Modern Slavery Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 23rd February 2015 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I had my name to an amendment moved in Committee by the noble and learned Baroness, Lady Butler-Sloss—I was about to say my noble and learned friend. That amendment is tabled again today and is much simpler: in order to avoid the need for primary legislation, it is for regulations to be made. Like others, I want the national referral mechanism to be on a statutory basis, and I welcome the government amendments which we will debate on Wednesday—although I have one or two questions about them.

I would be worried about including the new clause proposed by the noble Lord, Lord Warner. To establish it now or “as soon as practicable”—I am not sure what that means in a statutory context, but let us say that it is pretty soon; it is not waiting for the end of a trial, as I interpret it—must, as trials of the new procedures proposed by Jeremy Oppenheim are to be undertaken, risk establishing one statutory basis and then changing it by regulation. Some of the language in the amendment seems to me problematic. The noble Lord will correct me if I am wrong, but I do not think that the term,

“trafficked, enslaved or exploited persons”,

is defined in the same way as victims of,

“slavery and human trafficking offences”,

which is what we have in Clause 41, where the general functions of the commissioner are set out.

I have confidence in what we are being told by the Government about moving to a statutory basis. Without trying to analyse every dot and comma, I would worry that there might be hostages to fortune in the new clause which would require primary legislation to change, rather than the opportunity to rely on regulations, which is what the Government propose.

[Baroness Butler-Sloss]

As Amendment 48 is in my name, I have perhaps been a little slow in getting to my feet. I am content with what the Government propose in principle and therefore did not feel it necessary to propose my amendment with any particular enthusiasm, but I am concerned that at some stage there should be a statutory basis for the NRM. I do not believe that it is appropriate for the power to be other than to enable the Government to make such a statutory regime without going through primary legislation. I entirely support what the noble Baroness, Lady Hamwee, said. I share her concern about Amendment 47, moved by the noble Lord, Lord Warner, because it is so specific. If the trials are effective, the Government may well find that changes are necessary, and because of the way in which Amendment 47 is framed, as the noble Baroness, Lady Hamwee, said, they would probably require further primary legislation. The whole point of what she and I want is to have the statutory process in a way that can be produced by regulation, not further primary legislation. For that purpose, I support my amendment, as far as it goes, and I am not at all happy about Amendment 47.

Modern Slavery Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 23rd February 2015 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have added my name to this amendment, as I did to its predecessor amendment in Committee. Anticipating today’s debate, I had a quick word with the Minister, who helpfully—perhaps he seized on it as a way through today, at any rate—agreed that the noble Baroness, I and others may be let loose in the Home Office in discussions with officials. This is a complex issue. It is right to take considered steps, but steps do indeed have to be considered. The short point, as the noble Baroness said, is that people working in the field—I may say that those I have met are no slouches—argue forcefully for a specific course of action. Given the energy that they put into assisting victims by means of their legal work, I take very serious note of that. I am happy to support the amendment but, more importantly, because this is not something that is going to be solved in a 15-minute debate, to continue the discussion at the Home Office, and I am grateful to my noble friend for that.

I have tabled Amendment 17—I suppose it is allied to this one—about claims in the employment tribunal. Again, I am not seeking a solution today. My amendment, which really is adequate only for the purpose of raising the point, asks the Secretary of States to consult the appropriate people with regard to access to the tribunal by victims of modern slavery. I mention the national minimum wage in particular. If there is an employment contract, a claim must be brought within three months and is limited to two years’ arrears. I mentioned the two-year limit to a colleague in this House and said I was concerned that victims of slavery were prejudiced by it. He said, “Well, if we extended it beyond two years, other groups would want it to be opened up”. I thought that if it was not immediately obvious to someone steeped in what the House is doing that a victim of slavery, servitude or forced labour was unlikely to have been able to have access to an employment tribunal until that situation had finished, then this was something that had to be dealt with in detail and very carefully.

There are new regulations, which have just come into force, providing that from July the two-year restriction will apply. I understand that the Deduction from Wages (Limitation) Regulations were introduced to answer concerns expressed by business over unexpected and unquantified holiday pay claims; they were not aimed at victims of trafficking. Clearly they will affect victims of trafficking, but those victims are not mentioned in the impact assessment that BIS provided for the regulations.

There are other issues, too: for example, there is the family worker exemption, where someone treated as a member of a family is not entitled to the national minimum wage or to any payment at all, but the Court of Appeal—I have had an example of this—has regarded someone who worked 14 hours a day and slept on the dining room floor as being treated as a member of the family. That would have been an overseas domestic worker, and of course I am aware of the review of overseas domestic worker visas, but there are particular issues around the national minimum wage that we must not lose when we are dealing with other parts of this jigsaw.

I appreciate that there are a lot of stakeholders with a great range of interests in employment rights and the danger of unintended consequences is high, which is why I framed my amendment as I did. However, the victims of modern slavery have themselves suffered unintended consequences. All the Minister needs to do to my Amendment 17 is to say yes.

[Baroness Butler-Sloss (CB)]

My Lords, I have also put my name to this amendment—as with the two noble Baronesses who have spoken, for the purpose of further consideration, not for the purpose of being part of the Bill at the moment.

There are two points that I want to make. The first is that there is clearly a gap. The second is that this would give an opportunity to victims who cannot have the satisfaction of the trafficker prosecuted—or indeed if the trafficker or slave owner is actually acquitted—none the less to take civil proceedings under a different and less onerous standard of care. The criminal law, as I am sure everyone in this House knows, requires the jury or the magistrate to be satisfied so as to be sure, but in the civil courts—the High Court, the county courts or the small claims courts—it is sufficient to have the balance of probabilities. So it gives an added opportunity to those who have suffered to get some redress, even if it does not go through the criminal courts. It is for that reason that we seek the opportunity for the Government to have a look at this to see whether something can be done at a later stage.

Modern Slavery Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Wednesday 10th December 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, my Amendment 96 is in this group. I start by saying that I entirely support the idea of the previous speakers that we should have a statutory national referral mechanism, although perhaps with more felicitous wording, as the noble Lord, Lord Warner, has just suggested.

My proposal is much more modest. The reason for it is this. At the moment we have a very poor double system. There is the UKHTC in Birmingham, which provides, as we have heard, an 80% yes rate to victims, as opposed to the UKVI, which says that only 20% get through. Clearly, that is unacceptable. We also have two reviews from Jeremy Oppenheim which, in my view, are absolutely excellent. As I understand it, the Government have agreed in principle to the fundamental and radical changes that the second, final review has asked for. However, it seems to me that there needs to be some time for consultation, for arranging to get these panels around the country and for arranging how, in fact, a new, better described NRM should work.

My proposal is that the Secretary of State should have the power to make regulations to establish this statutory committee, leaving it to the Home Office to work it out. However, in order to keep them up to the mark, the Secretary of State must report to Parliament within 12 months of the Bill becoming law, in order to say that they will actually do it. At the end of the day, we undoubtedly need a statutory system. But I believe that we need some leeway to work out how it should be. That is why my amendments, in my view, are very modest.

If I may respectfully say so, it would be very unwise of the Government not to listen to this. We have the two reviews of the NRM and we have what the Joint Committee has said, which has been set out so well by the noble Lord, Lord Warner—of course, I was a member of the committee. I totally support the proposals of our Select Committee and of the two reviews. All I am saying is that the Government should have a bit of time to think it over, but not so much time that the matter goes into what is sometimes called the long grass, because this really has to come. The current situation cannot go on for much longer because it is so patently wrong. That has been set out very clearly in the two reviews of the national referral mechanism.

I hope that, at the least, the Government will accept my amendment. I would have no objection to the Government accepting either of the other amendments that have come forward. However, I have no doubt that, one way or another, within the next 12 to 18 months, we will need to have a statutory mechanism for dealing with victim identification and support.

