Police, Crime, Sentencing and Courts Bill

Baroness Hayman Excerpts

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

Moved by

[Baroness Hayman]

131: After Clause 54, insert the following new Clause—
“Voyeurism: breastfeeding
(1) Section 67A of the Sexual Offences Act 2003 (voyeurism: additional offences) is amended in accordance with subsections (2) and (3).(2) After subsection (2), insert—“(2A) A person (A) commits an offence if—(a) A records an image of another person (B) while B is breastfeeding;(b) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.”(3) In subsection (3), for “subsections (1) and (2)” substitute “subsections (1), (2) and (2A)”.”Member’s explanatory statement
This amendment would extend the definition of voyeurism in the Sexual Offences Act 2003 to make it an offence to take a photograph or video of a person breastfeeding without that person's consent.

--- Later in debate ---

[Baroness Hayman (CB)]

My Lords, this amendment is in my name and those of the noble Baronesses, Lady Cumberlege and Lady Brinton, and the noble Lord, Lord Pannick. I am grateful to all of them for their support.

This amendment seeks to provide protection for mothers from being photographed or videoed without their consent while breastfeeding their babies. I suspect that few Members of the House will have been aware that such unpleasant, intrusive and distressing behaviour takes place at all, and will be surprised that it is not actually an offence. I suspect that even fewer would seek to defend what the then Minister, Victoria Atkins, described in Committee in another place as

“this unacceptable, creepy and disgusting behaviour”.—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 24/6/21; col. 748.]

Ms Atkins paid tribute in that debate to the many women who have shared their experiences and distress, and their demands for a change in the law in recent months, as do I.

I particularly congratulate Julia Cooper, who began the campaign for a change in the law after her own experience, and initiated a petition that has now been signed by over 30,000 people and supported by organisations such as the National Childbirth Trust, La Leche League and Mumsnet. Her experience was this: during a visit to a park in Greater Manchester, she noticed a man first staring at her as she fed her baby and then attaching a long-range zoom lens to his camera and taking photographs. She confronted him and asked him to delete the photos. He refused, saying it was his right. She then approached a park warden. He also unsuccessfully asked the man to delete the photos and then said that there was nothing more he could do because the law offered no protection. The response of Greater Manchester Police was exactly the same: sympathetic but powerless. Other women have come forward with similar stories and described how deeply distressing and violating an experience it has been, and their shock at having no recourse when their privacy has been invaded in this way.

This amendment therefore seeks to provide protection and a remedy for individuals affected by this unpleasant behaviour, and to deter and, if necessary, punish those who perpetrate it. But the context is not simply a matter of protecting the individual. Successive Governments have supported and protected women who breastfeed their babies, and continue to promote this public good. The Department of Health encourages women who can and choose to do so to breastfeed their babies because it brings powerful public, as well as individual, health benefits. Only last week, the Chancellor allocated £50 million to support breastfeeding in his package of help for young babies and young families. The Equality Act protects breastfeeding mothers from discrimination in employment and the provision of services. So it is illegal for a cafe owner to refuse to serve a breastfeeding mother, but not for a man to hover over her with a camera, videoing her as she feeds her baby in a playground.

Far fewer babies are breastfed in this country compared with many others in Europe and beyond. It is very obvious from repeated surveys on the issue that embarrassment and the logistical difficulty of combining feeding a baby with “normal life” is one of the main deterrents that keeps breastfeeding rates in this country so low, with all the detrimental effects on individual and public health. Failing to sanction unwanted, intrusive photography can only add to women’s reluctance and their fears.

Noble Lords will recall that, in 2019, Parliament took action against another unpleasant, intrusive aggression against women, upskirting, by passing the voyeurism Act. But the provisions of that Act are very narrowly defined and do not protect women in the circumstances we are discussing today. This amendment mirrors the provisions of the 2019 Act by adding the photographing or videoing women breastfeeding without their consent to the list of prohibited acts under the Sexual Offences Act 2003, to which the provisions of the Voyeurism (Offences) Act then apply.

