terms. I wonder whether a broader definition would not make sense, given that in many local authorities now the trading standards function, which is so diminished, is often spread with other responsibilities. That may be something the Government want to take away and look at to make sure that what they are trying to achieve meets the obligation.
The second point about whether this should be made a duty is important as well. People I know very well in the Chartered Trading Standards Institute try to get this both ways: they complain constantly about all the statutory duties placed on local authorities, and therefore the inability of local authorities to take them seriously, but they also say, “Here is something which ought to be a statutory duty”. The psychological effect of making it clear that the Government wish to place a responsibility on local authorities to pursue their role in this matter would be extremely helpful and valuable. If the Government were to find some way of making the resources available, so that, rather than just placing the duty, they could also ensure that local authorities had the wherewithal to take effective action, that would be extremely helpful.
Baroness Hamwee
When that is done, could examples —not a whole list of the grain to which the Minister refers—be given to us?
Baroness Barran
We will gladly do that.
The noble Lord, Lord Tunnicliffe, asked for more detail about the prosecution fund that was announced in the Government’s Serious Violence Strategy. The Government committed £500,000 in 2018-19 and another £500,000 in 2019-20 to support local authorities to bring prosecutions, where appropriate, in relation to age-restricted sales of knives. The prosecution fund is managed by National Trading Standards, which is the body that brings together trading standards representatives in England and Wales. The fund will be used by 11 local areas identified as having a knife crime problem to test compliance with sale of knives legislation. I think the noble Lord will be pleased to hear that Croydon is among the 11 areas since he referred to the good work that is going on there.
Amendment 86 would enable local authorities and companies to establish partnerships with the purpose of complying with the provisions in the Bill. The noble Lord will correct me if I am wrong, but I suspect that this amendment is aimed at extending the benefits of the primary authority scheme. The primary authority scheme was created in response to recommendations in the Hampton report published in 2005, which noted widespread inconsistencies of regulatory interpretation between different local authorities. It was introduced in April 2009. The Enterprise Act 2016 included measures to amend the Regulatory Enforcement and Sanctions Act 2008 to enable many more small businesses and pre-start-up enterprises to participate in primary authority.
The primary authority scheme provides greater regulatory consistency for businesses operating across a number of local authority areas. This is expected to improve compliance with the legislation. The scheme is based on the creation of a statutory partnership between a business and its primary authority. The primary authority acts as a key point of contact for a business that it partners with, in relation to the business’s interaction with local authorities that regulate it, known as enforcing authorities. The primary authority acts as co-ordinator of other local authority inspections of that business. The primary authority supports businesses in meeting their obligations by helping them to understand what needs to be done to achieve or maintain compliance: setting out a way of doing so, or providing information that the method of compliance chosen by the business is acceptable. For the benefit of noble Lords, I will mention that all the major supermarkets, Amazon and the Association of Convenience Stores—given that your Lordships have mentioned the importance of smaller retailers several times—are all part of the primary authority scheme. The scheme has been received positively and has had widespread uptake and support from businesses, professional bodies and local authorities. Government Amendment 82 therefore extends the scheme to the sale of bladed articles and corrosive products. Amendments 88 and 90 are consequential on the earlier amendments.
In short, the government amendments in this group achieve much the same end as the amendments in the name of the noble Lords, Lord Tunnicliffe and Lord Kennedy. On that basis I hope that the noble Lord will be content to withdraw Amendment 59.
Lord Lucas
In moving Amendment 61, I shall speak also to Amendment 62. Amendment 61 is intended to remove or make it clear that certain knives do not fall under the prohibition in Clause 21. There are a number of occupations and trades where it is very important to be able to have a knife that can be opened with one hand. This is often a safety-critical feature—if you are a climber, an at-sea fisherman, a parachutist or in various other trades that involve the use of ropes, you need to be able to cut and at the same time use your other hand to hold on to something. The way that is generally achieved is to have a small button looking something like a wart on the blade that you can push using the pressure of your thumb to open it; sometimes the alternative is a large opening in the blade.
I want to make sure that the Government are clear that those sorts of knives are not intended to be caught by this clause, because—coming on to the history behind Amendment 62—when Clause 139 of the Criminal Justice Act 1988 was promulgated, allowing folding knives with blades shorter than three and a half inches, it was widely assumed that that would allow blades that locked, because nobody who is going to use a knife wants a blade that does not lock. A folding knife with a blade that does not lock is a toy—you can use it to sharpen a pencil and nothing much else safely. If you have any use for it in hobbies or business, you need a blade that will lock open. The locking requirement was introduced as a result of case law.
If the Government wish to maintain that, I would like my noble friend to make it absolutely clear that “good reason” is understood to be really quite wide. A tradesman will generally have among his tools a knife with a blade that locks, because that is all that is safe to use. You can therefore expect to find it in and about their vehicle, when their vehicle is in a public place, or when they are moving between, or might be going to, places where they will need to employ their knife.
At present, people who use knives in such ways tell me that the police are understanding, but if we reach the point of being much harder on the carrying of knives, I want to be sure that it really is understood that a locking knife is an essential tool of the trade, that people who have a trade or hobby that requires it will often have it in their possession and that the police take an understanding attitude to that at a time of heightened tension. I beg to move.
Baroness Hamwee
My noble friend and I have given notice that we oppose Clause 21 standing part of the Bill. Our concern was that expressed by the noble Lord, Lord Lucas, about people who need to be able to open a knife with one hand because their other hand is otherwise engaged in the same operation. We wanted also to know how the needs of disabled people who may have the use of only one hand are to be dealt with. A button, spring or other device that the noble Lord has described seems to be exactly the sort of knife that would fall within this clause. I see a problem there, and I am glad that he has identified it more specifically than we have done. I could not quite see the way to deal with it, so I took the rather wider approach of opposing the clause standing part, but we have to pin it down in a way that satisfies everyone—and not just by the police being understanding.
Viscount Goschen
My Lords, I draw to the Committee’s attention that that this type of knife is often contained in a multi-tool type product, for which there are numerous applications. Motorists, hobbyists, farmers and all sorts of people regularly carry them. They often have small blades which, because of the multiplicity of functions within the product, are accessed by a knob or protuberance of metal. It would be regrettable if such products were caught by accident within the clause.
Perhaps I may ask the Minister a question to which I would be happy for her to reply in writing—it refers to something that we have recently passed. If an individual were to steal a knife from a shop, would they be considered to be guilty also of being in possession of that knife, of carrying it? If not, I suggest that it might be looked at in regulations and that the law should consider it a more serious offence than stealing something of the equivalent value of a Mars bar or some other food item, but it is a technical point.
Baroness Hamwee
My Lords, the Minister will expect us to support the principle of what is encompassed in this amendment. I do not need to repeat what has been said about the importance of diverting—in every sense of the word, with or without a capital “D”—people away from the criminal justice system and towards something that can help them to deal with the problem in all its manifestations. I am not quite sure about some of the wording of the clause—about the need to look at whether there has been a charge or certification by the police force—but those points do not detract from our general support for the approach.
Baroness Chisholm of Owlpen (Con)
I agree with a lot of what the noble Baroness, Lady Meacher, has been saying. In fact, I am involved with a charity in Gloucestershire which deals with women who would otherwise go to prison; instead, the criminal justice system sends them to us. We have three houses in Swindon, Gloucester and Somerset. Most of the women who come to us have been drug addicts and we find that in most cases their problems started when they were teenagers. We have had terrific success in treating them in our houses, giving them the chance of a much better life and of moving on. I ask the Government to think seriously about this amendment.
Offensive Weapons Bill
Baroness Hamwee ExcerptsMonday 28th January 2019
(5 years, 10 months ago)
Grand CommitteeRead Full debate Offensive Weapons Act 2019 View all Offensive Weapons Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 149-II Second marshalled list for Grand Committee (PDF) - (28 Jan 2019)
The Earl of Erroll
Can I add something on that subject? I was not suggesting that the Secretary of State should specify specific company schemes, or whatever. However, I agree entirely that there should be a certification process so that people know whether they are okay or not. If there is not, there will be a massive test case in the courts, which will be very expensive for someone, to test what is adequate. The Secretary of State could avoid this by giving some direction on the regulations which reflects where you can change them, with changing technology, and which would satisfactorily protect the seller from vexatious things and awkward situations. The Government should look at this again.
Baroness Hamwee
I mentioned that, not long before coming into this debate, I—and no doubt other noble Lords—had a note from the British Retail Consortium. It also makes the point about how helpful it would be to have guidance—“possibly through guidance”, it says. Different situations may be different, but we are all concerned about not just protecting the seller but making sure that purchasers are able to purchase when it is reasonable to do so. I think it was my noble friend who mentioned John Lewis’s current policy on sending cutlery through the post.
Baroness Williams of Trafford
The noble Earl, Lord Erroll, and the noble Baroness, Lady Hamwee, essentially come back to the point that the noble Lord, Lord Kennedy, made. Sellers want to make sure they are abiding by the law but, as the noble Baroness said, buyers want to make sure they are abiding by the law as well. On the systems that the noble Earl raised, I hope I did not suggest that he was trying to imply a specific system. I made the point that it would be wrong to specify a system in the legislation, given that systems are developing all the time.
To answer the point from the noble Earl, Lord Erroll, about age-restricted products, I have already mentioned knives, alcohol and tobacco, but lottery tickets are age-restricted as well, of course. Retailers are very used to operating in these systems, without a specific approved system in place.
