Counter-Terrorism and Sentencing Bill

Debate between Baroness Hamwee and Lord Woolf

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, the questions that have been asked are important. We cannot assume that the rules that currently apply for use with sex offenders are going to apply in terrorism cases. Indeed, Clause 35(2) tells us that there may be particular rules for terrorism cases, and even if that was not in the Bill, we know that rules can be changed at any time, relatively easily.

Polygraphs do not have a great reputation with the public, and “The Jeremy Kyle Show” did not enhance it, which is another reason for wanting to explore details today. I made the point only yesterday on the Domestic Abuse Bill that operators have to follow courses accredited by the American Polygraph Association, and I was interested—I will try to use a neutral term—that we in this country are following American practice.

Under the rules, there are requirements about reports and records. I had a look at the 2009 rules, under which the operator is required to explain the requirements of the session: that anything disclosed might be communicated to the probation officer, and that there must be consent—or, rather, written confirmation—from the offender that these explanations have been given. I stopped myself calling it “consent” because, in that situation, I wonder whether the anxiety to which my noble friend Lord Thomas referred would preclude a complete understanding by the offender of what is happening. In that situation, knowing that refusal to take a test would amount to a breach of licence conditions, would you not sign anything?

The current reviewer of terrorism legislation has called for a pilot, and, if not a pilot, then post-legislative scrutiny. Not many Bills come along for post-legislative scrutiny by Parliament. The noble and learned Lord, Lord Stewart, painted a picture that I did not quite recognise. It sounded rather more like a departmental review—an internal review—than scrutiny by Parliament to see how an Act is getting on.

At last week’s briefing, I asked about the reliability of polygraphs used on subjects who have undergone some extreme experiences, such as having been in a war zone. I understand that that cohort is particularly in the Government’s mind at the moment. The professor of psychiatry—Professor Grubin, I think—who, I understand, advises the Home Office, realised that I was referring to trauma. I had not wanted to assume that they were subjects who had been traumatised, but he was right. I remain concerned not only about what might be perceived from offenders’ reactions but that the test itself might be retraumitising, so I think that the questions being posed are very helpful.

[Lord Woolf (CB) [V]]

My Lords, it has been a privilege to listen to the speeches this afternoon. I have benefited very much from what has been said by all noble Lords and I make these submissions bearing that in mind.

At the moment, I see Clause 35(1) as the most important provision dealing with polygraph licence conditions. What we have heard this afternoon indicates just how clearly we are engaged on a learning curve at present. As I read it, subsection (1) provides that the power to use polygraph licence conditions will be limited by the regulations made in that subsection. Therefore, it seems that the whole of this debate should be conditioned by that provision, and that is why I thought it right to intervene in this almost private party that is dealing with these issues.

It seems to me that we are on a learning curve not only with regard to the provisions of this Bill but generally on the use of polygraphs in this country. It is obviously very useful to have as much material as we can so that, before we give the Government such powers as we consider appropriate, we know what the limitations will be.

I of course recognise that the Ministers we have heard address the House today would have given the assurances they did only if they were confident that they would in fact be applicable. But the provisions will be in their final form only after the regulations have already been drafted and the limitations expressed. That is why I think the whole concept in the amendment proposed by the noble and learned Lord, Lord Falconer, should be treated as being very appropriate, because this is the mechanism by which those limitations are going to be defined.

Counter-Terrorism and Security Bill

Debate between Baroness Hamwee and Lord Woolf

Monday 2nd February 2015 Lords Chamber

[Baroness Hamwee]

My Lords, at the last stage I supported the noble and learned Lord. I had not thought it would be appropriate to come in at this stage because I had to deal with something else while remaining in the Chamber, so I was not able completely to concentrate on what he said. However, as one of those who, I suppose, must be regarded as having danced the most during the earliest part of this afternoon, I reaffirm my support. I trust the courts to take a proper attitude to the issues which come before them, which is what this amendment is about.

[Lord Woolf (CB)]

Before the Minister rises, I will just say that, as I understand what is proposed by my noble and learned friend Lord Brown, he is not saying that the courts’ powers should be in any way unusual. This is really giving them an ordinary responsibility within the scope of judicial review as I have always understood it.

Immigration Bill

Debate between Baroness Hamwee and Lord Woolf

Tuesday 6th May 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my noble and learned friend responded extremely speedily to my bank holiday inquiry, and I am grateful to him for that. The points about whether consent should be required for the tribunal to consider a new matter have been covered quite thoroughly, but I would like to mention the question of guidance. I was curious that this is guidance, because it must be guidance by the Home Office, and therefore the Home Secretary, to the Home Secretary. I would have understood had it been called a code of practice. The title does not really matter: it is the content. I wonder whether there is any distinction between the two.