When this issue was discussed in Committee in another place, the Minister did not query the need for action, and obviously shared the disquiet among Members at the present situation. She suggested that the matter could be considered in the strategy on violence against women and girls, but that strategy has now been published without any reference to the issue. Her main argument, however, was that we should wait for the Law Commission, which is reviewing the law around the taking, making and sharing of internet images without consent. That is a very broad subject, and we know how slowly grind the wheels of such a report’s journey to legislation. Even when the Law Commission recommends action, there is no guarantee that it will be agreed. Fewer than 50% of Law Commission reviews commissioned in the past decade have, as yet, led to legislative change. Rather than waiting on a review that may or may not be accepted by the Government after more consultation, and then for a relevant legislative vehicle, we have the chance in this Bill to act on the specific, clearly defined issue and to protect mothers and babies now.

I am ashamed to say that it is nearly 50 years since I first entered Parliament. One thing that I have learned in that time is that legislative time can be as precious a commodity as financial resources. This Bill gives us the opportunity to protect women from the damage and distress that is currently occurring. I hope that the House and the Minister will agree that we should grasp that opportunity. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I have added my name to this amendment. I start by thanking the campaigner, Julia Cooper, who the noble Baroness, Lady Hayman, quoted earlier, for her extraordinary diligence and campaign and her 30,000-signature petition to Parliament. I also thank the excellent Pregnant Then Screwed charity and Stella Creasy MP for their briefings.

The noble Baroness, Lady Hayman, has spoken eloquently on the need to add to the offence of voyeurism that of those breastfeeding. I echo her comments on the critical need to encourage mothers to breastfeed for as long as possible—hopefully for a minimum of six months. The truly long-term health benefits to babies are well evidenced, not least in the extra immune protection they are given, lasting for years. It is good that Clause 13(6) of the Equality Act 2010 currently protects breastfeeding women by saying that any business that displays less favourable treatment, or denies a woman access to goods or services, because she is breastfeeding can be in breach of the Act. This has been tested in the courts under the employment discrimination in McFarlane and another v easyJet Airline Company Limited, where the employer did not provide reasonable adjustments for new mothers who returned to work while still breastfeeding. However, there is no protection in itself of the act of breastfeeding, so it cannot be used to require the police or the courts to act to tackle the practice of taking photos or videos without consent.

I was pleased to be a member of the Liberal Democrat team supporting the Voyeurism (Offences) Act 2019, which created the criminal offence of up-skirting. Offenders now face up to two years in jail and being placed on the sex offenders register for taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks. This law banned the degrading practice, with the intention of deterring perpetrators, better protecting victims and bringing more offenders to justice. As the law specifies the location in the body to which the Act applies as being below the waist, this legislation does not protect those who breastfeed from a similar intrusion. I remind your Lordships’ House that we did not need to wait for a Law Commission to decide whether that Act should go through.

Julia Cooper’s experience, outlined earlier by the noble Baroness, Lady Hayman, is chilling. The 30,000 people who have signed her petition, and the evidence taken from Pregnant Then Screwed, show that this is not an isolated incident. Polling by YouGov in May this year shows that 75% of the public think that breastfeeding voyeurism should be banned. One new mother told Pregnant Then Screwed: “Just a few weeks ago, in my first time out with my new-born, feeding on a park bench, a man walks past, gets a camera out and, pretending to take a photo of something behind as he walks by, the camera tilts down on me. He caught me off guard so I didn’t say at the time, but I am now far more conscious of who is looking and would call them out. But we shouldn’t have to think like this.”

Why should we not follow the recommendation of Victoria Atkins MP, the Government proposal that the ongoing Law Commission review on taking, making and sharing intimate images without consent is the correct vehicle for legislation? This review is currently expected to report in the spring of 2022 and might make recommendations to expand the list of protections under voyeurism legislation, but even this is not guaranteed.

This simple amendment echoes the up-skirting legislation by seeking to amend the Sexual Offences Act 2003. It also uses the language of the 2019 Act and would require consent to photograph or record breastfeeding without prosecution, ensuring that women breastfeeding are given the same protection. If passed as part of this Bill, it would quickly—in legislative terms—give protection to women who breastfeed, without compromising the Law Commission review, which would have time to consider this change, if necessary, in more depth.