Lord Lucas
My Lords, I am grateful to the Minister for saying that there will be guidance. Perhaps we might drop that into the Bill on Report, just to make sure. I think that guidance would be enough, but we should recognise that we have chosen to put into the Bill the words “all due diligence” and “all reasonable precautions”. That is a very high test. If we had meant the current systems to apply, we should have left out the word “all”. Nobody gets killed by being sold a lottery ticket—or at least not just one—but we are looking here at things that might quite quickly turn into serious criminal incidents. If in court someone says, “I looked at his passport”, but the police prove that the person in question has no passport, the poor delivery driver or shop worker is sunk. Noble Lords might remember a rather amusing TV ad from when we watched such things, “We’re with the Woolwich”, where somebody showed their Woolwich passbook to get out of East Germany. This passport or driving licence can presumably be of any nationality. How is a relatively untrained shop worker or delivery driver supposed to know that this is a Polish passport, not a Polish bankbook? We are asking people for whom there is no structured training to act as if they are trained. Under such circumstances we have to—
Baroness Hamwee
The noble Lord has made a very interesting point about the phrase “all reasonable precautions” and “all due diligence”. I do not know whether the noble and learned Lord can help the Committee, but that looks like a normal phrase. I did not read it in quite the same way as having to take every possible step that might be a reasonable precaution. I wonder whether the officials might help us as to the provenance of the phrase before Report.
Lord Judge
If I might say so, “all” means “every”. Without “all”, you have just to take reasonable precautions and show due diligence. Once you put “all” in, you fall foul of any particular point you could have but did not look at and did not do.
Baroness Hamwee
Member’s explanatory statement
This amendment would replace the custodial sentences for the new offence in Clause 1 (sale of corrosive products to persons under 18) with community sentences.
Baroness Hamwee
My Lords, in moving Amendment 4 I will speak to Amendments 5, 6, 7, 20 and 21. This is not the first time that the Liberal Democrats has made clear our opposition to short custodial sentences, which, in our view, tend not to do good and too often cause harm. We are grateful to the Standing Committee for Youth Justice and the Prison Reform Trust in particular, as well as other organisations for helping me to articulate this. These amendments and some later ones repeat amendments that my right honourable friend Sir Ed Davey tabled in the House of Commons. We have thrown in some additional references because this is the scrutinising House. I heard a noise of agreement from behind me and it is clear that the noble Lord, Lord Ramsbotham, is on the same page on this.
A good deal was said at Second Reading on the complexity of what lies behind the carrying and use of weapons, and the context of that. Many noble Lords took what we regard as a necessarily broad view of the issues, expressly or implicitly criticising the use of legislation to send a rather broader message than the message to the police, to which my noble friend Lord Paddick referred. The Government recognise this, but not consistently. At Second Reading, I mentioned the Justice Secretary’s apparent opposition to short custodial sentences and his support for community sentences, which the Ministry of Justice’s own research shows are more effective at reducing offending. Surely that view counts. It is not so very long ago that home affairs and justice were in a single department, which was very unwieldly, but I hope that attitudes and values have not diverged to any extent.
Baroness Williams of Trafford
I am happy to look at that point. Of course, every case is different, so I cannot give a pronouncement here in Committee this afternoon. I have visited Styal prison, an all-female prison near to where I live. I would imagine that Styal is an example of best in class, as it tries to support the family as opposed to just dealing with the woman in custody. I recommend any noble Lords who get the chance to visit that prison, which is an example of a very supportive environment.
Baroness Hamwee
My Lords, we have ranged widely and it is tempting to respond to some of the points that have been made, continuing that wider debate, as opposed to focusing on Clauses 1 and 3, but I will try to resist that.
I think that we all agree with the noble Baroness, Lady Newlove, that this is about the quality of sentences. I would regard it as rather despairing to accept that there should be imprisonment because community sentences are inadequate—not fit for purpose, in the jargon. I referred to comments made in April last year, I think, by the Secretary of State for Justice, David Gauke, in response to evidence published by the MoJ showing that, for people with matched offending backgrounds, community orders were more effective than a short prison sentence at reducing offending.
I should make it clear that we are not in favour of selling corrosives that may be misused—I do not want that to come out of this debate. Clause 6 includes the offence of possession, and it is this clause that prompts me to ask whether the Minister can confirm that the offences under Clauses 1 and 3 are summary only offences. Clause 6 refers to conviction on indictment, which would allow imprisonment for up to four years. One always learns something, and I did not expect to learn about the 2003 Act. There are two ways of looking at that: either our amendments are fatally flawed or we have material to come back to at Report. That is neither a threat nor a promise, but perhaps the Minister can answer my question about summary only offences.
Baroness Hamwee
We have all shared a lot more of our views on this Bill than I thought likely to be the case when I tabled these two amendments. I beg leave to withdraw.
Baroness Hamwee
Member’s explanatory statement
This amendment is to probe and clarify why the seller needs to show the method of purchase employed.
Baroness Hamwee
My Lords, in moving this amendment on behalf of my noble friend I will speak also to Amendment 16. These are nothing like as technical as the matters raised in the previous group. Indeed they are probing, as all amendments are at this stage in Grand Committee.
The first probe concerns condition A, one of the defences in Clause 2, to which the noble and learned Lord, Lord Judge, has already referred. The Explanatory Notes very straightforwardly state of condition A that,
“at the time of any alleged offence being committed, a seller had a system in place for checking the age of anyone purchasing corrosive products that was likely to prevent anyone under the age of 18 from purchasing that product”.
That seems quite straightforward. What is important, as I read it, is that there is a system in place to check that purchasers are not under the age of 18. The amendment would delete the words,
“by the same or a similar method of purchase to that used by the buyer”.
I am not entirely clear to what those words refer. I do not understand them and I apologise to the Committee if they are perfectly obvious to other Members. The purpose of my amendment is to obtain an explanation of what the words add to those in the Explanatory Notes.
Amendment 16 relates to Clause 2(10) and queries the term “supply”. We have a buyer and a seller, a reference to sale and a reference to delivery, which is to be read as its “supply” to the buyer or someone acting on the behalf of the buyer. The offence in Clause 1 is that of sale. That is not the same as delivery. I would be grateful if the Minister could explain the choice of terminology here. I beg to move.
Lord Tunnicliffe
My Lords, if I can give some comfort to the noble Baroness, Lady Hamwee, I did not understand it either.
Baroness Williams of Trafford
I am sure that the noble Baroness is very much comforted. I hope I can clarify the meaning.
Amendment 12 seeks to test why it is necessary to include in Clause 2(6)(a) the words,
“by the same or a similar method of purchase to that used by the buyer”.
There are many different ways to make purchases online or in response to an advertisement by post or telephone. The simple purpose of the condition set out in Clause 2(6)(a) is to ensure that, at the time of making the sale, the seller had the required arrangements in place to verify the age of the buyer. This would assist in proving that an offence had been committed.
Amendment 16 seeks to clarify why Clause 2(10) uses the term “supply” instead of “delivery”, given the terms of the Clause 1 offence. The use of “supply” is correct in this context because it is about the actual handing over of the product to a person or their representative at the collection point, rather than its delivery to the address from where the buyer ordered the product. I hope that provides clarification, although the noble Baroness, Lady Hamwee, is looking even more puzzled than she initially was.
Baroness Hamwee
My Lords, I am afraid I remain a bit puzzled. I do not find all of this Bill entirely easy. My prejudice was confirmed this morning when, ironically, I got a rather painful paper cut from the Offensive Weapons Bill. On the second point, “supply” has all sorts of other connotations, particularly with the drug trade. That perhaps diverted me, but “delivery to a person” is not the same as delivery to premises. I remain puzzled by that. I will have to read what the Minister said about Amendment 12, but I thought she more or less said what I said I thought it should mean without the rather difficult words. I will go back and read that.
Baroness Williams of Trafford
Would it be helpful if I wrote to noble Lords giving examples?
Baroness Hamwee
I think that would be an excellent idea. I beg leave to withdraw the amendment.
Baroness Williams of Trafford
You can buy it from either, but the mechanisms for age verification are slightly different.
Baroness Hamwee
We have referred quite a lot to Amazon. I do not use it very much, but the few times I have, I have ordered from Amazon but got my items from the producer or seller, which was often in the UK. Is the seller overseas or in the UK in that situation?
Baroness Williams of Trafford
If the seller is in the UK, the seller is in the UK. If the seller is overseas there is a slightly different mechanism. As I said, that is because of our ability to enforce sales in the UK as opposed to online sales abroad. The two are very different, but we are banning the delivery of corrosive substances to under-18s when ordered from an overseas seller, just as we are banning that here.
Baroness Hamwee
But if I order from Amazon, am I buying from Amazon or from the manufacturer in the UK?
Baroness Hamwee
Member’s explanatory statement
This amendment is to clarify why delivery arranged after the sale is concluded (as a matter of contract) does not fall within the Clause.
Baroness Hamwee
My Lords, I beg to move Amendment 22 but I wonder whether, with the indulgence of the Committee, I can go back to Amendment 12. As it has puzzled at least three noble Lords—three of us have confessed to it—I urge the Minister, as well as writing, to consider whether the wording might be clearer. We would be happy to look at a government amendment on Report because, if it confuses people who are used to reading legislation, there is a good argument for making it clearer to others who will also read it.