Having seen the letter to the noble Baroness of 29 April, it seems to me that the way the guidance is described comes quite close to the exercise of discretion. I am aware that I have not put a question mark at the end of any of that, but I felt that I wanted to make those points.

[Lord Woolf (CB)]

My Lords, may I be forgiven if, despite my discourtesy in not being here earlier, I say a few words on this matter? It is very important, not only for the principles that noble Lords have clearly expressed already, but purely from a practical point. I urge the Government to think again about this, based on the experience of dealing with immigration cases for the majority of my career in the legal profession. The repeated use of the justice system to obtain delay was always a problem. I understand the motivation of the Government all too well, but that does not justify the departure from principle about which we have heard.

However, this is the point that I am most anxious to make. In reality, if the first tribunal before whom this matter is happening does not have the power to say what the procedure will be, that will create a lacuna which will be exploited more and more frequently by those who realise that they just need to make a new point and the Government’s representative will have to ask for adjournments so that he or she can take instructions on what action to take. Not only is this wrong in principle, it will create an undesirable position. Although it is not intended, it will undermine the status of those who adjudicate on these matters. More and more immigration matters are now being dealt with outside the High Court, so we should not be undermining that status but supporting it.

I urge the Government to take this away again. I do not think that they have met either the problems of principle that were raised on the last occasion that this was discussed or, more importantly perhaps, the practicalities of sitting on a tribunal and having to deal with applications. As an adjudicator, if you are in doubt about the right course to take, of course you can always adjourn. Most legal systems are plagued by unnecessary adjournments. In my view, what the Government are creating here is unnecessary scope for adjournments. Even if there is just the ability to make applications—you can never stop them—they will result in adjournments, which I would have thought is the last thing the Home Office wants.

Offender Rehabilitation Bill [HL]

Debate between Baroness Hamwee and Lord Woolf

Wednesday 5th June 2013 Lords Chamber

[Baroness Hamwee]

Before the noble and learned Lord withdraws the amendment, as I assume he will, I wish to refer to that last point. Perhaps the Minister could ask his officials to let me know how Section 217—the one that I quoted about compatibility with religion and so on—can be brought to apply in the circumstances under this Bill if Section 196 is not amended. It is a matter of how it all knits together.

I wish to make one point. As the noble and learned Lord implied, rehabilitation can be the objective, but there are people who do not take into consideration the appropriate matters to move towards rehabilitation in a way that most people would think they should. It could be that some people in the criminal justice system think that one can achieve rehabilitation without putting the individual into his, or in this case her own, circumstances and context.

Perhaps we can pursue this after today but, bearing that in mind, as the supervision requirements are spelled out in detail in Schedule 1, are we in danger of them being construed so as to exclude the types of matters which I think all noble Lords who have spoken have referred to? Might they override those considerations because they are there in the statute? Anyone looking at it would say, “The only requirements that the Secretary of State may specify as being an executive action are the ones that are listed in paragraphs (a) to (j), so the other considerations do not have the same status or weight and I can disregard them, or at any rate have less regard to them”. Perhaps I can leave that thought with the Minister.

[Lord Woolf]

My Lords, I hope that the Minister, for whose response I am grateful, will reconsider what he has said today. With great respect, I do not think that he has met the points that we are making. In the future, we hope that the special position of women will be considered properly. For a very long period, the criminal justice system has failed in that respect. I am very grateful to the noble Lord, Lord Judd, for timing his entry into the Chamber so admirably. He picked up the great importance of the issue.

The problem is that the present Administration may not take this seriously if there are no clear signposts in the Bill. The Bill is meant to deal with particular problems that exist. The Minister recognised that in his remarks in relation to female offenders. Therefore, we have to break away from a clearly established pattern. It is very important that this constructive legislation shows clearly that it intends to tackle this issue. I hope that the Minister will think about what has been said during the course of the debate. I am extremely grateful for what other noble Lords have said and I am glad of their support. Their words deserve very careful consideration, which I hope they will receive. On Report, I hope that the Minister will have some good news for those who see this as a situation that needs to be addressed in a positive way. In those circumstances, I am happy to withdraw the amendment, and I thank those who took part in the debate.