[Baroness Hamwee (LD)]

My Lords, I added my name to the noble and learned Baroness’s amendment for all the reasons that she has given. Never say never; in fact, let us say, “Let’s get on with it”—but let us get on with it in an appropriate way, which must include consultation. Jeremy Oppenheim’s review made very clear the lack of understanding of processes and the variability in standards across the mechanism. I found myself thinking, “Well, no wonder, because it is such a loose process that it is quite difficult to get to grips with”. When I first heard of it, a few years ago, it took me some time to understand just what this was about, given that it is so lacking in obvious governance arrangements and so in need of something against which one could appeal if one was dissatisfied with an outcome.

The two paragraphs—there may be more—of the NRM review that refer to the possibility of a statutory basis do not actually put it out of the question. Paragraph 8.2.14 says that,

“we believe strongly that to put the National Referral Mechanism on a statutory footing now would not guarantee”,

remedying the flawed system. At paragraph 8.3.1, it says:

“Although there is much support for … a statutory footing or providing a right of appeal, these may not be necessary if we have a well governed National Referral Mechanism”.

The prospect is certainly not dismissed by the reviewer.

Modern Slavery Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Wednesday 3rd December 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I agree in principle with what lies behind the amendments but I would like to take up what the noble and learned Lord, Lord Mackay of Clashfern, has said. I am no civil lawyer but I believe that these are what are called in civil law torts; that is to say, civil offences. There is at least a very real possibility that they are covered by existing civil law. If they are so covered, there is no need for these amendments. I am afraid that I have not done any research on it, as I have not put forward an amendment, but some research needs to be done as to what is already covered before we ask the Government to accept these amendments.

[Baroness Hamwee]

My Lords, if I may respond, the point has been brought to us by several lawyers, both members of the Bar and solicitors, who are concerned that the remedies available are not adequate. The noble Baroness and I ought to ask the two noble and learned Lords if they would like to conduct a seminar before Report for those who have been briefing us.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I support the amendment of the noble Lord, Lord Warner. As a member of the commission, I thought originally that the Government putting in the word “independent” was sufficient. I have to say that I have been reflecting on that, though. I have listened to what the noble Lord, Lord Warner, and the noble Baroness, Lady Royall, have said about this, and I have gone back to what was said by our Select Committee. The noble Baroness has set out many of the points that were made under Part 4 of our report, particularly in paragraphs 146 and 147. There was one quotation she did not make, though, which was from the Independent Police Complaints Commission. It stresses the importance to the commissioner’s independence of the freedom to appoint staff, saying:

“The perception of that independence, if not its reality, may be affected by its statutory closeness to the department. Unlike the Prisons Inspectorate or the IPCC (or indeed the Victims Commissioner)”—

really a very important part—

“the Anti Slavery Commissioner … will be unable to engage his or her own staff, or be located outside the department. He or she will therefore be relying on negotiating the right number and expertise of departmental civil servants, whose careers and ultimate accountability lie within the department. In my view, this is unfortunate, as it does not provide the Commissioner with any visible separation from the department”.

In our recommendation, we point out that failing to have sufficient protection for the commissioner’s independence in the long run will undermine the commissioner’s credibility and capacity to establish relationships based on trust with NGOs and other stakeholder groups, whose role in combating modern slavery is well recognised.

On Monday I made a point to the Minister about perception and the enormous importance of the Bill being seen as an iconic Bill that will lead not just in this country and Europe but across the world. I do not doubt the integrity of Kevin Hyland and have great respect for him, but the anti-slavery commissioner must have the ability to speak independently and a group of staff on whom he can rely to be responsible to him, rather than to the Home Office. If he does not have that, it will have a real impact, I regret to say, on the ability and willingness of NGOs to want to deal properly with the anti-slavery commissioner. This is a very important point, and the more I have thought about it, particularly listening to the two speeches that the Committee has just heard, the more I think that the Minister should take this matter away and reflect upon it. To have entirely Home Office staff appointed by the Home Office will not look good to NGOs.

[Baroness Hamwee]

I agree with everything that has been said on that last point. One can imagine that NGOs which the commissioner wishes to consult will find themselves going to Marsham Street to meet him. That seems entirely inappropriate.

I thought the term “friction”, which the noble Baroness used, was very delicate. I have written down other terms which might describe somewhere on the spectrum between tension and conflict. My first block of five amendments in this group seeks to establish a direct relationship between the commissioner and Parliament rather than for the reporting to be permitted by the Home Secretary. It is very important that there should not be or be perceived to be a block between the commissioner and his ability to have reports published and debated by Parliament. I have not sought to take out Clause 41(6), which allows the Secretary of State to direct the omission of material which would be against the interests of national security, might jeopardise safety or prejudice an investigation or prosecution. I am sure we will be told that the Home Secretary does not seek to censor reports from other commissioners and other independent persons, but this is about perception as well as reality.

Amendment 68A would take out the definition of a permitted matter, which follows from what I have just said, and Amendment 68B would allow the commissioner to publish without seeing whether the Secretary of State and the devolved authorities want to exercise other powers. I can see immediately that I have made a mistake here; clearly, I should have retained the reference to subsection (6) but I am sure that noble Lords will understand the general point I am making. Amendment 72A is an extremely clumsy way of trying to find some shorthand for deleting reference to the Secretary of State’s approval, but it all amounts to the same thing.

Modern Slavery Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 1st December 2014 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I should like to make a short point on these amendments. I consider the proposals put forward by the noble Lord, Lord Alton of Liverpool, to be extremely interesting. The idea that the proceeds, if there are any, should go not only to victims but to other organisations is one which, as the noble Lord, Lord Alton, has said, attracted the Home Secretary. I would particularly like to refer to the idea that 25% of proceeds should be distributed to organisations whose purpose is to prevent slavery. One example is that of the Bedfordshire police who spent an enormous amount of time and effort, and a great deal of the police budget, in managing to bring the Connors family to justice. They were the Gypsies who had a large number of men living in appalling accommodation. They had recruited them from homeless units or soup kitchens by offering them money but then treated them in the most appalling way. They eventually took a great many of them to Sweden, trafficking them from the UK to Sweden, where they were living in caravans again and working 18 hours a day on construction sites without receiving a single penny. They in fact came back to England but I am not sure we looked after them very well when they came back. The Bedfordshire police did an extremely good job and it cost them a great portion of their budget. Andrew Selous MP has raised this issue on various occasions and I am happy to raise it again in this House. That is the sort of organisation which ought to be compensated to some extent for the use of its budget—way beyond what is normal—to get a prosecution of a large group of very successful and very wicked traffickers.

Of course, as the noble Lord, Lord Warner, has said, unless you have the money you cannot give it out to anybody else. The Government are to be congratulated on adding criminal lifestyle offences to Clause 7, taking the provisions from the Proceeds of Crime Act. I suggest to the Government that they really ought to look at civil proceedings before the arrest has been made. If the intention is to make an arrest, knowing that the lifestyle of a particular person makes them likely to be a trafficker and therefore likely to be prosecuted, you want to catch the money before he is arrested because otherwise the minute he is arrested he will get it out of the country. Anyone can get money out of the country extremely fast. Therefore, there should be some provision in the civil courts—by which I mean the High Court in particular—that where there is sufficient evidence to be able to make an arrest there should be not a confiscation but a freezing order. Freezing orders are perfectly well known right through the civil courts. If you can get a freezing order a few days or weeks before the actual arrest is made, you may take the trafficker unawares. That is where you get the money to get the pot of the noble Lord, Lord Alton, sufficiently filled. There is no question that this is either the second or third most profitable criminal enterprise in the world. It is worth something in excess of $30 billion, quite a lot of which comes through this country. It does not stay long enough, but if we can get it in the civil courts, it can fill the pot that the noble Lord, Lord Alton, wants.