Amendment 22 again concerns some detailed wording. Clause 4(1)(c) provides that the clause applies if before the sale the seller has entered into an arrangement for delivery. Why before the sale? Does this apply only if the seller already has delivery arrangements in place? Often that will be the case but I am puzzled as to whether those words might, in a few situations, limit the application of the clause. I beg to move.
Lord Tunnicliffe
May I join the noble Baroness and say that I too am confused?
Baroness Williams of Trafford
My Lords, I fear that I am about to confuse people further—I hope not—because the noble Baroness is effectively asking why Clause 4 is drafted on the basis that the delivery arrangements for an online sale made to a vendor based overseas will have been made at the point of contract and not subsequently. It therefore might be helpful if I explain how we have drafted the clause in this way.
The purpose of Clause 4(1)(c) is to avoid criminalising a delivery company in instances where an overseas seller has simply placed a package containing a corrosive product in the international mail. By doing this, it then places an obligation on the delivery company, and potentially the Royal Mail, to deliver the item without having entered into a contract or necessarily knowing that the package contains a corrosive product. If we did not have the provision in place and in combination with the provisions of Clause 4(1)(d), which makes it clear that the company was aware that the delivery arrangements with the overseas seller covered the delivery of the corrosive product, then delivery companies such as the Royal Mail would be committing an offence.
We want to mitigate this, which is why we have constructed the offence in this way so that it requires the delivery company to have entered into specific arrangements to deliver corrosive products on behalf of an overseas seller.
The noble Baroness looks far less confused than she did in my previous explanation and I hope I have provided the explanation she seeks.
Baroness Hamwee
My Lords, that is perfectly clear and I am grateful. I beg leave to withdraw the amendment.
Baroness Hamwee
Member’s explanatory statement
This amendment, along with the amendment to page 7, line 14, is to probe what “lawful authority” is and how it is obtained.
Baroness Hamwee
My Lords, I shall speak also to Amendments 30 and 31. These amendments are in my name and that of my noble friend. Amendments 29 and 30 seek to understand what is meant by “lawful authority”. In Clause 6(2)—I am not making any concessions about the points made on the first group of amendments this afternoon—it is a defence to prove that a person had “good reason” or “lawful authority” for having the corrosive substance with them in a public place. Obviously, lawful authority is not the same as good reason, otherwise it would not have to be provided for—although one would have thought that lawful authority would be good reason. But what is lawful authority? Where does the authority come from? Who gives it? How does one apply for it? Is it a consequence of some other arrangement that is in place? Amendment 29 applies to England, Wales and Northern Ireland and Amendment 30 to Scotland, but they make the same point.
Amendment 31 makes a very small point, but I have discovered over the years that sometimes small points are worth making. Under Clause 6(3) one can show that one had the corrosive substance for “use at work”. My amendment would substitute for those words “the purposes of work”, thereby distinguishing in my mind the purpose and the place. These days “work” is very often used to designate the place. Technically, that might be a bit lax, but it is what people say: “I’m going to work”. They do not mean, “I’m going to put in a good day’s effort”; they mean, “I’m going to my place of work”. The Minister may say that “for use at work” implies “purpose”, but one might take something to use at a place where there is no legitimate reason for using it. I beg to move—and I wish Hansard could record the look on the Minister’s face.
Earl Howe
My Lords, as the noble Baroness explained, these amendments address the defences available if someone is charged with an offence of possessing a corrosive substance in a public place. As I understand her, these amendments are intended to probe what would constitute lawful authority to be in possession of a corrosive substance in a public place. She then went on to comment on the phrase “for use at work”.
On the lawful authority issue, let me give your Lordships one example. Under the Poisons Act 1972 there is a licensing regime for regulated substances such that a Home Office licence is required to import, acquire, possess or use a regulated substance. Both nitric acid at above 3% concentration and sulfuric acid at above 15% concentration are regulated substances. Therefore, there may be circumstances where a Home Office licence holder has purchased a corrosive product containing one of these substances and is transporting it from A to B. This would be a scenario where the defence of lawful authority might come into play.
However, for the majority of cases, a person would need to rely on the defence of having good reason—unless, of course, they were a tradesperson and had purchased the corrosive for use at work. This brings me to Amendment 31, about how we have framed the defence for tradespeople and businesses. The reference to “for use at work” replicates the terminology used in existing knife legislation. The existing defences in relation to the possession of an offensive weapon in a public place are well understood by the police and various trades and businesses, and we are not aware of any issues in the operation of them in relation to the possession of knives.
While I can see the intention behind the amendment, I will need to think about what the noble Baroness has said—but I am not convinced that it is necessary or in practice achieves any significantly different result. I am also concerned that having a different defence in place for possession of corrosives, compared with that for knives, would or could cause confusion and unnecessarily complicate the law. So I hope that, at least for now, I have been able to provide sufficient clarification to persuade the noble Baroness to withdraw these amendments—although, as I have said, I promise that I will read carefully in Hansard what she said.
Baroness Hamwee
My Lords, I am grateful for that. The approach to the wording of legislation has been updated quite a lot recently. That was partly in my mind when I raised the point about “at work”—that one wants legislation to be read as easily as possible, using words as they are normally understood. I understand, of course, a resistance to distinctions between offences relating to corrosives and offences relating to knives. That is not how it was dealt with in the amendment in the name of the noble Lord, Lord Kennedy, and in our amendment to it on shop workers. That does not mean that you cannot amend the earlier legislation.
Regarding licensing under the Poisons Act, it seems that one would have a good reason and would not have to rely on the lawful authority defence. I believe that we are going to look at the Poisons Act again—it has been brought up several times. Certainly for the moment I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
I advise the Committee that if this amendment is agreed to, I cannot call Amendment 33.
Baroness Hamwee
My Lords, the noble Lord, Lord Lucas, is in the same territory as my noble friend and I. Like him, we seek to know how one objectively defines “corrosive substance”. His amendment asks what happens if the skin is particularly sensitive. I am not sure that there is such a thing as the “average human hand”, which he refers to in his amendment. I suspect that sensitivity may depend on age—whether one is young or old could affect vulnerability—as well as all sorts of other matters.
Our amendment proposes two points. The first refers to the testing method. That would not help the point, with which I have a great deal of sympathy, about knowing whether a substance falls within the definition but it enables us to ask about the status of the testing kits. The noble Earl has said that work on them is well under way. Can he tell us any more about them? Are they intended to work—as I understand it—like a breathalyser? It is enough to get you taken off for a second and different test, but does it start with a roadside test? As with a breathalyser, it may look as if you have failed it. Again, this is as I understand it; I do not have personal experience of going down to a police station and giving a blood test or a mouth-breath test. The point is about the process.
My second question is about the definition of the substance as one capable of burning human skin. Our amendment refers to eyes, since a lot of awful acid attacks have involved throwing acid into someone’s eyes. Are eyes “skin” for this purpose? We simply want to be sure that we have covered the ground here.
Lord Tunnicliffe
My Lords, perhaps I may speak briefly on this rather macabre amendment. First, I am not sure who the testing is to be done on. I cannot see many volunteers being willing to be corroded. My second and more substantive point is that I cannot see why the definition is required because, as I read the Bill—not an easy Bill to read, as we have discovered today—a corrosive substance is de facto defined by Schedule 1. I would have thought it much more satisfactory to retain the concept of a schedule, which can be altered by order, than to have this rather frightening test.
Baroness Hamwee
Before the noble Lord responds, first, will there be an opportunity for Parliament to consider the arrangements for testing when they are pretty much complete? I am sure it will be of interest. Secondly, are skin and eyes similarly sensitive? Or do we risk not outlawing a substance that might damage the eyes but would not damage the skin?
Earl Howe
In answer to the second question, my understanding—on advice—is no. A substance capable of burning the skin by corrosion would also be capable of doing severe damage to the eye, and the other way round. We do not think we are excluding any substance by accident in defining corrosive substances in this way. On the noble Baroness’s first question, as I understand it, the approval of the testing kit will not be subject to any formal parliamentary procedure, but I am sure the noble Baroness is capable of finding ways to tease out relevant information from the Home Office at the appropriate time.
Baroness Hamwee
My Lords, my noble friend and I support the noble Lord, Lord Ramsbotham, particularly on the question of the clause standing part. I am conscious of progress in the Chamber, so I will not say as much as I might otherwise have done. It looks like some negotiations are going on. We have a number of other amendments to these clauses as well. In addition to supporting what the noble Lord has said, I want to make clear our implacable opposition to mandatory sentences—in this case custodial ones. Judicial discretion is very important and precious in our system.
Clause 8(4) is a get-out clause, referring to having regard to the duty under the 1933 Act to have regard for the welfare of the child. I do not think this works. It was obviously a response to representations, but it applies only to children, not young adults, and seems to be a nod to that well-established provision without changing anything that surrounds it. I also have a question about the particular circumstances in Clause 8(2). I had a look at the sentencing guidelines yesterday. If that phrase originates from those guidelines then subsection (2) is actually an inversion of them. They require the court to look at the particular circumstances, but Clause 8(2) is the reverse: it is an “unless” provision. Finally, Amendment 37 deals with the appeals subsection. We have added a reference to the criteria in Clause 8(2). I am not sure whether this is appropriate technically, but perhaps we could have an explanation as to how the appeal takes into account the points made in that subsection.