It is important to say that the amendment has the support of the National Childbirth Trust, the La Leche League and the Breastfeeding Network. Those of us in favour of the amendment are pleased that the Government think that it is unacceptable for breastfeeding voyeurism to take place. I thank the Minister for that, but will he say why, if the Government support the principle of the amendment, it would be acceptable to delay its implementation for years, which would be the result of taking the Law Commission route? Why not use the route of the up-skirting legislation, which did not have to wait for the Law Commission? I hope that the Minister will be able to support the amendment.

--- Later in debate ---

I am certainly not saying, in answer to the point made by the noble Baroness, Lady Brinton, that it is acceptable to delay for years. I am saying rather that it is critical that we get this right. If the Law Commission had not started its work or was going to report in five years’ time, it would all be different, but the Law Commission is reporting in this area in a matter of months, and I respectfully suggest that the appropriate way in which to proceed here is to see what it says, and then we can get an absolutely first-class piece of legislation in place. So, with respect, I invite the noble Baroness, Lady Hayman, to withdraw her amendment.

[Baroness Hayman (CB)]

My Lords, I am extremely grateful to everyone who has spoken in the debate and for the support that has been shown, from all sides of the Committee, for taking action to combat a wrong that everyone accepts should not be allowed to be perpetrated. I have got a law degree, and I do not want to be rude about lawyers—and of course I listened with huge interest and respect to what was, if I may say, a very legalistic response, after the warm words and acceptance in principle on the issue from the Minister. He respectfully suggested to me that the best course was to wait for the Law Commission—he said for a few months. It would be a few months, maybe, for the first round of the Law Commission, but a lot more than a few months before we got the possible legislation.

I respectfully suggest to the Minister that there is another interpretation. We could legislate now and, when we have the Law Commission report on the wider issues, and we are looking at all the esoteric—I think that was the perfect word—examples that he gave, we could then put right anything that was wrong. But in the meantime we would have taken action and, in the meantime, on the 80:20 rule, we would have done a great deal to protect women.

Not all women can breastfeed and not all women want to breastfeed, but those who do deserve the protection of the law. With respect to a possible meeting with the noble Lord between now and Report to try to make this a better amendment in terms of drafting—I take his point about purpose, but I think the Committee knows what the purpose is, and we could get an amendment that would do some good. In the meantime, I beg leave to withdraw the amendment.

Amendment 131 withdrawn.

Assisted Dying Bill [HL]

Baroness Hayman Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness Hayman (CB)]

My Lords, it is a great privilege to follow the most reverend Primate the Archbishop of Canterbury and to be able to support my noble friend Lady Meacher, who I believe has brought forward the best drafted and most effective of the four Bills on this subject that I have been involved in in my time in your Lordships’ House.

I was a member of the Select Committee that investigated the Joffe Bill. It was that experience that led me to become a strong supporter of compassionate, structured and safe legislation in this field. I listened—with huge respect of course—to the most reverend Primate, but, when he says that this would not be a kind and infallible system, I have to say that we do not have a kind and infallible system at the moment, and I believe that our legislation would be kinder and less fallible in many areas if we pass this Bill.

I have a specific point on kindness. One of the reasons I became so strongly committed was the experience of going to Oregon and seeing its legislation in place. What struck me most was the number of people who entered the system and got a prescription but never cashed it—the number of people who, because they had the security, the insurance policy and the peace of mind about what would happen if things became intolerable, actually did not need to avail themselves. I think it is 35% of the Oregon cohort that does not follow through. I believe that there are penumbras here: not just the people who go into the system but the people given a terminal diagnosis and know that, if things become unbearable, there is a way out. I believe that comfort goes far wider than the people who actually enter the system.

I have one last point. The most reverend Primate accepted that there is no unanimity of view among people of faith, doctors, lawyers and members of my Select Committee. There is not; there are differences of opinion and they are compassionately and ethically held. But the public know what they think on this issue. They have been consistent on the issue, and I believe we should respect that and support the Bill.

Domestic Abuse Bill

Baroness Hayman Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[Baroness Jolly (LD) [V]]

My Lords, Amendments 46 and 47, in the name of the noble Baroness, Lady Campbell of Surbiton, would amend the new clause in Amendment 45, proposed by the noble Baroness, Lady Lister of Burtersett, to ensure that the definition of “personally connected” in Section 76 of the Serious Crime Act 2015 includes the relationship between a disabled person and their carer, in line with the amendments of the noble Baroness, Lady Campbell of Surbiton, to the definition in Clause 2 of the Bill.