Justice and Security Bill [HL]

Debate between Baroness Hamwee and Lord Woolf

Tuesday 26th March 2013 Lords Chamber

[Lord Woolf]

My Lords, I propose to say only very little because to some extent I anticipated what I might say, both in the previous debates on this matter and in the letter that has been referred to. However, when you hear Members of this House, with the experience that they undoubtedly possess, expressing concerns on this subject in relation to this Bill, I say that we have to give those concerns the utmost care and consideration, because their importance is very great indeed. We must be very careful that we do not fall into the trap of changing our traditions when that change will cause more harm than good.

Despite the arguments that have been advanced to the contrary, I remain firmly convinced that the Bill that we are now considering is radically better than the one that we were considering before, and the Government must be entitled to credit for that. As I understand it, what we really are considering, despite the oratory that we have heard, is very much a matter of degree. The only question to consider now is whether two further precautions should be inserted into the Bill in respect of what the Government have already done, which is to be welcomed on all sides.

Of course I accept the importance of open justice. You do not need to have that set out in a Bill for judges or ex-judges to say it. We have heard clear evidence of that in a recent decision of our Supreme Court, where the president of the Supreme Court was dealing with a procedure that is akin to the procedure now being proposed. The president of the Supreme Court, the noble and learned Lord, Lord Neuberger, made the clarion call—and I am delighted that he made the statement—that all should recognise that we are dealing with a situation that involves an intrusion into the principle of open justice. If there was any doubt about the ability of judges to protect that principle, I suggest that the noble and learned Lord, Lord Neuberger, made it clear that judges will protect it. After all, a judge makes a judgment, but his judgment is then subject to appeal. I urge the House to conclude that what we want is a situation where the judiciary, which has the fundamental responsibility of doing justice, has a discretion that is wide enough to do justice in the particular case that comes before it. I suggest that this Bill, without the proposed amendments, has to be judged on whether it enables the judge to do that.

The noble Baroness, Lady Berridge, suggested that this Bill might enable judges to do things that would reflect adversely on them. I accept that that is the inevitable consequence of judges exercising their responsibility to protect national security. If giving a judgment that is right and in the interests of effective and fair justice will reflect adversely on a judge, he or she must do their duty, give that judgment and not be concerned by the reputational consequence for them of giving that judgment. It is my belief that that is just what our judges do. They would put that out of their minds. Those are political considerations, which they should not be concerned with.

What is being done here is something that the Government say will contribute to justice, not the other way round. It is being done because, as must be recognised, it is the only real alternative that the judges do not already have. With great respect to the noble and learned Lord, Lord Goldsmith, I found his submissions difficult to follow, because redaction does not need this Bill; it is something that judges use regularly. The judge’s ability to take sensible precautions to protect national security is used with a degree of frequency, but this Bill does not affect those cases. It affects only those cases when the judge is satisfied that better justice will be done because of the Bill than would be done without the Bill. The amendments are to be criticised for the reasons identified by the Minister in opening the debate. It is right that you cannot have the judge using what is proposed here as a last resort, because that would undermine the Bill’s purpose.

Does the Bill give the judge the discretion that he or she needs? I remind noble Lords of the terms of Clause 6(2), which says:

“The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those are very wide terms, which give the judge what he needs. Clause 6(3) provides:

“The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those provisions put the judge in the driving seat, which is exactly where the judge should be as a result of this Bill.

Although we have to examine the arguments to the contrary with great care and appreciate just how important are the principles at stake, we should come to the conclusion that this is a Bill of which we can now approve.

[Baroness Hamwee]

I ask my noble and learned friend two short questions. The first is a very simple one, possibly even simplistic. He referred to the change in terminology from “must” to “may” as being very profound. Could he confirm to the House that the Commons amendment providing that the court,

“may make such a declaration”,

if it considers that two conditions are met, is equivalent in non-legislative speak to saying that the court may not make a declaration unless the conditions are met? In other words, it may make a declaration only if those conditions are met.

My second question concerns a matter that has been referred to once very quickly—that is, gisting, or the disclosure to an excluded party of sufficient material to enable him to give effective instructions to the special advocate representing his interests in closed hearings. Clause 10, which is to be amended by Amendment 17, is about the rules of court, and I would like to ask my noble and learned friend about those. There is nothing returned from the Commons on which we can hang an amendment specifically about gisting, so I hope the Minister can reassure us from the Dispatch Box that the rules will provide what I hope they will in this connection. Under Clause 10(2)(g), rules may enable the court to give a party to the proceedings a summary of evidence taken in that party’s absence. Responding to the first report from the Joint Committee on Human Rights, the Government say:

“Wherever it is possible and practically feasible to provide gists and summaries of national security sensitive material without causing damage, they will be supplied”.