Baroness Meacher (CB)
My Lords, I support these amendments tabled by the noble Lords, Lord Ramsbotham and Lord Paddick, and the noble Baroness, Lady Hamwee, and the clause stand part Motion spoken to so ably by the noble Lord, Lord Paddick. The noble Lords made the case very strongly against short-term prison sentences. I want to add my voice to emphasise very strongly just how unhelpful these short-term sentences are, particularly to the very vulnerable young people who are most likely to be caught up in these offensive weapons allegations or crimes. Apart from doing nothing for those individuals, short-term sentences do absolutely nothing for society as a whole. If we do not prevent these young people committing crimes in the future, our society will be all the worse off.
Scotland has shown the way. The removal of judgment in Scotland has been proven to be more cost effective and positive when responding to people with drug and alcohol addiction and other problems often associated with the carrying of knives or corrosive substances. I believe huge proportions of these young people have drug problems. As others have mentioned, the Ministry of Justice has already produced its own evidence of the ineffectiveness of short-term imprisonment. Perhaps the Minister can explain why we are adding to these short-term sentences in this Bill.
I want to draw the Minister’s attention to the radical Checkpoint deferred prosecution scheme in Durham, run by Chief Constable Mike Barton, and very much supported by his police and crime commissioner, Ron Hogg. Checkpoint is a multi-agency initiative which aims to reduce the number of victims of crime by reducing reoffending. This is what this should all be about. The scheme targets low and medium-level offenders—it is not just for people right at the bottom—at the earliest stage of the criminal justice process and offers them a suspended prosecution. It encourages them to engage in services designed to address their problems instead of receiving a caution or going to court, which does not seem to have anything to do with where these kids or young people are coming from. Checkpoint is evaluated by Cambridge University. This is very important because the evidence on this is really very thorough and reliable.
If this amendment were to be accepted by the Government, the objective would be for the Checkpoint policy, or something like it, to be applied to children and young people who are found in possession of an offensive weapon. I know very well how utterly appalling these corrosive substances are. I happen to know a young, beautiful girl whose face has been utterly destroyed by an acid attack. The poor girl has had endless operations and she will not be the beautiful person that she was, although she will be a beautiful person inside and that is what really matters. Nevertheless, I want people to know that I really understand that these are shocking and horrible crimes. The most important thing that we can do is to cut them down, reduce them and, ideally, eliminate them. Anything that somehow does not achieve that is an utter failure, so I feel very strongly about it because we have to do something that is effective.
Checkpoint shows that it is the threat of punishment, rather than the severity of a punishment, that is cost-effective and, most importantly, effective. It argues in favour of taking a whole-person-centred approach to understand the causes of their offending and ensure that those people receive appropriate interventions to address the problems of drug dependence, debt issues or homelessness—a whole range of problems that these young, very vulnerable people face. Indeed, its figures from a random control trial—and I emphasise that it is a random control trial, not just any old tin-pot kind of study—show that reoffending is reduced by 13% if we do not send these people to custody but instead try to get them involved in help for their problems.
Its study of young offenders who have committed crimes on more than five occasions within a year is very important. You might think that these are hopeless cases and that there is no point in doing anything. This study looks at the traumatic experiences during childhood that so many of those repeat offenders have experienced. Almost all have been exposed to violence, physical harm or danger, parental offending or admissions to A&E due to physical harm or trauma. They have frequently exhibited violent behaviour or problems in school and have been excluded.
We have to ask ourselves about the effect of putting those young, very vulnerable, damaged children into custody for just another dose of punishment. They obviously need a great deal of therapeutic help and support to begin to recover from their childhood experiences. Durham Constabulary, West Midlands Police and other police services are, in my view, leading the way in exploring policies which will benefit not only the vulnerable but society as a whole by reducing reoffending and will also save vast police and prison resources, but that is not the point. This is about reducing these terrible crimes and helping the vulnerable.
I hope this legislation can be amended to ensure that it works with the grain of new, evidence-based criminal justice policy. It is interesting that police services are taking the lead in this crucial field. Of course, the police have their street-level experience; I always have great regard for the noble Lord, Lord Paddick, for this reason—he knows what goes on on the street. They are saying we should not send these people to prison because they see them coming round again and again. I take this very seriously; I think we all should. I hope the Minister will discuss with us how best to amend this Bill. I very much look forward to the Minister’s reply.
Migration: International Students
Baroness Hamwee Excerpts(5 years, 10 months ago)
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Baroness Williams of Trafford
I have just explained that in my reply to my noble friend Lord Holmes: we whip this question up although the facts before us belie it. I simply do not believe that a 26% increase in the number of visa applications represents a country struggling.
Baroness Hamwee (LD)
My Lords, the Minister mentioned India. Did she hear the fascinating series of programmes, “As Others See Us”, on Radio 4 last week? A speaker from India asked—it was a rhetorical question—how we expect India to strengthen its ties with Britain without relaxing visa restrictions. He cited the period allowed for post-study work as being too short. He said, “You cannot take from us a free trade agreement without lowering the immigration restrictions which keep us out”. Are the slight extensions to post-study leave adequate to answer that question?
Baroness Williams of Trafford
To answer that question, look at the number of Indian students who are not just applying for but succeeding in getting student visas. How others see us, in terms of how Indian students see us, is as a country which they wish to learn from and study in. I know there is an issue about visa relaxation with India, because I was in Delhi last year, but the figures do not bear that out. Indian students are applying to universities in this country in droves.
Migrant Crossings
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Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank the Minister for repeating the Statement made by her right honourable friend the Home Secretary in the other place earlier today in respect of migrant crossings. I join her in sending our best wishes, thoughts and prayers to those injured in the Manchester Victoria station attack on New Year’s Eve. I also join her in paying tribute to the emergency services and other agencies and individuals working in the English Channel in the most distressing and dangerous circumstances. We are very grateful for all the work they do in those difficult situations.
These are serious matters and should be treated as such. Action should be taken as necessary and the Government will have the support of the Opposition in that respect. But some of the language used in the past few days by the Home Office was a little florid, to say the least, when looking at the number of refugees we are talking about. I would prefer to see urgent action taken to deal with the problem that we all can see is there.
Perhaps the Minister could answer a few questions for me. Can she confirm that the UK is bound by the 1951 UN Convention relating to the Status of Refugees and that all agencies of the state coming into contact with refugees have to act in accordance with its provisions? Does she accept that before anyone is deemed not to be a genuine refugee the facts surrounding their case must first be examined fully? On the deployment of the Royal Navy, can she set out for the House what orders are given to those deployed in the English Channel and can she explain how the various agencies are co-ordinating and working together? I think the Statement mentioned Border Force, Immigration Enforcement, the coastguard, the National Crime Agency and the RNLI, along with the various French authorities operating in the English Channel and on mainland France. Can she also tell the House what will be the total cost to the Home Office of the Royal Naval deployment and how that will be funded? Does she have any idea of the cost per person rescued, and how many people smugglers have been prevented and detained? Can she also tell us whether the operations that were taking place in the Mediterranean have now been suspended or reduced? Can she also explain what contingency measures have been put in place so as not to leave a gaping hole in other co-ordinated efforts? I thank the Minister in advance for her response.
Baroness Hamwee (LD)
My Lords, I too thank the noble Baroness for repeating the Statement without pausing for breath after the last subject. Like her and the noble Lord, I am very aware of the situation in Manchester. I am sure that she feels as I do. When you know a place well, as we both know Manchester Victoria station, these things become even more vivid in one’s mind.
This is an awful situation, but relatively small numbers are involved in the context of the international refugee position. I too wonder whether it is appropriate to focus on the recent Channel crossings or attempts to do so and whether, if we were not still in mid-Brexit mode, there would not have been a rather quieter and calmer reaction to the situation. The Statement refers to the NCA taking action. Can the Minister expand on what that action is? It talks about tackling criminal activity and says that trafficking puts lives at risk—as indeed it does—and we were told that one person has been arrested. Was that for a trafficking or smuggling offence? I would be glad for confirmation that we are not talking about immigration detention here.
Of course one agrees with the Home Secretary that getting into a rubber dinghy is not safe, but we would much prefer the “safe and legal routes to sanctuary” formula, which is well known and widely used, rather than the “safe and controlled” formula, which seems to be a newly coined phrase. Finally, the Statement refers to work in countries of origin, which of course we support, but that does not deal with people fleeing persecution or war. The UK has an obligation to consider all asylum claims properly and fairly and to grant asylum to those who are eligible, regardless of how they got here. After all, many certainly do not want to have to escape their own country by these means. Does the noble Baroness agree?
Baroness Williams of Trafford
The noble Lord and the noble Baroness will have to forgive me if I do not answer every single question. As they say, I have leapt from one subject to another.
The noble Lord, Lord Kennedy, asked about the use of language and the UK being bound by the 1951 convention. Yes, of course; we were bound by it before we went into the EU and we will continue to be bound by it when we leave the EU. He is absolutely right that facts must be examined first, which is why we do not make a Statement without knowing the facts. On the Royal Navy and the orders given to its vessels, those are military assets operating for a civilian or non-military purpose and the first rule of any vessel at sea is to protect lives at sea. Lives must be protected and everything else comes after. However, as the Home Secretary said, we do not want vessels to provide an incentive for people to take risky journeys at sea, putting their lives at risk. I understand that the cost of the deployment is £20,000 a day. As regards other operations in the Mediterranean, Spain is experiencing high demand for migrant crossings, as is Greece, and the operations in the Mediterranean continue. If the noble Lord asked me any other questions which I have not answered, I will write to him.