[Baroness Hamwee (LD)]

My Lords, the amendment in the name of the noble Lord, Lord Alton, is very interesting, particularly, as has been said, as it identifies the work done by organisations and the need for them to be funded to support individuals, as distinct from compensation going directly to an individual. It is complicated work, and in many cases very long term. However, I am sure the noble Lord would agree that nothing this might provide should let the state off the hook of its responsibilities. I am not sure about naming the organisations in regulations, but that is a detail.

As regards the work of the police—the noble Lord mentioned ARIS, and the noble and learned Baroness mentioned the Connors case—I am aware of another case where a different force put together a hugely detailed and complex plan for multi-agencies to be available when they raided premises and rescued a number of individuals. That must have cost an enormous amount of money. It was very important that those who were found in forced labour—I do not think that the case has come to trial yet, but I suspect that it will be forced labour—are received in a sensitive way and helped from the very beginning. That is intrinsically important, and it is important to ensure that they are in position to give the evidence that the police need to be able to proceed and do not disappear into thin air, as sometimes happens in these cases; facing authority, they do not want to have anything to do with it. Therefore, I am very pleased that the noble Lord has brought this to the attention of the House.

I will make one other small point on organisations that do this work. It sometimes seems that the smaller and less formal organisations are the most successful, because they are less likely to be perceived as authority by those whom they seek to help.

On the amendment in the name of the noble Lord, Lord Warner, my view remains the same as when we discussed the matter in the Serious Crime Bill. Of course we should assess and evaluate the impact of the changes made by the Bill—which is still a Bill—and be prepared to make changes. I was worried that it was not sensible to have a consultation that runs in parallel with the introduction of some changes that were being made by the Bill, which might be rather confusing. April 2015 is very close—there will not have been much experience, if any, of the changes included in that Bill; I am not sure when it is likely to be commenced. Therefore, the point about review and assessment and evaluation and consultation in general is good; I am worried about the timing.

Modern Slavery Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 1st December 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, on that last point—on Amendment 24—the noble Baroness and the House will understand how much I support the need to look at an offence of exploitation, because that, after all, was the rationale for my Amendment 100 in the earlier group.

However, if we take the point—which I absolutely do—about fitting in with international legislation, I wonder about the suggestion of a separate offence of trafficking and exploitation, because Article 2 of the directive, which has been referred to, is about trafficking “for” exploitation. So one has to be careful about making sure that we do fit in. However, on the point of whether there should be a separate offence of exploitation, yes, I am absolutely in agreement with that.

Whether, as the noble Baroness says, the list is the one that one would want to end up with—and, I have to say, whether it is something one would want to go to without the opportunity of consultation, which is why I had my amendment in the form that I had it in—I am not sure. The term “on the hoof” was used earlier. I would not quite say that, because we have all been thinking about this for some time, but we have to be quite careful before creating more offences, important as they are.

The issue of the international—the European, at any rate—definitions concerns me greatly. The Government have reassured us that all our international obligations are covered, and I do not doubt for a moment their good faith, but I wonder whether there is a sort of natural, human reluctance to change a provision to something that was “not invented here”. I am sorry if that is cruel.

I would accept, at least as an argument to be explored, being told that because the offences in the Bill repeat offences from earlier legislation, there was case law that we did not want to lose. However, I put that to members of the Bill team and they said that at that point it was not in their thinking.

I wonder, and I ask the Minister, whether there could be a direct reference to Article 2 of the directive, such as to any act proscribed by that article—or, to put it another way, to say that “travel” shall be construed as including the intentional acts punishable under that article. This is drafting on the hoof, but the article deals with harbouring and reception, which are among the items that are causing us all quite a lot of trouble.

I will put a specific example to the Minister. A man who is grooming a young woman arranges to meet her when she is travelling—undertaking travel in the normal sense of the word—and then his mates or customers, whatever you want to call them, happen to be at that meeting point and he passes her on to others to be raped. If he said, “See you at the Station Hotel. Come and have a drink—you get there under your own steam—and we can hang out”—is that arranging travel within Clause 2, the trafficking offence? I am concerned that there may be a distinction between that and, “I’ll pick you up at nine on the corner and we will go—I will drive you—to the Station Hotel and we will have a drink and hang out”. That is the sort of thing that worries me as to whether Clause 2 is sufficiently extensive.

I have Amendment 27 in this group. That would add in, at the end of the first subsection of Clause 3, actions or offences that are planned or in contemplation. This is simply probing. Clause 2(1) covers travel with a view to exploitation. Clause 3 seems to require the commission of an offence, not just having it in view. So if people are transported with a view to their being exploited but, for instance, are found at a port of entry before they have been exploited, is that covered? I think that that is what is meant by Clause 2(1), but I want to be certain and this seemed to be the time to raise the point.

[Baroness Butler-Sloss (CB)]

The noble Baroness, Lady Hamwee, has looked at the directive. I have gone back to the convention of the Council of Europe, which comes before the directive but is couched in very similar terms. I am somewhat surprised that the noble Baroness, Lady Goudie, did not pursue her amendments, because they seem to me to be closer to what is needed. They wanted to put in the phraseology that is in the convention and the directive: “recruitment, transportation, transfer, harbouring or receipt of persons” and so on. Clause 2 is fine so far as it goes, but it does not go quite far enough.

We seem to have an extraordinary English desire for the word “traffic” to mean movement. However, that is not how it is seen across Europe. What worries me about that is that this is going to be a flagship Bill of great importance which may well be followed by countries round Europe and far beyond. However, we may not fall in line with all the conventions from the Palermo Protocol through to the Council of Europe convention and the directive of the European Union and we may want to use the Bill internationally—I hope we may—to persuade other countries to send their offenders to us, or to ask them to send over our offenders.

Serious Crime Bill [HL]

Debate between Baroness Hamwee and Baroness Butler-Sloss

Wednesday 5th November 2014 Lords Chamber

[Baroness Butler-Sloss]

My Lords, had the noble Baroness, Lady Meacher, tabled this amendment I would have put my name to it. I do not want to take up time at Third Reading to repeat what the noble Baroness has said, but I ask the Minister to be in touch with those in the Home Office who will be dealing with the Bill in the other place, and not to disregard what she has said. It is really worth having a further look at this serious matter. There are communities which, as the noble Baroness, Lady Meacher, has said, are different from most of us and where there is a degree of not just influence but power among certain elements of those communities. That leads to this appalling FGM taking place on children in this country. I am also supportive of what the noble Baroness, Lady Smith, said. This is a good part of the Bill and the Government are to be congratulated on it. However, they could do better.

[Baroness Hamwee]

My Lords, the Government have made enormous progress in addressing the legislation so well, to the extent that a Government can in practice respond to FGM. Like others, I encourage the filling of a gap which seems to have been identified. I do not want to say more this afternoon but I wanted to put on record my support for the noble Baroness and my admiration for her keeping going on this issue.

Serious Crime Bill [HL]

Debate between Baroness Hamwee and Baroness Butler-Sloss

Tuesday 28th October 2014 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I intended to put my name to this amendment, which I support. It seems to me that it is more important as a deterrent than probably for prosecutions. Among the various groups that exist—one hopes that they are a really small minority—as the noble Baroness just said, it is very important that the English law is made absolutely clear, as well as the law of Islam. Of course, as the noble Baroness, Lady Tonge, just said, this occurs across other religions. That deterrent has, in other areas, quite a useful effect on culture, and that seems to me the most important part of this. I suspect that there will be very few prosecutions, but what is said in English law may permeate through a number of groups where those who disapprove of this already would then be able to point to the fact that it was also contrary to English law, and those who might want to get involved in this would be deterred from actually supporting it. I, too, support this amendment.