Amendments 45, 46 and 47 sit together, and I hope that the Minister can be persuaded to add her name to Amendments 46 and 47. The new clause proposed in Amendment 45 would align the definition of “personally connected” in Section 76 of the Serious Crime Act 2015 with that in Clause 2 of the Bill. The result is that the offence under that section of engaging in “controlling or coercive behaviour” would apply in relation to members of the same family or people who have been in an intimate relationship, whether or not they live together.

Amendment 46 seeks to ensure that the relationship between a disabled person and their carer is included. This amendment and Amendment 47 in the name of the noble Baroness, Lady Campbell of Surbiton, would amend the new clause proposed by the noble Baroness, Lady Lister of Burtersett, in Amendment 45 to ensure that the definition of “personally connected” in Section 76 of the Serious Crimes Act 2015 includes the relationship between a disabled person and their carer, in line with the amendments from the noble Baroness, Lady Campbell of Surbiton, to the definition in Clause 2.

I also highlight that the term “disability” includes learning disabilities, which is important in this context. Many parents choose to look after their children with a learning disability rather than entrust their care to an organisation. When the child becomes an adult and the parents are older and frail, what had been a loving relationship often becomes tense and fraught, and can lead to violence and abuse. This can apply equally when a person with a learning disability has a carer rather than parents. What started as a positive relationship can turn sour, and the abuse of one party by the other and violence are often the outcome. In this case, with no parents, it is the local authority that has the responsibility to sort the problem out.

This is a good suite of amendments and I am happy to support them.

[Baroness Hayman (CB) [V]]

My Lords, I will speak briefly to Amendment 45, but before I do so, perhaps I may record my concern at the situation described by the noble Baronesses, Lady Campbell, Lady Grey-Thompson and Lady Jolly, in relation to people with disabilities. I hope that the Minister will be able to give some comfort from the Front Bench on what is obviously a very unsatisfactory situation.

On Amendment 45, I want simply to add my thanks to the noble Baroness, Lady Lister, and the supporters of her amendment, both inside the House and those who have campaigned outside it, for this change to the provisions regarding post-separation coercive control. I also express my gratitude to the Minister for listening and, more than that, acting by adding her name to the amendment. Like the noble Baroness, Lady Lister, I have had a tremendously positive response to the news that the change was to be made. I can do no better than to quote from a note I have received from the director of the Daisy Programme in Norfolk, of which I am a patron. She has said, “We continue to witness at first hand the insidious nature of continued domestic abuse post separation and the controlling nature of perpetrators. Retraumatising of survivors is common as they continue to tell, retell and tell once again their stories, leaving little time to begin the process of rebuilding their lives.”

These amendments will support survivors and children who have been deeply impacted. As others have said, these are important amendments that will change people’s lives, and I welcome them.

[Baroness Uddin (Non-Afl) [V]]

My Lords, it is a privilege to take part in this debate. Before I speak to Amendment 45, I want to echo other noble Lords’ sentiments and say how heroic my friend the noble Baroness, Lady Campbell of Surbiton, has been in her undeniable and outstanding leadership. I am delighted to call her a friend. Another incredible champion of people with disabilities is the noble Baroness, Lady Grey-Thompson, who is also a friend. Her words are etched and lie heavily on my heart as someone who has cared for a disabled adult for 42 years. I hope that we can get to a place where we can find some solutions.

I thank and salute my noble friend Lady Lister and her long list of supporters and welcome Amendment 45, which seeks to strengthen the legislation on post-separation controlling or coercive behaviour, making it no longer a requirement that abusers and victims must live together for it to apply. This is an important amendment that will lead to post-separation abuse becoming a criminal offence. I am grateful to the Minister for her personal persistence and advocacy. Many survivors will today express small relief and quiet prayers for the protections to come.

There are many ways in which perpetrators can control the lives of survivors, to devastating effect, whether they live together or not. These include using financial dependency, and the survivor’s desire to protect their children from poverty; societal and cultural pressures; and a lack of belief on a survivor’s part that it is not her fault, that she has not contributed to her partner’s, husband’s, lover’s or family member’s violence or coercive behaviour. Ex-partners may also use cultural references, faith or social norms to continue to torment survivors, whose self-belief and confidence may have been substantially depleted with questions: why did she not leave? Was the decision to divorce or separate right? Was it in the best interests of the children?