The noble Baroness, Lady Hamwee, asked me about the individual who was arrested and whether they have been charged with anything. As the legal procedure is ongoing, I cannot comment on that, but I will try to get an answer. She also asked about examining all claims. There are provisions in EU legislation and domestic rules to make claims inadmissible but we will fully examine the claims of those for whom we are responsible.
Offensive Weapons Bill
Baroness Hamwee ExcerptsMonday 7th January 2019
(5 years, 10 months ago)
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Baroness Hamwee (LD)
My Lords, returning to the Offensive Weapons Bill, I do not think I have ever had quite so much enthusiasm and encouragement for a speech as I received before the Statement. I hope I do not disappoint.
I start by declaring an interest as a board member for the charity Safer London, which works with young people to prevent entry into crime and assist exit from crime. I agree with much of what has been said this afternoon, including thanks to the Library for its excellent briefing.
A month or so ago, we had a debate in this House on serious violence, which followed seamlessly from a debate on schools: the issue of school exclusions—one of the results of a focus on attainment, one might say—was one of the issues that cropped up again in the serious violence debate. The ideas that we shared during that debate on cross-cutting issues, a cross-sectoral approach and a public health approach are in my view more likely to be fruitful than much of what will come out of the debate over the weeks and months—who knows?—on this legislation. The witnesses to the Public Bill Committee in the Commons also applied the language of health to addressing violence. Rob Owen of the St Giles Trust talked about intensive care and similar points have been made during this debate. The noble Lord, Lord Tunnicliffe, referred to early intervention; others have made the same point.
I could sum up the position of these Benches, as set out in the speech by my noble friend Lord Paddick, as “underwhelmed”. Yet again, we are in danger of thinking that legislation is the answer, even when we have adequate legislation in place and—as pointed out by the noble Baroness, Lady Newlove, and my noble friend Lord Storey—of not addressing the symptoms of the problem. I am one of those who has my keys in my hand when feeling insecure at night.
I start, as the noble Lord, Lord Ramsbotham, did, at the end, as it were—on sentencing, especially the sentencing of children and young people and on short sentences. I say “at the end”, but for many offenders a sentence of imprisonment is actually the end of the beginning; it amounts to an induction course in crime. The House will be well aware of the opposition of these Benches to mandatory sentences—an issue that we addressed during the Counter-Terrorism and Border Security Bill running concurrently with this Bill.
Anne Longfield, the Children’s Commissioner, was one of those who made that point as a witness to the Public Bill Committee. She said:
“I know that when we criminalise children there is one path. We know that over the last two or three years, there has been a doubling of children, under 18, who are in prison because of knife crime. Once they are in there, we know that 68% reoffend, so there is one route. My position is firmly on preventing that from happening, and using that as a trigger”.—[Official Report, Commons, Offensive Weapons Bill Committee, 19/7/18; col. 86.]
Indeed.
We might take a slightly different view if mandatory sentences, as they currently apply and are proposed in the Bill, were not custodial. I do not apologise for repeating the observation of the Chief Inspector of Prisons that there is not a single custodial establishment in England and Wales that is safe to hold children and young people. I had taken heart from the Justice Secretary’s apparent opposition to short prison sentences but, as so often, the quiet, thoughtful approach is drowned out by a more simplistic knee-jerk reaction so that it can be said, “The Government are doing something. They’re sending a message”.
I am grateful for the briefings from the Prison Reform Trust and the Standing Committee for Youth Justice. We are reminded that by removing judicial discretion, the proposals work against the guidelines of the Sentencing Council. They acknowledge the importance of considering the individual child and his circumstances in a way that legislation inevitably cannot.
Does a custodial sentence act as a deterrent? There does not seem to be evidence of that, given the rising numbers of children convicted of relevant offences, many of whom feel the need to provide their own protection—or what they see as protection. I was horrified to read of children now carrying acid for protection as well as knives.
I would have thought that the chances of being caught were more in a potential offender’s mind, so it is inevitable that we should refer to police resources, as the noble Lord, Lord Bilimoria, did. I myself would much rather see taxpayers’ money spent on local policing and diverting children—both under-18s and those who are a few years older, a point made by the noble Earl, Lord Listowel—away from the formal youth justice system rather than on expensive custody, which is ineffective in terms of diversion from crime but too effective in consolidation towards crime.
The Bill extends the legislation on knives and introduces provisions on corrosive products or substances—we might be debating those terms—although, as my noble friend tells the House, this may not be new after all. I am of an age where my tendency is to hark back to the old days, and I include the Prevention of Crime Act 1953 in that. I am sure we will be reminded that the police and the CPS will apply both common sense and the well-known tests to, “My mum asked me to take the drain cleaner down to my auntie because she’s desperate and she’s got a houseful for Christmas”, but we should not be having to think about going there.
I have to say that there is much more to consider in these clauses than I had expected. The psychology of the choice of a weapon is interesting: we learn that there are more male victims of acid attacks in London than female. However, what is not in the Bill? How do we take advantage of the teachable or reachable moment that is at the heart of the public health approach? On corrosive substances, the House will benefit from the experience of noble Lords, including the noble Lord, Lord Bethell, and the noble Baroness, Lady Eaton.
Retailers are central to the Bill, and I look forward to hearing from the Minister about the progress of the discussions to which USDAW has alerted us. It tells us that it has met the Minister and described that as a major step towards dealing with outstanding issues, but I am not clear quite what progress has been made. Perhaps she can assist the House.
Local authorities too are central, as are trading standards, which are a part of local authorities, although more needs to be done. We have heard from the noble Baroness, Lady Couttie, in that connection. That raises issues of resources and specific investigatory powers for trading standards officers.
At this point I have one simple question. As I read it, there has been quite a discussion in the House of Commons of barcodes. Has there been any consideration of labelling of the products in question? That would give information to the purchaser as well as to the seller. Has the Home Office actually met local authorities and trading standards to discuss their practice and the day-to-day issues raised by the noble Lord, Lord Lucas, who I suspect is going to have a lot of amendments at the next stage of the Bill? I would also be interested to know what the position is in the development of roadside test kits, which have been mentioned.
My noble friend Lord Paddick raised the issue of whether the reasonable excuse should be a defence or whether it should preclude an offence in the first place—I think few of us had heard of Section 118 until recently, but it has become a sort of go-to provision. The Joint Committee on Human Rights, of which I am a member, has had correspondence with the Minister for Crime, Safeguarding and Vulnerability about the use of persuasive and evidential burdens, and I suspect we will want to follow that up in Committee. The explanation by the Minister that acids are simply being put on all fours with knives as a weapon is not one that I find wholly persuasive.
On firearms, I admit to having to resist bias in myself against anything that in any way normalises guns and does not tighten gun control. The noble Earl, Lord Shrewsbury, and the noble Duke, the Duke of Montrose, will not be surprised at that rather urban outlook. I have to say that I have often found it quite hard to square the Government’s support for rights defenders when the issues are the ownership or use of firearms; it is not quite the same when the rights in question are those of privacy.
In connection with rights, the noble Lord, Lord Singh, rightly reminded us of the cultural and religious issues that are in play here.
The noble Lord, Lord Robertson, asked what to me were rather necessary and important questions about the paradox at the heart of the removal of provisions advised by the services without including the safeguards suggested by those who have an interest in shooting. I too could not get Dunblane, Hungerford and other events out of my mind in thinking about this.
What is the timetable for the consultation about firearms safety? Why can we not do something now that could be rescinded—I do not know whether there would be a disproportionate cost to individuals and the Government—given the shortage of parliamentary time, of which we are all aware? As urged by the noble Lord, Lord Robathan, we must be objective; I will certainly keep on telling myself that.
Lastly, I turn to victims. However, I am uncomfortable about referring to them in my last paragraph, as it were. I do not want to indicate that support for victims is of the least importance—not only in the context of offensive weapons, of course. One lens through which we should keep looking at the Bill is how it will be perceived by individuals who have been victims. Concern for perpetrators, as mentioned at the start of the debate, and for victims, and sometimes for individuals who are both, are not matters that are mutually exclusive.
Counter-Terrorism and Border Security Bill
Baroness Hamwee Excerpts(5 years, 11 months ago)
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Lord Paddick
My Lords, I am grateful to the Minister for her explanation. What comes across to me in her response to this and other amendments is that there is a degree of transparency and accountability, in that the Independent Reviewer of Terrorism Legislation will look at the Schedule 7 powers and the IPC, presumably, will examine those under Schedule 3. It is all very well for the Government, the independent reviewer or the Investigatory Powers Commissioner to be satisfied that these powers are being used appropriately, but they are not the people who need to be convinced that they are being used fairly: it is the communities—particularly the Muslim community—that need to be convinced. Publishing the religion of people being subjected to these powers is crucial if we are to get the Muslim community to work with us to defeat terrorism.
As I said when I introduced the amendment, people, or groups, can switch almost overnight. For example, the attempted bombings on 21 July 2005 were a carbon copy of those on 7 July, which did not go according to plan. They were supposed to involve four bombs on the Underground, and the copycat attacks on 21 July involved three on the Underground and one on a bus because of what happened on the 7th. That is how quickly the first attack was copy-catted by another group. It is the friends, neighbours and close associates of these lone wolves and groups of friends who will pick up on the changes in their behaviour that show they are moving from being radical to being violent and potentially deadly. It is therefore absolutely essential that we do everything we possibly can to win the trust and confidence of the communities from which these people come.