They add that the question of gisting should be decided on a case-by-case basis. I do not want to take up the time of the House by arguing for the importance of the special advocate being able to take instructions from his client—that, I am sure, will be self-evident to everyone—but I ask the Minister to give an assurance that the rules will require gisting and I ask this particularly as Clause 10, to which I have referred, said the rules “may” make the provision, while Clause 7 provides that rules of court “must” secure certain things. I hope I do not read too much into the distinction between those two terms.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Lord Woolf

Tuesday 13th November 2012 Lords Chamber

[Lord Woolf]

I wondered whether anyone other than on the opposition Bench wanted to say something on this—I certainly do. I start by disclosing that I am the chairman of the Prison Reform Trust and the amendments in my name were put down with its support.

The noble Lord, Lord Ramsbotham, is absolutely right with his amendment. Whenever I get to my feet, I am conscious that as a young advocate, I appeared before a very well known judge, Mr Justice Stable, to advance an argument that my client should not be convicted of murder but manslaughter, and he said to me, “Mr Woolf, if you heed my advice, you would not water the brandy”. I fear that by getting to my feet, I may be inadvertently watering the brandy of the noble Lord, Lord Ramsbotham, because, as has been pointed out, if we get rid of the clause as a whole, we do not need to bother with the detail.

As to the detail, if it remains, I urge the House to get rid of the word “exceptional”. It has been used in legislation in the past. Wherever it has appeared, it has caused difficulties, not least because the question is: what is exceptional and what is not exceptional? That gives the advocate a difficult task; probably more importantly, it also gives a difficult task to the judge. You get into situations where judges are tempted to give an exceptionally wide meaning to the word “exceptional”. I remember a case where I did just that, because it created such an obvious nonsense that it resulted in injustice. A great judge, Lord Bingham, took a much narrower view of the meaning of that word than I did. The fact that two successive Lord Chief Justices should interpret that word in different ways illustrates my point.

With regard to the first of my tabled amendments, I urge the House to deal with the word “exceptional” if it allows this part of the schedule to survive. If it is removed, I suggest that proposed new subsection (2B) of Section 177 will have a sensible meaning. It would read:

“Subsection (2A) does not apply where there are … circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and … would make it unjust in all the circumstances for the court to impose a fine for the offence concerned”.

I do not think that the criticisms that I have made of “exceptional” apply to “unjust”. When judges are sentencing, they are trying daily to achieve a just sentence and if a sentence is unjust they will not impose it. The trouble with Section 177 is that if it is amended as set out in the schedule, it will become a vehicle for causing injustice. If you are sentencing you have lists of sentences for various offences, which you can impose. You might go down the list and decide that a community sentence is the appropriate one. Once a judge has decided that is appropriate, to say that he then has to perform an exercise to see whether that sentence is punitive—and put something else in if he comes to the conclusion that it is not—is really nonsense. It will cause him to do exactly what he has concluded is unjust. He has come to the conclusion that although the community sentence is necessary, it is not necessary to have an additional punitive penalty. From the practical point of view, that really is not a satisfactory outcome.

The other amendment with which I am involved in this group is Amendment 8. Or is that one not being spoken to yet? I apologise to the House; I will come to that later.

[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.

--- Later in debate ---

[Lord Woolf]

My Lords, I think now is the appropriate time for me to deal with Amendment 8, which returns to the same problem indicated earlier. I hope I am right in assuming that the Government do not intend the provisions of Section 177 as amended to undermine the effectiveness of community sentencing. My amendment makes that clear by qualifying the requirement contained in the proposed new Subsection (2A) to exclude that provision where it is likely to reduce the effectiveness of the order in preventing reoffending by the offender. This at least gives the sentencing judge a way of not doing something that he knows will be destructive of the beneficial effect of community sentence.

[Baroness Hamwee]

My Lords, the noble and learned Lord’s amendment goes to the heart of the issue. It would be ironical if what he is seeking to avoid were in fact to come about since all this should be about preventing reoffending. My Amendment 11 provides that none of this should affect the provisions of Section 142 of the Criminal Justice Act 2003, which sets out the purposes of sentencing. I realise that it would have been better drafting if I had just referred to Section 142(1), but never mind; one can come back to that at a later stage.

I am seeking to ensure that we do not impose a hierarchy of purposes and that we leave punishment where it is as one of five principles. I am sure that the Minister understands that this is the quite simple purpose of this amendment. I hope that he can reassure the Committee that nothing here seeks to alter in any way those well established five equal partners in principle.