[Baroness Hamwee]

My Lords, towards the end of her speech, the noble Baroness, Lady Meacher, referred to what was troubling me, which is whether we are talking about general encouragement—if I can put it that way—or encouragement to commit a specific offence. Like, I suspect, those in the conversations she had just before coming into the Chamber, I am puzzled by the presentation of the amendment as meaning general encouragement, because I do not read it that way either. With the wording, “to commit an offence”—a specific offence—I thought that the noble Baroness was getting to grips with what is meant by “promotion”, which was the bit that I found difficult to get my head around in terms of its application in the predecessor amendment. However, the noble Baroness told us that it is the reference to “the other or others”—in the plural—which changes that. Bluntly, I do not follow that. I hope that, when she winds up, the noble Baroness will be able to convince me. The offence of FGM might surely and not unusually be committed by more than one person in the case of a single girl. That was certainly how I read this. It is not about committing offences; I read the provision as being about a particular, specific victim.

Of course, I do not take issue with the noble Baroness about the cultural problems and so on. However, I hope that my noble friend will convince the House that this is covered by the Serious Crime Act 2007, with its Part 2 on encouraging or assisting crime. There are extensive provisions in that part. If that applies, then I would not be particularly keen on having a specific offence when it should be covered by the general provisions. It is better that the general should apply to all criminal offences and not have something separate which actually does not amount to anything different. It is the difference that I am looking for.

Serious Crime Bill [HL]

Debate between Baroness Hamwee and Baroness Butler-Sloss

Tuesday 14th October 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I, too, welcome my noble friend to his position. It must have come as quite a facer in the middle of his holiday to be told what a workload he was going to be coming back to.

Before I come to Amendment 4, I would like to say a word about part of the wording of Amendment 1 and indeed Amendment 14—and this point crops up elsewhere. I suspect that we are looking at a bit of modernised style, because we are told to have in mind the concept of the court “thinking”. There are a number of places now where the court “thinks”. We are quite used to words like “considers”. The Minister himself, in introducing the amendment, used the term “believes”, but one might “suppose”, “imagine” or “suspect”—one could go on for quite a long time.

I am a little concerned that we should be cautious about using modernised language without being very clear about what it means, particularly when similar concepts have been introduced in other legislation using different, and perhaps more “old-fashioned”, words. English is a rich language, and its richness covers a lot of subtleties. I just wanted to get that off my chest because I might come back to it on other legislation.

However, most of the debate so far—and we will hear more—is about the effectiveness of the restraint and confiscation regime. I share the outrage of other noble Lords about criminals salting away the proceeds of their crime. We used to discuss it quite a lot in the context of legal aid: that there were recipients of legal aid who were suspected of having a good deal of cash if only one could find it. Now, in the context of the Modern Slavery Bill, as the noble Baroness said, we could do better.

I hesitate to support the amendment going into legislation. The changes which it appears that we are all agreed should be made to the regime will barely have been in force before April 2015, which is the proposed end of the consultation period. Of course we should be assessing and evaluating the impact of the changes made by the Bill—in themselves, in the wider context and continually—to the confiscation regime. We should be prepared to make changes. Is it sensible to have a consultation running in parallel with the introduction of some alterations? Indeed, are we always talking about legislation that needs changing or about practice? I suspect that quite a lot of the problems are in the area of practice.

The noble Lord, Lord Taylor of Holbeach, explained in Committee that a couple of the proposals were, in the Government’s view, unnecessary; I do not want to anticipate what my noble friend will say. Indeed, as the noble Baroness reminded the House, on the recovery of costs, the noble Lord said that the Government would consider capping legal aid rates. However, without for a moment wishing to suggest that the concerns regarding the application of the Modern Slavery Bill are not important—they are immensely important—it seems that without the amendment there is nothing to preclude both consultation about the application of the provisions of that Bill and the bringing forward of more legislation. Conversely, consultation does not solve the issues which have been raised during the passage of the Modern Slavery Bill—which, like other noble Lords, I am very keen to see being effective.

[Baroness Butler-Sloss (CB)]

My Lords, the Proceeds of Crime Act has been inadequately applied. There is no doubt that it could be better dealt with. As far as they go, the Minister’s amendments are to be supported—but they by no means go far enough. As a member of the Joint Committee on the Modern Slavery Bill, I strongly support the speech of the noble Lord, Lord Warner. However, it goes further than that. The Modern Slavery Bill is an important part of getting the proceeds of crime, but all of us in this House want to see criminals dispossessed of their assets. The Proceeds of Crime Act and all of the amendments go further than the Modern Slavery Bill. We do need something.

I am not entirely certain, having listened to the noble Baroness, Lady Hamwee, that we need it in Amendment 4, but we certainly need either this amendment or a very strong undertaking from the Government that—side by side with implementing the government amendments to the Bill—they will consult. If there was a strong commitment to consultation before the Modern Slavery Bill comes in—bearing in mind that it is much broader than the Modern Slavery Bill—I would be content with that. However, if the Government are not going to give a strong commitment, I would find myself supporting Amendment 4.

Children and Families Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 9th December 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I start where my noble friend the Minister started by referring to the series of meetings that he and his colleagues arranged as well as the many papers—I cannot remember what term he used, but it was a lot of paper, which was welcome—that we received during the period starting before the end of Committee. I do not think that I have ever known so many meetings as he was able to arrange, but they have been extremely helpful. Because we are on the first day of another stage of the Bill, I need to declare interests as patron of the Intercountry Adoption Centre and of PAC and as a president of London Councils.

It will not be a surprise that I support and welcome this amendment. I thank the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth of Breckland, for their support in Committee, the officials who struggled with the technicalities of the not-very-easy current provisions and, most of all, the Minister, who dealt with the matter with care and, if I may say so, very effective pragmatism. I know that I pass on the thanks of the British Association for Adoption and Fostering and the Law Commission, both of which were involved, and of the individuals who have campaigned for this change. I have been able to show to the Bill team the very grateful and excited emails that I have had from the lady who has led the campaign. She and those with whom she is in touch can see that they will be able to answer questions about their own heritage, medical issues and indeed their very identity.

I understand the Government’s caution to ensure that the extent of the new rights is appropriate, and the Minister has given us an assurance as to children and grandchildren being the minimum within the prescribed relationships. I hope that he can assure the House that the consultation on this will take place very soon after Royal Assent and that the necessary regulations are expected to follow very speedily so that the anomaly that has been identified can be corrected with the minimum of delay. I thank him and his colleagues very much indeed.

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest at the beginning of the Report stage as a governor of Coram and as a patron of, among others, BAAF, PAC and Childhood First.

I start by saying that I think that this is a good Bill, though it needs some improvements. What is absolutely splendid is that in certain places the Minister has listened with great care and, like the noble Baroness, Lady Hamwee, I am extremely grateful to him, not only for a number of very useful meetings on this particular amendment and indeed others, but also for the outcome. I am really very grateful indeed and look forward to that being a source of relief to a number of families.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I said that this was a good Bill; none the less, there are certain aspects of it with which, respectfully, I do not agree.

This amendment relates to comments at the beginning of the pre-legislative scrutiny report by the Select Committee on Adoption Legislation, which I had the honour of chairing. It was the unanimous view of the members of that committee that, compared with the previous position, the Government had gone too far in the opposite direction. Section 1 of the Adoption and Children Act 2002 lists eight considerations applying to the exercise of powers. The previous Government had included subsection (5) as a separate subsection. It reads:

“In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background”.

Instead of being one of a number of considerations, that was out front. The result was that social workers, who were dealing with what is properly called the “ethnicity question” up front, were refusing to place children for adoption with parents who were not of the same colour, the same persuasion or whatever, and this was impeding the very natural and highly to be commended desire of this Government for adoption to move speedily.

The Government therefore decided to take Section 1(5) out of the Adoption and Children Act 2002. So far, so good, but now they have gone too far the other way because it does not appear anywhere. The nearest you get to it is Section 1(4)(d) of the Adoption and Children Act 2002, which reads,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”.