I am encouraged by the Minister saying that the Home Office statistician will be looking at the issue.
Baroness Hamwee (LD)
The Minister said that the Government will be looking at this with the chief statistician and the police. Can she give a timeframe for that? If she cannot do so now, can she come back to the House before too long with an idea of when we might expect some further information on this work?
Baroness Williams of Trafford
I will come back to the noble Baroness in writing.
Asylum Seekers: Removal
Baroness Hamwee Excerpts(5 years, 11 months ago)
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Baroness Williams of Trafford
I totally agree with the noble Earl that these decisions are incredibly sensitive, in particular when it comes to the things mentioned by the noble Baroness, Lady Smith, such as political activities, sexuality and even religion, which has been mentioned many times in this House. I will be happy to meet the noble Earl. I do not know if I will be able to arrange for him to visit caseworkers, but I will be happy to outline for him the framework in which we make decisions.
Baroness Hamwee (LD)
My Lords, is the Minister confident that the Home Office’s country policy and information notes are always accurate and reliable? I understand that information is taken from a number of sources and that that can include newspapers from the country of origin. However, they may be countries where the regime interferes with press freedom.
Baroness Williams of Trafford
I can assure the noble Baroness that we are mindful of our human rights obligations. Our caseworking decisions go through three lines of scrutiny, and over the past few months we have indeed improved the scrutiny and decision-making processes. I am confident that the system we now have in place is far better and more humane than perhaps is the case with some of the criticisms that have been levelled at the Home Office in the past. The Windrush episode has reminded us carefully about how we should treat people who come to this country.
Counter-Terrorism and Border Security Bill
Baroness Hamwee ExcerptsMonday 3rd December 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 142-I Marshalled list for Report (PDF) - (29 Nov 2018)
Earl Howe
My Lords, I shall also speak to Amendment 25. Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, to which extraterritorial jurisdiction, or ETJ, applies. This means that individuals can be prosecuted in UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here. This will ensure that UK courts are able to prosecute terrorist fighters who travel to or return to the UK having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people in the UK.
In relation to this latter category of radicalisers, Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article, such as a flag, in circumstances which arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. As a result of Clause 2 it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances. As currently drafted, the effect of Clause 6 is that a person could potentially be prosecuted under Section 13 in the UK, having displayed while in another country the flag of a terrorist organisation that is proscribed in the UK but not in that country. This is something about which the Joint Committee on Human Rights has raised concerns, and the noble Baroness, Lady Hamwee, tabled amendments on behalf of the JCHR in Committee which would have removed the Section 13 offence from the ETJ provisions entirely, or alternatively would have limited ETJ in relation to Section 13 to UK nationals and residents only.
These amendments return to issues on which we have had extensive and helpful debates. I have set out very clearly and at some length the Government’s position on why this power is needed, but it is worth reminding ourselves of two key points. First, we have seen modern terrorist groups, such as Daesh, use slick and effective online propaganda, including activity covered by the Section 12 and 13 offences, which has been aimed at radicalising people in the UK, building support for terrorist organisations and ideology, and encouraging terrorist attacks in the name of such organisations. This activity is not currently within the jurisdiction of the UK courts where it occurs in another country, but as we have seen in the Syrian context, it can give rise to a very real and immediate threat within the UK. For this reason it is imperative that we extend ETJ to these offences, and that we do so in an effective and workable way which does not unduly limit the ability of UK courts to deal with serious terrorist activity. This is the effect of Clause 6.
However, I have considered and reflected carefully on the points raised previously by the noble Baroness, Lady Hamwee, on behalf of the JCHR, and by other noble Lords, about the breadth of Clause 6 as currently drafted, and I have recognised the strength of feeling on this issue. While I remain of the view that the safeguards I outlined in Committee will ensure that the power is used in a proportionate way, I accept that this has not provided sufficient assurance to your Lordships. I have therefore concluded that the extension of ETJ to the Section 12 and 13 proscription offences should be limited to cases where the individual is a UK national or resident, in line with the amendment proposed in Committee by the noble Baroness, Lady Hamwee.
Amendments 24 and 25 in my noble friend’s name deliver this. Although the noble Baroness’s earlier amendment focused on Section 13, the same principle arises in relation to Section 12 of the 2000 Act, which criminalises invitations of support for a proscribed organisation, and as a result of Clause 2 will also cover reckless statements of support. The government amendments therefore extend this limitation to both Sections 12 and 13. This will ensure that it will still be possible to prosecute in the UK courts a person who has travelled from the UK to join a terrorist organisation, and who has become involved in propaganda on behalf of the organisation while they are overseas. But it will exclude the type of case about which the noble Baroness has raised concerns, where a foreign national acts in support of an organisation which is not proscribed in his or her country—for example, if a Lebanese national living in Lebanon displays a flag associated with the military wing of Hezbollah or invites support for that wing of the organisation. These amendments will put beyond doubt that such a person will not be liable to be arrested or prosecuted should they subsequently travel to the UK.
I hope that these are welcome amendments and will answer the concerns that have been raised by a number of your Lordships. I beg to move.
Baroness Hamwee (LD)
My Lords, I am indeed very grateful for the Government’s amendments and their consideration of the points that have been made in Committee as well as by the committee, and at previous stages. They are very significant indeed. Amendment 26 is attributed to the Government on the groupings list but I will put that right. It would provide that, in connection with what we dealt with earlier today, the offences under paragraphs (ca) and (cb) will be relevant only where the actions are an offence in the country where they took place.
In Committee the noble and learned Lord, Lord Judge, who was very careful to be neutral about this, cautioned the Committee to take care:
“The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country … there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go”.—[Official Report, 31/10/18; col. 1368.]
The government amendments have indeed dealt with one aspect—the “who”, if I can put it that way—but not with the “what”.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 28 repeats an amendment I proposed in Committee on behalf of the JCHR, which gathered considerable support from the noble Lords, Lord Anderson, Lord Judd and Lord Pannick, and the noble Baroness, Lady Kennedy, as well as my Front Bench and the Labour Front Bench. The noble Lord, Lord Carlile, said that he was,
“not convinced that the Government have got the proportionality of this right”.— [Official Report, 31/10/18, col. 1409.]
That has encouraged me to raise the issue again.
This amendment is in connection with the search and entry provisions. It would provide that, rather than allowing search and entry to assess risk, it would be far more specifically to assess whether the subject of a warrant was in breach of the notification requirements applying to him.
The Minister said that the provision was proportional. The terminology used in Committee included “home visits” and the police “keeping in touch”, which sounds much gentler than a power to enter and search under a warrant. I talked about what the noble Lord, Lord Anderson, called the human element—the impact on an individual’s family—but, as other noble Lords pointed out, the impact is often much wider in such a situation.
We will consider the Prevent policy on the next day of Report and no doubt noble Lords will raise the importance of how a policy is perceived by the community affected. The infringement of the privacy of the individual and of the individual’s family, who I think are at risk of considerable distress, which is part of the Government’s proposals, is not just a matter of a lack of proportion. It also carries a significant risk of damaging, if not destroying, the trust of the community, which in turn impacts on everyone’s security.
I acknowledge that there has to be a warrant. I am sorry if this sounds cynical, but can we be confident that a magistrate will always ask for details of compliance or otherwise with the notification requirements on the part of the subject of a requested warrant? Will a magistrate ignore the police’s wish to go on a fishing expedition, if you like?
The Minister drew a comparison with registered sex offenders. As the noble Lord, Lord Anderson, is here, perhaps I should let him speak for himself if he wishes and intends to do so, having pursued this with Professor Clive Walker. I am looking to see whether he is going to because if not then I am going to quote Professor Walker—I am being told to go ahead. I am grateful to him for pursuing this matter. Professor Walker looked at the comparison with people on the sex offender register and distinguishes this situation from that one because of the additional ways of mitigating the risk where terrorist offenders are concerned. He also made the point that if he had realised what the provisions applying to sex offenders were, he would have been critical then. As he says,
“a bad precedent should not be used as a basis for more bad law … I still argue that it is unwarranted to treat terrorism offenders in this way in comparison to sex offenders because of the different designs now being applied to terrorism offenders … in terms of their periods of endurance and also possibilities of review”.
He refers particularly to the extent of the respective orders—currently scrutiny over identity, residence, travel— and to the fact that the Bill imposes requirements as to mobile phone details, email addresses, vehicles, banks and identification documents. He says:
“If such information is provided, all of which can be checked against external records, should this not reduce the residual risk and so reduce the need for entry in order to check ‘risk’? … If these extra demands do not adequately reduce risk, what is their value?”
That is another way of asking the question that I asked in Committee on whether the notification requirements in themselves were insufficient. If the answer is no, they are sufficient—and I would expect the Government to say that—then what is the justification for this, as I say, potentially damaging provision? I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, I support the amendment for the reasons that the noble Baroness has given. The only additional point that I would make, and I made it in Committee as well, is whether the person to whom the warrant relates being in breach of notification requirements constitutes a sufficient ground for the entry and search of the home of a TPIM subject—among, one must assume, the most dangerous of terrorists or suspected terrorists in this country. It is a little hard, at least for me, to see why it should not be sufficient in relation to the prisoners and those remanded in custody who are dealt with under this part of the Bill.