The Government’s view is that that covers the ethnicity point but I do not share that view. The evidence that the Select Committee received was that, whereas social workers paid too much attention to that consideration when it appeared as a separate subsection, there was now a very real danger that they would not pay any attention to it at all. Matters which are of considerable importance to a child—their religious persuasion, racial origin and cultural and linguistic background—have to be taken into account. They must not be permitted to frustrate a proper adoption if the circumstances of the adoption come outside one of those matters but they must be included in the checklist of the various points to which the social workers, the adoption agency—but usually the social workers—and the court must have regard, and removing them presents a problem.

I have had various meetings with the Minister and I even gave him a cup of tea this afternoon before we embarked on what is going to be a very long evening. However, I am afraid that I am not persuaded by his suggestion that there should be statutory guidance. Having it on the face of the legislation means that it has “an importance” but not “the importance”, whereas we all know that, although statutory guidance is important, it may not necessarily be read as carefully as it might be. However, it cannot be entirely ignored if it is in primary legislation. I share the Select Committee’s thought, which was to tuck it in neatly into subsection (4)(d), so you would read it as,

“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”.

This would then include,

“religious persuasion, racial origin and cultural and linguistic background.”

It would not be too prominent, but it would be there. For those reasons I wish to pursue this amendment, and I beg to move.

[Baroness Hamwee]

My Lords, I have the other amendment in this group. Like the other members of the Select Committee, I agreed that certain characteristics of a child for whom adoption was sought should not be highlighted as if they overrode everything else. Like the other members, as the noble and learned Baroness has said, I was concerned that the wrong message might be taken from new legislation. In taking out a provision for due consideration—because that is all it is, not an overriding consideration—to be given to the child’s,

“religious persuasion, racial origin and cultural and linguistic background”,

Parliament would be saying that no consideration should be given. Like the noble and learned Baroness, I fear that guidance would not be enough in that situation.

I do not think we said this in Select Committee, but I am fearful about this. England would not be in the same situation as Wales. Wales will be keeping this wording. The fact that adoption is a devolved matter does not answer the concerns that I have. It would be seen as a very significant distinction. This swinging political pendulum has got to end up in the middle. As the noble and learned Baroness has said, it is not an overriding issue, nor something to be entirely discounted. In Committee I said there had been oversensitivity to what some parts of the media regard as political correctness. I know that the Minister’s concern is that minority-ethnic children are being short-changed. Sadly, the cohort that is being short-changed is the many children from all sorts of backgrounds who are waiting for adoption. The problem is the imbalance between their numbers and the numbers of prospective adopters. To adopt, one needs to be sensitive—to be understanding of the importance of religion, of racial origin, of cultural and linguistic background. It is not a matter of “being the same as”. People who are the same may not understand, and may not be sensitive enough. But that sensitivity, that openness, addressing issues which may arise—that is the matching which is important, not the direct same characteristics.

As the Government were not been persuaded in Committee, a different approach might appeal. My amendments would take out the references to age and sex so that the court and the agency should have regard to the child’s background and characteristics, because those cover everything. The Minister has said that background and characteristics must include ethnicity. He said that is a matter of plain English. Age and sex are also characteristics, so I hope that my plain English amendment might be helpful.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Tuesday 12th November 2013 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as chairman of a forced marriage commission which is currently hearing evidence. An interesting aspect of that is that we went to visit the Karma Nirvana organisation just outside Leeds and the victims to whom we spoke were all very anxious that forced marriage should be criminalised. I have had my doubts about that. I took part, with the noble Lord, Lord Lester, in the original initiative on this issue, which led, I am very glad to say, to a government Bill being produced some years ago under the previous Government. I know that the noble Lord is very opposed to the criminalisation of forced marriage. However, there is no doubt that all the victims to whom members of the commission spoke considered that this was an essential next step, which I thought was very interesting.

I am very concerned about how the immigration authorities, or emigration authorities, can cope with this problem. I talked to an immigration official at Gatwick and asked him what he did about girls going out to Pakistan with their parents and those coming back, or a young man coming into this country, where a girl is waiting with her parents to welcome him as her intended husband. The official told me that he had spoken to these girls on many occasions. One such girl was waiting for an intended husband to come through the airport and the official took her aside and asked her whether she wanted to marry that man. She replied, “No, I do not”. When he asked her whether it was a forced marriage, she replied, “Yes, it is”. He said that he could stop the forced marriage by preventing the young man entering the country but that the girl would have to declare publicly that she was being forced into a marriage. The girl replied, “I cannot do so in front of my parents”. This is a major problem. We know that a lot of girls and some young men, many of whom are under 18, are being forced into marriage in Pakistan, Bangladesh and India and, indeed, other places. This is by no means only a Muslim problem. It is also a Sikh problem and occasionally a Jewish problem, but it is a problem across the world. One of the major problems in this regard I have been told about concerns disabled young people, particularly those with learning difficulties, as the parents think they are doing the young woman concerned a favour by marrying her off as she will be protected for the rest of her life. Nevertheless, she does not want the marriage and this is a very real problem.

I very much support Amendment 5, particularly because I think it is time that everyone, from the Government through to the Department for Education and schools in particular, should do as the noble Baroness, Lady Thornton, suggests and treat this as a child protection issue. If you force a girl or boy to marry under the age of 18, particularly under 16, when they do not want to marry, this is a very real child protection issue. However, another extremely worrying issue arises. These girls—it affects particularly the girls—are being married in other parts of the world with an Islamic ceremony. That ceremony is not registered overseas and it is not registered in this country. Therefore, the girl is not married according to English law. The husband can divorce her under Islamic law and she can obtain no redress in this country for herself. She does not have to be married to get financial help for her children but she gets no financial help whatever for herself because she is not married according to English law. Interestingly, there is a law that gives the second wife in a polygamous marriage some financial assistance.

I have not tabled an amendment in relation to forced marriages that are not considered valid marriages, but I hope that the Government will look at that as there is no shortage of women in this country and abroad who are not considered married according to English law although their marriage ceremonies are considered perfectly adequate in some communities. I particularly underline what the noble Baroness, Lady Thornton, said about child protection. I am not at all sure whether Amendments 5A and 6 are entirely necessary, although the Government should certainly look at them, but Amendment 5 is vital.

[Baroness Hamwee]

My noble friend Lady Berridge is not in her place at the moment, but I know, from a very short conversation I had with her yesterday, that her Amendment 11 is intended to address the second problem to which the noble and learned Baroness referred. When I first read it, I thought it was simply about annulment but she tells me that it is, in fact, about property.

Children and Families Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 14th October 2013 Grand Committee

[Baroness Butler-Sloss (CB)]

My Lords, I strongly support the amendment. As I think I said at our previous sitting, when I chaired the adoption committee we had two meetings with children, one with looked-after children and the other with children who were or were about to be adopted. Each group made it absolutely clear, particularly younger children—the seven, eight, 10 or 12 year-old children—how important their siblings were. They said to us that siblings were more important to them than parents. Some of them would have liked to have seen their parents; they all wanted to see their siblings. It was so sad; one little boy said, “I’m so worried about my brother. I don’t know what’s happening to him. Nobody will tell me and I’m not allowed to see him. I wake up at night wondering how he’s getting on”. That is not acceptable for children. The amendment would alert everybody to the importance of siblings, which is why I support it.

[Baroness Hamwee]

My Lords, I very much agree with all that has been said. I remember being struck by the strength of feeling expressed by the young people. At our previous sitting we talked about the importance of identity; contact with one’s siblings and understanding that family dynamic is another aspect of identity. I have been impressed by somebody outside the group of people whom the noble and learned Baroness saw, whose feeling of responsibility for her younger sibling was important to her to express and fulfil. By separating her from her younger sister—by being deprived of caring for her—she was being deprived of the expression of her own personality. That was of huge significance to her.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I, too, support the amendment. It is so obviously a good idea. I have a suspicion that if it is not part of the legislation a voluntary system will work in a few places and will be disregarded right across the country. It is for that reason that it needs to be made part of the legislation.

[Baroness Hamwee]

My Lords, the meeting arranged by the noble Earl brought a number of comments about Staying Put. It was clear that there is a shortage of accessible information—particularly because not all authorities are operating the system—and that there are real complications when there are cross-boundary considerations. That follows on from the point made by the noble and learned Baroness.

Some things were mentioned which really took me aback. When a young person becomes 18, if he or she does stay with the foster parents a tenancy agreement has to be signed. As a couple of the young people we met said, “This does not reflect our relationship. They are our foster parents; they are not our landlords”. It is necessary, I understand, to have a tenancy agreement in order to qualify for housing benefit and income support. I asked how the total income compared to fostering allowances and I was told by the foster carer we met that the total income had reduced by about 50%. He was very enthusiastic about his foster daughter remaining with him. That foster daughter also said—she was part of a sibling group—that she had to be CRB checked in order to stay with her sisters. Something has gone wrong with the system.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Baroness Butler-Sloss

Wednesday 12th December 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, like many other people, I received a large number of e-mails and letters all going one way in support of the noble Lord’s amendment. I would just like to tell the House about one letter I received. In my very untidy desk, I have lost it, but it was about a lay preacher who preaches on the street and preaches on Sundays in church. He happens to subscribe to a literal form of the Old Testament with which I do not agree, but he was preaching on his literal interpretation in the street. Someone complained to the police, and he was arrested and spent seven hours in the police station. He was placed on police bail on the order that he was not allowed to preach. If that is not an abuse of the freedom of speech, I do not know what is. I cannot understand why the Minister and the Government are not supporting this amendment.

[Baroness Hamwee]

My Lords, I was hoping that my noble friend Lord Macdonald would be in his place as he was a little earlier. I hope he is not stuck in a lift or something. I want to put on record on his behalf, on my behalf and on behalf a number of people who are becoming quite vocal, my wholehearted support for this amendment, and I speak for a number of colleagues. I put my name to the equivalent amendment at the previous stage and, as I recall it, the noble Lord, Lord Mawhinney, said, “For heaven’s sake, even the Liberal Democrats have this as party policy”. Well, we do; we would have gone further, but we are happy to go as far as is before us tonight.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 10th December 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendments 113GZB and 113GC in this group, to which my noble friend Lady Linklater has added her name. These also deal with the term “exceptional” and with the application of the section in the Criminal Justice Act 2003 that provides for the court to have regard to the purposes of sentencing, which are listed as:

“the punishment of offenders … the reduction of crime (including its reduction by deterrence) … the reform and rehabilitation of offenders … the protection of the public, and … the making of reparation”.

I do not seek these amendments to exclude punishment from the matters to which the court must have regard and I acknowledge that society must deal with offenders in such a way as to win and retain the confidence both of victims and the general public. However, I cannot extrapolate from the research referred to in the impact assessment that where there is a punitive element, there is less reoffending.

Reading through the impact assessment yesterday, it struck me that the sentences in question, which the impact assessment prays in aid, will have been tailored to the offender by the court. In other words, they will be much more bespoke than it seems we are being asked to agree. Certainly, there is no comparison with a control group. Almost by definition, there cannot be a control group in these circumstances. We are told in the impact assessment that the rationale for intervention is to give tools to sentencers. As we have heard—not only tonight—we already have an extensive toolbox and we are adding to it with the welcome provisions on restorative justice. However, the theory of having certain tools available and their availability in practice may not always be quite the same. Public confidence comes from reducing reoffending and crime overall and we have heard what victims want. At the last stage of the Bill, I referred to research by the Restorative Justice Council and Victim Support, which amounts to victims wanting to be sure that “he does not do it again”.

The impact assessment also acknowledges that because community orders must be,

“proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones”.

This worries me greatly. The Government tell us that some requirements may be labelled punitive, but in fact would be rehabilitative or become rehabilitative. The Minister used the example of requiring someone to get up every morning to go to an educational course. By the end of it, that person might have found it was a good thing, so it will have moved from punishment to rehabilitation. As I have said before—and I do not resile from this—I find both the possible substitution and the labelling worrying: for instance, labelling education or mental health treatment as punitive. The noble Lord, Lord Rosser, has spoken to his amendment, listing the types of community order which may amount to punishment. I depart from others on this because I do not think that saying the punishments “may include” takes us a lot further forward. If it is to send a message to the sentencers, then the new subsection (2A) sends a stronger message, in effect saying that a fine is not a punishment. I realise that we did not focus much on this at the last stage.

Without spending long on this, I very much support Amendment 113GB from the noble and learned Lord, Lord Woolf. This expresses what I for one have not been able to articulate previously. At the last stage and on other occasions we have talked a lot about the characteristics of offenders and their circumstances. We know about mental health problems and substance abuse, which so often underlies them. Other noble Lords will have seen a new report from the Criminal Justice Alliance, drawing attention to the mental health treatment requirement and its underuse. That is a pity, because the very prevalence of mental health problems means such an offender is not exceptional. In Committee, the Minister stated that,

“the courts can tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders”.—[Official Report, 13/11/12; col. 1428.]

I do not entirely follow how the “tightly defined threshold”—as he described it—ensures that the requirements do not have “a disproportionate impact”. My logic is too confused even for me, but I did not quite follow the argument.

The Minister also stated:

“Nothing in the Bill seeks to undermine the judgment and flexibility of the judiciary, but it puts rehabilitation as a key objective”.—[Official Report, 13/11/12; col. 1429.]

Surely it must affect the hierarchy of sentencing purposes and principles and therefore affect the court’s flexibility.

The noble and learned Lord referred to using delicate surgery on the clause and his scalpel has excised the word “exceptional”. As an alternative, my term “particular” is drafted in the hope that in presenting the Government with a menu, they might be tempted to choose one of them instead of rejecting everything. It is a little less extreme than complete deletion, but the noble and learned Lord’s point about criteria is, of course, the important one.

My Amendment 113GC also refers to Section 142 of the Criminal Justice Act, to which I have already referred, about purposes of sentencing. At the last stage my noble friend gave an assurance, saying:

“Let us be clear: of course the five principles are intact”.

However, he went on to say,

“why bring legislation if we do not intend to change things?”

Hansard then reports him as saying:

“We do intend to chance things”.—[Official Report, 13/12/12; col. 1432.]

I do not think it meant that.

My noble friend twice said that it was “not the Government's intention” to,

“jeopardise the prospect of rehabilitation”,

or to,

“detract from the court's existing obligation to have regard to the five purposes”.—[Official Report, 13/11/12; col. 1435.]

It may not be the Government’s “intention”, but I fear that the words of the Bill detract from the five purposes and create a hierarchy. They would require the courts to bring a different approach to sentencing and—as I have already said to the Minister outside the Chamber—I hope that at least he can put on the record some further assurance that is firmer than saying it is “not the Government’s intention” and persuade your Lordships that these words do not do what I fear.

[Baroness Butler-Sloss]

My Lords, I must first apologise for not being present at the beginning of this part of the debate. I cannot see the point of Part 1 of Schedule 16. It really is not necessary. It owes more to the requirement of Government for the perception of the public and the press rather than the reality that a community order is in fact a punishment. I said this at greater length in Committee, so I will not go into it now. A community order is undoubtedly a punishment if it requires somebody to do or not do something, is compellable and the failure or refusal to do it has criminal sanctions. To distinguish between one sort of punishment or another is a really impossible situation. Some punishments will be more severe than others, there is no doubt about that, but the Government are pandering to perception rather than looking at the reality of what the judges and magistrates are doing.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Baroness Butler-Sloss

Tuesday 13th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I was thinking about not brandy but confectionery and I do not find this fudge, if one thinks about it, as being sweet and tasty. In every other way, however, I absolutely follow what the noble Lord, Lord Ramsbotham, has said, although my remarks will cover rather narrower ground than his.