Baroness Hamwee
My Lords, as I said, two bad laws are twice as bad as one. The Minister said that the experience is that terrorist offenders are likely to be unco-operative when they are asked to host a home visit—and I wonder why they are unco-operative. This seems a very intrusive power. We are talking not only about entering a person’s home but, to take just one of the purposes mentioned by the Minister, assessing their mental health. What is done when that visit, or entry, is made, to undertake that assessment? The power is much broader and deeper than it may appear on the surface. I will not repeat the debate that we had last time but I do not feel that I am any more enlightened or, I have to say, any more persuaded. However, I accept that we are where we are for tonight, and I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, we too support these amendments and recognise the steps that the Government have taken. Perhaps I may put on the record a couple of comments made by the Law Society on this general area. Unfortunately, its briefing arrived too late for us to build on it by way of amendment, but it comments on legally privileged material being retained for use as evidence or for deportation proceedings. It gives the view that:
“Legally privileged material should not be retained for any purpose other than a potentially urgent need to prevent death, injury or a hostile act”.
It also comments on:
“The process by which material can be identified as constituting legally privileged material”,
and asks who is responsible for making the determination, as that is not,
“explicitly clear in the Bill as drafted”.
It continues:
“It is important that this determination is made by a legally qualified person who is capable of accurately assessing whether a given article is subject to legal professional privilege”.
As I said, I thought that it was worth putting those comments on the record.
My noble friend Lord Marks is sorry not to be able to be here this evening and asks that his thanks to the Minister for building on the indication given at the last stage is recorded. He too asks about what he calls an “unacceptable, dodgy solicitor”. I think that any dodgy solicitor is unacceptable—you do not have to fill two criteria. If an unacceptable dodgy solicitor is selected for a second time, he and I assume that the senior officer might give a further objection. My noble friend also asks whether the Government intend to issue a further draft code of practice relating to the considerations that senior officers should take into account when considering making these directions.
Baroness Williams of Trafford
I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—
Baroness Hamwee
(c) the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material.”
Baroness Hamwee
My Lords, the JCHR proposed a number of amendments on the subject of biometrics for the last stage. The Minister gave a long reply, quoting the Biometrics Commissioner’s support for bringing the periods for retention of data for arrest on suspicion of terrorism offences into line with arrests under the Police and Criminal Evidence Act. At that stage, it seemed to me that this did not go to the question of oversight by the commissioner, and I still do not think that has really been dealt with.
I confess that I had to go by way of Beachy Head and along the byways of PACE to arrive at Amendment 30, so I am well prepared for criticisms of the drafting. However, it is intended to ensure that the retention of biometric data for a terrorism offence has consent from the commissioner. I am entirely open to a different way of achieving that end, but I am certain in my own mind that, whatever the basis of arrest, the retention of data should require this consent. I beg to move.
Earl Howe
My Lords, as the noble Baroness, Lady Hamwee, has made clear, this amendment returns to one of the issues raised in the reports on the Bill by the Joint Committee on Human Rights: the rules governing the retention of biometric data in national security cases. I am sorry that the noble Baroness remains unpersuaded by my previous response. I will do my best to be more persuasive today.
Without going over too much ground, it may be helpful if I briefly reiterate that Schedule 2 amends the laws that govern the retention, review and deletion of fingerprints and DNA profiles by the police for national security purposes. The intention of these provisions is to strike a better balance between on the one hand enabling the police to use fingerprints and DNA in an agile and effective way to support terrorism investigations and protect the public, and on the other ensuring that the retention of DNA and fingerprints continues to be proportionate and subject to appropriate safeguards. Schedule 2 delivers this and, importantly, it retains proportionate safeguards, including regular case-by-case review and the robust independent oversight provided by the Biometrics Commissioner.
The noble Baroness’s amendment would amend paragraph 2 of Schedule 2, which harmonises the retention periods for biometric data obtained when an individual is arrested on suspicion of terrorism, but not subsequently charged, under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000. Paragraph 2 does so by providing for biometric data to be retained for an automatic period of three years when an individual is arrested under PACE for a qualifying terrorist offence.
As the noble Baroness is aware, currently an individual arrested under the Terrorism Act 2000 may have their biometric data automatically retained for three years. But the same automatic retention would not be available if the same individual were arrested in relation to the exact same activity under PACE. Rather, in that case, ongoing retention for national security purposes would require the police to make a national security determination with the approval of the Biometrics Commissioner, or would otherwise require the consent of the Biometrics Commissioner under Section 63G of PACE if retention were solely for the prevention or detection of crime generally.
Our position on this is that having two different retention regimes in such cases is quite simply anomalous. The Bill will provide for a more consistent approach to the retention of biometric data for all those arrested on suspicion of terrorism by providing for the same retention period in otherwise identical terrorism cases regardless of the power of arrest used. This is a proportionate and logical change.
The noble Baroness’s amendment would mean that this inconsistency between the two retention regimes would persist. Particularly against the backdrop of the heightened threat picture we face today, I am clear that it is important that the police are not deprived of information that could prove vital to keeping the public safe. That is what underlies a lot of what we seek without removing, as I emphasised earlier, the safeguards that are in place.
As noble Lords would expect, we consulted the Biometrics Commissioner on this provision. He is clear that he supports the measure, and I quoted his words last time. The noble Baroness’s amendment would have the effect not of modifying or improving this aspect of Schedule 2 but of effectively nullifying the provision and preserving the current anomaly. That disparity is not sustainable and I see no good reason for continuing it.
I sense that I have not persuaded the noble Baroness in what I have said, but I hope that she can at least see the logic of the Government’s position and perhaps, on reflection, will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I think we want the same thing, but I confess that I do not understand how the Government have got here. The noble Earl did indeed quote the commissioner last time, but it seemed to me that that was on a different point. Perhaps I may check this. I think he is saying that the oversight through an NSD is equivalent to the oversight applied by PACE. I do not know whether he is able to answer that, but I am finding it difficult to understand how they are in fact exactly equivalent in the way that he is telling the House.
Earl Howe
The strict answer to the question put by the noble Baroness is that the two Acts provide for different kinds of retention regimes, one where it is automatic for three years under certain conditions and the other where the Biometrics Commissioner has to give his permission; namely, under PACE. The point I was making was that that applies in cases which are otherwise identical and that it is simply anomalous to have that difference. The Biometrics Commissioner has actually said that it would be,
“a sensible approach to bring the retention periods for arrest on suspicion of terrorism offences in line”.
If he is relaxed about it, I cannot see that we should not be either.
Baroness Hamwee
I have the Official Report of when the noble Earl quoted that last time, and it seemed to me then that that was about the retention period, not quite about the role of the commissioner. I do not think that we are going to make further progress and at this time of night it would be inappropriate for me to labour the point. It may be my fault for failing to follow the details. As I say, I have had to go by way of Beachy Head to get to the amendment that I put down. I beg leave to withdraw it.
Violent Crime
Baroness Hamwee Excerpts(5 years, 12 months ago)
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Baroness Hamwee (LD)
My Lords, I too thank the noble Lord, Lord Harris, not least for condensing the issues into a 36-word title for the debate. A couple of months ago there was a fight in my street where someone suffered stab injuries. My neighbour was very upset and disbelieving: “In our street in quiet Mortlake?” I was particularly struck by the large number of police officers who were on the scene for many hours. To me that said: “Resources”.
The expression of disbelief is something that one still hears in connection with domestic violence: “It does not happen to anyone we know”. That is sometimes code for “Not in our section of society”. But it does happen. Perhaps domestic violence is a little less prevalent than when I was a member of the board and chair of Refuge, the domestic violence charity. I declare that as an interest, as I do as a current trustee of Safer London, which works to address and prevent the impact of gang and sexual violence, and the exploitation of young people and their families. Both positions have of course informed me.
We are familiar with the number of deaths from domestic violence, which still shocks, and we know that there is far more abuse than is reported. I understand that research by the College of Policing tells us that there is no clear evidence that criminal sanctions reduce reoffending. Indeed, there is a suggestion that punitive sentences are associated with higher rates of reoffending. We know about the financial constraints on refuges and the support that they can offer, but time does not permit me to range right around that subject.
As regards young people, it is blindingly obvious that the causes of violence run very deep and that a siloed approach is inappropriate. Safer London has for several years been providing for the Mayor’s Office for Policing and Crime a gang exit programme. London Gang Exit is now referred to as “LGE” within the organisation because the young people involved resent the term “gang”. “They are our family”, they say. Just think what leads a young person to take that view.
One of the threads running through the issue is exploitation. Earlier this week, I heard Chief Constable Shaun Sawyer, the NPCC lead on modern slavery, talking about county lines and explaining that we should not use that term. It is exploitation. It is also something of a badge of honour among those who apply it. We accept, in the sense of recognising, child sexual exploitation. Similarly, we should refer to child criminal exploitation. I saw CCE used in a paper yesterday; it took me a moment before I realised that it was obviously about grooming. County lines—that form of child criminal exploitation—are almost a matter of fashion, according to Chief Constable Sawyer, and will be superseded by another form of grooming and exploitation. There is a danger of compartmentalising drugs, CSE—I do not want using the acronym to diminish the importance of that issue—CCE, slavery and so on.
Shaun Sawyer also emphasised how much intelligence comes from the local level. Neighbourhood policing provides both intelligence and a sense of security. Local officers, whom local people know and trust, can be passed information about the knife-carriers, when they carry and where they hide weapons. That means more accurate stop and search and taking weapons off the streets.