I really wonder, as others have, whether this provision is necessary. If it is only gesture politics—I say that rather bluntly—it might not be so bad, although I would still deplore it because I deplore gesture politics, but it must mean something. As the noble Lord said, every day the courts do the things that we are being told this provision is directing them to do. I do not believe it does anything but restrict sentencing choices. It imposes a requirement that may be detrimental for offenders whom one is seeking to rehabilitate. I do not need to amplify that; we have a lot to get through and these points will be made better by others throughout today.

I wonder whether Amendment 2 achieves anything. I support the sentiment behind it but changing “must” to “may” does not add anything if we accept that punishment is already one of the purposes of sentencing —which it is, under Section 142 of the Criminal Justice Act 2003. As I say, however, I am with that sentiment.

The letter dated 7 November that we received from the Minister said that the term “exceptional circumstances” is very tightly drawn. I had to go back and reread that, because I think “exceptional circumstances” is very widely drawn when one thinks about the context in which we are debating this. As noble Lords have so often said, and as others outside this House have reminded us, such a very high proportion of offenders suffer from mental illness, substance misuse and dependency that one could not say that there was anything exceptional about their circumstances. The noble Lord, Lord Ramsbotham, referred to debt in the context of imposing a fine. That made me think that being in very straitened financial circumstances, combined with other factors, is often a prompt or a nudge towards theft and various offences.

When we last debated this schedule, I suggested that “particular circumstances” would be a better term than “exceptional circumstances”. Discussing that with colleagues later, we wondered about “special circumstances”, and my noble friend Lady Linklater has tabled Amendment 6 to propose that term. Essentially, we are trying to suggest a number of other possible terms—not alternatives because I do not think “exceptional” is right—if the Government are insistent, as I expect they will be, on retaining this part of the schedule. The noble and learned Lord, Lord Woolf, has taken a scalpel to it and pointed us to the inconsistency between the terms “just” and “exceptional circumstances”. I am very happy to line up behind him if that is the way that the House thinks we should go if we do not get rid of this altogether.

[Baroness Butler-Sloss]

My Lords, I put my name to Amendment 5, but I strongly support what the noble Lord, Lord Ramsbotham, said and his Amendment 1 to take the whole of this out. I am also happy to support Amendments 4 or 6. I shall make the very obvious point that every community order will be, for the offender, a form of punishment because it is mandatory. You do not need to use the word “punishment” because it is implicit in a community order. I am sorry to say it again, but since the Government have put a form of punishment as part of a community order, as if a community order was not a punishment, I find this extremely difficult to follow. The terms are in conflict with each other in this proposal by the Government. I had not seen it that way to quite the same extent as I did looking at this today. For goodness sake, why put it in? It is sad that the Government seem to need to use the words “punitive” and “punishment” when it is already clear that a community order is punishment because it is an order that whoever receives it will have to obey. If that particular offender does not obey a community service order, he or she will be punished for failure to obey a punishment that has already been imposed. In my view, the words “punitive” and “punishment” are unnecessary, inappropriate and profoundly unattractive. Like the noble Baroness, Lady Hamwee, I wonder whether this is gesture politics. I very much hope it is not, but she made a point that this House ought seriously to consider.

I do not mind whether we use the word “particular”, as the noble Baroness, Lady Hamwee, said, instead of “exceptional”. Preferably, perhaps, we could do what the noble and learned Lord, Lord Woolf, said, which would be to take the word out altogether. The noble Baroness, Lady Linklater, has suggested using “special”. The point is that “exceptional” should not be there for the reasons that the noble and learned Lord has already given. I do not mind how it is altered but the word exceptional has to come out.

The Government have to listen to the people in this House who spoke last week and today and said that this will not do. As I think I said previously, I urgently and respectfully suggest to the Ministry of Justice that this is an unsuitable way to be going ahead. As I have already said, it is profoundly unattractive. The words “punitive”, “punishment” and “exceptional” should be taken out. The Government should recognise that a community order is a punishment. They should not just look to the lobby of the press or the public, but should do what is right.

Adoption Agencies (Panel and Consequential Amendments) Regulations 2012

Debate between Baroness Hamwee and Baroness Butler-Sloss

Wednesday 25th July 2012 Grand Committee

[Baroness Butler-Sloss]

Before I continue, I should, with a further apology, make a correction: I went to see the two Ministers with the noble Baroness, Lady Morris, and the noble Baroness, Lady Hamwee—not the noble Baroness, Lady Howarth. I apologise to the noble Baronesses, Lady Hamwee and Lady Howarth.

As a former judge, I have my doubts whether the adoption judge hearing a placement application would be able to carry out a task similar to the panel, and whether they would have the evidence and the opportunity to carry out the detailed scrutiny expected by the Norgrove committee. I have some questions for the Government. On the assumption that the Government go ahead with removing this duty from panels, what will be put in its place? Will an independent person other than the decision-maker pull together all the relevant evidence about the child at an early stage and advise, or will there be a gap, with the potential for drift? Will the whole burden be placed on the decision-maker alone?

Is the department looking at active involvement of the IRO and, if so, recognising that the IRO would have to have a much reduced current case load? The adoption committee has not yet—and I emphasis this—formulated any conclusions on any of the issues that I have raised. However, we are concerned that there is a conflict of evidence and consequently some degree of confusion over the removal of the panel from this task. When the statutory instrument comes into effect on 1 September, the committee is concerned about this degree of conflict and confusion and what advice the department is going to give, particularly to local authorities, to resolve these issues and to avoid drift, lack of momentum and possible delay, with the case not being in order for the judge. I beg to move.

[Baroness Hamwee]

My Lords, I thank the noble and learned Baroness very much for bringing this matter to the Committee, and for her quite splendid chairmanship of our committee. I thank the Minister and Tim Loughton for the meeting last week. I am very flattered to have been confused with the noble Baroness, Lady Howarth, I must say. The meeting was extremely useful and I hope that we made it clear that members of the Select Committee share with the Government the objective of the best possible outcome. We have received powerful evidence about the impact of lack of permanence, particularly in the early years.

Given the jigsaw of interlocking procedures, it is important for the Government to explain why they are taking one step of several steps that may be available, and which I suspect will be taken quite soon, when a number have been identified. It is not always entirely clear why one step should be taken in isolation. I appreciate that one can argue it the other way—that if you have identified a step you should get on and do it—but this is quite a complex area.

The Explanatory Memorandum says that the objective of the regulations is to remove both delay and duplication. Delay is, of course, a loaded term. I am sure that the noble Baroness, Lady Eaton, has experienced, as I have, that when one is arguing planning applications in local government, delay does not actually go to quality. She is agreeing with me. Taking time may sometimes be necessary. Taking time unnecessarily is a bad thing, of course. The duplication that the Explanatory Memorandum refers to, as the Norgrove report did, is between the panel and the court. The noble and learned Baroness, Lady Butler-Sloss, will know how long a judge is typically given to read the papers—I suspect less time than a panel is, although I am always amazed at how quickly panels assimilate information.

The Government are not pointing to duplication between the panel and the decision-maker, who does not need the prior work of the panel, in the view of the Government. It seems to me that the decision-maker must need the same information as the panel, and Coram, to which the noble and learned Baroness has referred, regards the panel as providing quality assurance. Coram has given us some very helpful evidence, and the noble and learned Baroness has referred to the possible slippage in quality because of the loss of the independent element.

Coram also talks about adoption decision-making being delegated to less senior staff or the creation of a dedicated role that would not be integrated in the same way that the current post is. It also talks about the removal of independent panel chairs, and we have heard some very forceful evidence, particularly from BAAF, about the contribution made by independent members. The expertise from outside the authority brought to panels is really quite important. Alongside that, we are hearing quite a lot of concern about the lack of experience of adoption work among social workers. We asked the Local Government Association for its comments on these regulations, and, after a moment’s thought, one of the councillors who was at our session more or less said that authorities would invent a structure to replace panels. Admittedly, she might have been thinking about the abolition of panels as a whole, but it was a very practical response. If an authority sees a need to bring in outside expertise, it will find a way to do so.

The Government say that panels add no value, but I wonder whether the converse of that is the risk of abolishing what is excellent practice. We have heard that, in practice, panels meet frequently—weekly if necessary. If they do not meet often enough and are causing delay, their practice needs to be improved. I also wonder whether, if a panel is retained for matching a child with a family, that panel would not need to cover much of the groundwork that would have been covered by the panel dealing with placement.

When we met the Minister, Mr Loughton, he told us about the visits that he has made to sit in on and observe panels. He commented on the amount of material that panel members are expected to absorb, but he did not seem to say that they are failing. There are professionals, sometimes from different professions, who become skilled through the job that they are doing. I have to say that, as a society, we are very lucky that there are people who are prepared to do this job. I am not convinced that they should lose this role.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 18th June 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I am sorry to say that I have been rather slow on the uptake and have only just read the report of the Constitution Committee. Since this is Committee stage, I believe that I am permitted to speak even though it is after the Minister.

I support what the noble Lord, Lord Rosser, has proposed. I can see that there may well be great advantages in the National Crime Agency one day taking over the role of the Metropolitan Police. Nevertheless, as I understand it from what the Minister said, there will be a review as to whether this is the appropriate way to do it. I cannot see why the Government could not deal with this in one of two ways—I speak, of course, as a novice in the procedures of this House compared with the Minister and, indeed, with the noble Lord, Lord Rosser. If the Government are fairly clear that this is what they want to do, I cannot see why they cannot put it firmly in Clause 2 that they will transfer to the NCA from the Metropolitan Police, but not until 2013 or 2014 so that it does not come into force until after the Olympics and the Paralympics. Alternatively, if they do not know for certain that this is what they want to do, why on earth can they not just put in a very short Bill to deal with counterterrorism? That should not take an enormous amount of time going through both Houses, if it does not have added to it all the stuff that tends to be added to almost every Bill by any Government. It is possible to pare it down to just this point.

I share with diffidence, but none the less quite firmly, the concerns of the Constitution Committee set out in the first part of its report. Since the noble Lord, Lord Pannick, is not here, I thought it was important that a Cross-Bencher should express a view so that it is not seen just as a party political manoeuvre of any sort.

I think that there are a number of disadvantages to using the super-affirmative procedure. First, although it is perhaps at the highest ranking of subordinate legislation, it is not primary legislation. Perhaps more importantly, if anything is wrong with the drafting—drafting is not always perfect—we cannot tease it out in debate. It stands or falls in its entirety. We can have amendments to primary legislation that we cannot have when using the super-affirmative procedure, even as I would understand it.

I share the concerns of the noble Lord, Lord Rosser, but I particularly share the concerns of the Constitution Committee. I just wonder whether the Government are right to try to proceed this way on what seems to be a clear Henry VIII clause. Perhaps it is almost time that Henry VIII was put to bed.

[Baroness Hamwee]

My Lords, I like the notion of Henry VIII being put to bed. He used to say that of others, did he not?

It will be clear to the House from my amendment before the dinner break that I am merely an ordinary lawyer. I am probably what my noble friend Lord Roper calls a “cooking solicitor”, the analogy being cooking sherry. I am glad to have understood a little better how these things work.

I did not want to come in before the Minister spoke, because I wanted to hear what he had to say. Like the noble and learned Baroness, I am a little confused about the rationale for postponing this measure when we know that this Bill will still be in Committee in this House—it will not even have reached the other House—after the Olympic and Paralympic Games. Like her, I am not sure why that is the case, unless the Government have some reason to feel that it would undermine the authority of the Metropolitan Police during the Games. I cannot see it, given that somebody who is being dealt with under some terrorism charge is not going to thumb their nose and say, “Yoohoo, you’re not going to have this function for much longer”. That is not life, is it? So I remain confused about that.

Like the noble and learned Baroness, I feel that although the super-affirmative procedure clearly gives more opportunity for debate and response than the simpler secondary legislation procedures, the response to what the Minister proposes is almost a nuclear option, because it would mean the whole order being rejected rather than dealing with small parts of it. On such a serious matter, which I know that the Government have thought about very seriously, I am reluctant to say—but I do say it—that I am not convinced. I expected the Minister to tell the Committee that legislative time was short, and so on. I do not think that he has prayed that in aid, but had he done so I would have said that this was so important an issue that time needs to be made for it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Tuesday 27th March 2012 Lords Chamber

[Baroness Butler-Sloss]

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

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

[Baroness Hamwee]

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

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

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

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 12th March 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,

“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.

That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.

I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.

What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.

Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.

[Baroness Hamwee]

My Lords, like others, I have been aware of the paradox that some senior lawyers have commented on the complexity of immigration law, but that if those extraordinarily senior lawyers had attempted to give advice they would be committing a criminal offence.

I do not want to repeat all the powerful points made in this debate, but an obvious point to me is that so many of the not-for-profit organisations which are not approved to give advice in this field work on something less than a shoestring. We have seen some of them folding not so long ago. Those which are approved are very stretched. They may not survive if legal aid in this area does not remain available. I do not suppose that the financial criteria for being granted legal aid under any part of the scope will be that generous—one's means must be very low to qualify. Like the noble and learned Baroness, I very much welcome the announcement that victims of trafficking will be eligible to receive legal aid. I wait to see the detail on that.

I just wanted to make two points. First, not everyone who wants to stay either wants to or can apply for asylum—I recognise that that will remain in scope. Secondly, their very difficulty with immigration status restricts many trafficked victims from seeking help to escape from their traffickers. Their passports will have been taken away. To many of them, that amounts to their identity being taken away. That leaves such control with their traffickers that I find it a difficult notion that they will not be able to get advice under a legal aid scheme.

Protection of Freedoms Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Wednesday 15th February 2012 Lords Chamber

[Baroness Hamwee]

My Lords, as the Minister has explained, my Amendment 50B seeks to understand precisely what is meant by his Amendment 50A. I welcome the direction in which the Government are moving, and I hope that I will welcome the guidance as well. As he said, this issue caused some unease among noble Lords in previous debates, and there were some very powerful and very knowledgeable contributions on the last occasion.

My amendment would take out the words “in all the circumstances”. There has been reference not only to unease but many times to balance, which in a number of places in this Bill has been the approach taken. However, concern has been expressed that balance in this context may be more dangerous than we would like to think. I am not clear what is meant by “the circumstances” here. Is it a balance between what is required for the protection of children and the burden on those who are supervising?

The Minister has said that it means more than simply “reasonable”, and qualifies it—of course, “reasonable” is a qualification in itself. My concern, as he has anticipated, is that to add “in all the circumstances” would reduce the degree or quality of supervision required. It must mean something, otherwise it would simply say “reasonable”. I do not think it adds; I fear it may detract. He has explained that it requires local managers on the ground to judge the risk—I think I am right in saying—in the circumstances of the particular activity. It still seems to me that “reasonable” alone would do the job. My amendment looks for confirmation that “in all the circumstances” is not a reference to the burden on those who supervise or who might supervise.

I started by saying that I welcome the direction in which the Government are moving, and I would hate this phraseology to take us backwards from that. I beg to move.

[Baroness Butler-Sloss]

My Lords, I have put my name to this amendment to the amendment. First, I apologise to the House and the Minister for not having been here at the beginning of his explanation. I share the concern of the noble Baroness, Lady Hamwee, about the use of the words “in all the circumstances”. Either it is reasonable or it is not reasonable. People will wonder whether “in all the circumstances” adds something to “reasonable” that might not be entirely clear.