Statistics and talking about categories can mask the fact that this is all about individuals. Supporting individuals, especially through a health approach, is very resource-intensive and painstaking, but it is worth it. Motivation is important, which is why the process finds a young person who has been injured and is in hospital at his most receptive to the work that can be applied.
I want to share Jane’s story with your Lordships. A Safer London report states:
“Jane was fifteen and living in London, when she was referred to London Gang Exit. She was an active member of a gang and unable to leave … She was considered both a perpetrator and victim of violence … We used creative techniques, so she could visually map out her associations and define those which were healthy or unhealthy. Sessions also covered coping strategies and creative work to boost Jane’s notion of ‘self’, her role within society and within her family … Life remained complex and Jane stayed vulnerable to damaging external pressures. At one stage she was found to be on the verge of committing violent crimes and going missing. At this time, we focused sessions on short term goals to build her confidence and determination; we also examined her considerable achievements and commitment to making positive changes to her life … We worked with Jane’s parents around family relationships and boundaries. The family were also close to being evicted and we were able to provide urgent housing advice, which avoided this happening … At the end of the programme, Jane completed an ‘I am Proud’ board which allowed her to reflect on the journey. These are her words: I am PROUD to be Alive … I am PROUD I notice Fake People in my Circle … I am PROUD NO ONE can Keep Me Down”—
I particularly like that one—
“I AM PROUD TO BE ME”.
The report also makes a shorter reference to a programme of one-to-one and group work to help young men to understand healthy relationships and what consent means. It talks about Charles, aged 15, and states:
“Charles was referred to our service due to concerns around his inappropriate touching of younger females at school. He was subject to a Child Protection Plan due to his own experiences of physical abuse. His behaviour consisted of targeting two vulnerable young women … The girls were frightened to report his behaviour as Charles was older and popular … Charles told us … ‘this programme taught me how important it is to make good decisions in your life and you will be safe all the time’”.
We will all have received a briefing from the Local Government Association. Although the detail it gives is powerful, I doubt that any of us needed persuading of the important role of local authorities and the issue of funding. That is always topical, particularly in the context of today’s economic reports; somebody said that we should have read the previous debate on school funding into this debate. The LGA makes the point, as always, on the need for long-term funding commitments. I add to that the trickle-down effect on NGOs and charities working in these fields. So many chief executives have to spend so much time on cash flows and grant applications. To follow the point from the noble Lord, Lord Hastings, there can be competition among them, rather than co-ordination.
The Minister would not expect uncritical endorsement —and I will not give it—but I want to end on a hopeful and positive note: a 19 year-old’s take on the serious violence strategy. She wrote that,
“early intervention education is key, especially for those who fit into a high-risk category, as young brains are easier to adapt and educate, both positively and negatively … I feel assured that the ideas and funding”,
in the serious violence strategy,
“that have been proposed … are not going to be closed away into a document with the hope that violent crime incidents will become a thing of the past … It is settling for myself as a young person to see a strategy that will be actively applied in order to promote a less violent future”.
Let us not fail her.
Crime (Overseas Production Orders) Bill [HL]
Baroness Hamwee ExcerptsTuesday 20th November 2018
(6 years ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I want to raise two areas of questioning of which, I hope, the Minister has had notice. We have had correspondence and I am grateful to her and her officials, but I am keen to get the explanation in Hansard. Clause 1 provides for the making of overseas production orders, and Clause 1(8) provides for a treaty to be laid before Parliament under the Constitutional Reform and Governance Act 2010. I tabled an amendment covering this question on Report and I regret that I am still not entirely clear about the answer. Can we not provide for a reference to ratification on the face of the Bill? It would deal with Parliament’s involvement in the process and I think it is important that legislation is as clear as possible to the reader.
The Act provides for a two-stage process. One is the laying of a treaty; the other is Parliament’s role in ratifying it—or perhaps not ratifying it. I have asked the Home Office what the problem would be. I understand from the Minister that there may be operational timing reasons why one would want to designate an agreement after it had been laid before Parliament but before it has been ratified, and the Minister has also told me in correspondence that an agreement that came into force on ratification would impose that obligation immediately, which would be a problem. I am a little puzzled as to why one cannot provide, in the parliamentary process, either that a designated agreement comes into force at a future date linked to the designation, or that the designation is linked to ratification. I would be grateful if she could help me and the House as to the need not to include a reference to the second stage of the process.
The importance of this is that Clause 1 deals with designation of an agreement under Section 52 of the Investigatory Powers Act. That section relates to the interception of a communication in the course of transmission, as I understand it, not to other data. My noble friend Lord Paddick raised this in the debate and we would be grateful if the Minister would explain how all data is covered, not just data intercepted in the course of transmission. That phrase implies data intercepted before or at the same time as it reaches the recipient, so would it not include itemised phone bills, geolocation data and internet connection records?
Communication, the word used in the relevant section, is defined in the Investigatory Powers Act and the term “communications data” is also defined: they are different. The great importance of this is that at the previous stage your Lordships inserted a requirement for death penalty assurances—or to put it the other way around and more accurately, that an agreement should not be designated without death penalty assurances in the case of an agreement where it is possible that a person may receive a death penalty as a result of, or in connection with, the provision of data under that agreement. I hope that those two separate but closely linked areas of questioning are clear and I beg to move.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Baroness for her explanation of her amendment. The powers in the Crime (Overseas Production Orders) Bill will work only if a relevant international agreement is in place. The effect of the amendment would be that an international treaty could not be designated under the Bill until it had been fully ratified. Ratification is the process by which relevant parties signal their consent to be bound by a treaty, contract or agreement. I hope I will be able to reassure the noble Baroness as to why it is not needed, and that she might be persuaded to withdraw it.
There may be operational reasons why a Government would want to designate an agreement under the Bill before the process to ratify a relevant treaty is finalised. If we had to wait until the agreement had been ratified before making the regulations that designate the agreement under the Bill, and the agreement came into force on ratification, there would be a delay, as the noble Baroness said, in respect of our use of the agreement. We may want the regulations to be in place when the agreement comes into force so that officers in the UK can immediately start applying for overseas production orders. I am concerned that we should not unnecessarily delay their access to vital evidence. I make it clear that designating the agreement under the Bill prior to ratification will not permit applications to be made until such time as the agreement has been ratified and is in force.
I will give a practical example of this. An example of an operational reason to designate an agreement under the Investigatory Powers Act prior to ratification arises in the context of the development of an agreement with the US. One of the core obligations of the agreement with the US will be the removal of any legal barriers that would prevent a UK company complying with a request from the US. The IP Act itself contains one of those barriers, in that it criminalises the interception of communications, save for where a person has lawful authority.
However, Section 52 of that Act provides lawful authority to carry out interception where it is at the request of,
“the competent authorities of a country or territory outside the United Kingdom”,
and the request has been made pursuant to an agreement which has been designated by regulations under that section. In effect, the designation of the agreement under Section 52 will be the removal of the legal barrier, thereby fulfilling our obligation. As the US agreement will come into force immediately upon ratification, regulations under Section 52 must have been made and laid before that point so that we can fulfil our obligations from the moment the agreement enters into force.
I stress that making regulations designating an agreement prior to it being ratified would not permit UK communications service providers to intercept communications in response to requests by foreign law enforcement authorities. Such activity would be permitted only once those regulations and the agreement came into force, which would happen on or immediately after ratification. This in no way changes or undermines the process of ratification or the scrutiny that Parliament is afforded of a treaty. Indeed, if Parliament resolved that the treaty should not be ratified, what is provided for in any agreement and the powers in the Bill could not be used. I hope that the noble Baroness is reassured on that point.
The noble Baroness’s second point was about how Section 52 of the IP Act covers all data, not just data intercepted in the course of transmission. As I said on Report, Section 52 can authorise obtaining stored as well as intercepted communications. Section 52 should be read alongside Section 4 of the IP Act, which outlines the definition of “interception” and related terms. According to that section, “interception” refers to the interception of a communication,
“in the course of its transmission by means of a public telecommunication system or a public postal service”.
A person intercepts a communication in the course of its transmission if the effect is to access any content of the communication “at a relevant time”. It is the meaning of “relevant time” that is significant. It can mean a time when the communication is transmitted but it can also mean, as Section 4(4) of the IP Act says,
“any time when the communication is stored in or by the system (whether before or after its transmission)”.
Baroness Hamwee
My Lords, obviously I am not going to challenge the Minister on that but I will comment, if I may, on her latter point. The distinction between the definitions of communication, which is the subject of Section 52, and communications with data, which is defined as data held or obtained, including what relates to the provision of the service or is,
“logically associated with a communication”,
as it relates to the use of a telecommunication service, still defeats me, I am afraid. Why is it worded in that way? I see in the definitions the distinctions between communication and communications data, and the Minister referred to “the relevant time”. On the parliamentary process, there are two parts to it: laying regulations, which is the Executive’s job, and ratification, which is Parliament’s task. I was seeking to be quite clear that those are both covered.
It also baffles me that there cannot be conditional arrangements, with the laying of regulations which are conditional on designation or designation which is conditional upon the whole process under the Constitutional Reform and Governance Act. It may be that American practice would not allow it, although I am sure that I have dealt with American arrangements which are conditional. But because of the importance of the death penalty issue, I felt it was important to air these to the best of my ability, which may not be as extensive as it might have been. At least it will all be there in Hansard for others who may be exercised to satisfy themselves. I beg leave to withdraw the amendment.