I speak from considerable experience, having for years supported women who suffer from controlling behaviour, even after separation and divorce. I wish to single out one incident I witnessed earlier today outside my door of an ex-partner turning up at the survivor’s parents’ home, demanding to see her and her child. They have been divorced for nearly four years. The woman in question was so traumatised and frightened that I had to grab her, get her inside the house and calm her down. Her ex-partner was so obsessed with having the children and seeing the woman that he left only when I threatened him with reporting the matter to the police. Anyway, I do not want to go into any further details.

All survivors will understand the intense fear of the extents to which an angry perpetrator may go, in addition to external means of control: intimidation, threats of violence, and denigration of the mind through the instrument of internalised fear. The perpetrators do not even have to be present; survivors can easily be reached by modern methods. Constant voice, text and video messages can create psychological and emotional havoc by inducing imminent and ever-present danger while the survivor is silenced. This is often destructive to their long-term well-being.

As Surviving Economic Abuse outlines, economic abuse does not require physical proximity. It can escalate, or even start, after separation, creating significant barriers for victims seeking to rebuild their lives. This amendment is needed because abusers often continue to use coercive control after separation, and victims are at a heightened risk of homicide in this period. We all know that lack of access to economic resources can result in a victim staying with an abusive partner for longer and experiencing more harm as a result. Noble Lords will be familiar with the experiences of survivors who face additional forms of discrimination, including black and other minority women, women with disabilities, migrant women and women from LGBT communities, who continue to face serious barriers to protection, safety and support.

Domestic Abuse Bill

Baroness Hayman Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Baroness Hayman (CB) [V]]

My Lords, given the excellent speeches that have already been made in support of these two amendments, I can be brief in supporting Amendment 149. The noble Baronesses, Lady Lister and Lady Burt, and the noble and right reverend Lord, Lord Harries of Pentregarth, have all made a cogent case for aligning the definition in Section 76 of the Serious Crime Act 2015 of those to be protected from coercive control with the much better and wider definition in the current Bill, so that victims of coercive control are protected post separation.

As I said at Second Reading, my interest in this issue arises from my experience as patron of a domestic abuse charity in Norfolk which helps support women and men who have left abusive relationships to rebuild their lives and their confidence. The work it does has made me very aware of the destructive effect ex-partners can have, even from a distance and long after separation.

Together with that experience, as others have said, I am grateful for all the briefing we have received from various organisations and charities. My particular gratitude goes to Cassandra Wiener from the University of Sussex, for having so clearly set out the way coercive and controlling behaviour, particularly—but not exclusively—economic abuse, can continue after the abusive partner has left; indeed, how the act of leaving itself can be a trigger for increasing the abusive behaviour, as the noble Lord, Lord Paddick, so powerfully described in his very brave and moving speech.

The argument that the Protection from Harassment Act 1997 is the appropriate way to deal with a problem that the Government themselves recognise is simply not acceptable. Earlier, reference was made to the need to beware of adding baubles to a legislative Christmas tree. This amendment is no bauble. It goes to the roots of this legislation: the aim that we should provide comprehensive protection for all victims of all forms of domestic abuse from all types of that abuse. I urge the Government to support it.

[Baroness Newlove (Con) [V]]

My Lords, we have heard excellent speeches this evening, so I do not want to cover what has already been so excellently spoken to in the Chamber. I support Amendment 149 and I am very grateful to the noble Baroness, Lady Lister, for bringing this to the Committee. As the Victims’ Commissioner for over seven years, I met many survivors and victims of economic abuse. To sit side by side with someone and listen to their experience of abuse or, if not an abusive relationship, the use of coercive control to persecute them financially is a heart-breaking situation when your hands are tied.

I am very grateful, as many noble Lords have said, for lots of briefing but especially to Surviving Economic Abuse. Its briefing was outstanding, and I would like to highlight just some points as I know it is going to be a long night. One in four women reports experiencing economic abuse after leaving the abuser. In fact, given that economic abuse does not require physical proximity, as we have heard, it commonly continues, escalates and in some cases may begin after separation. This creates a significant barrier to the victim rebuilding their life. This is an horrendous attitude—the way that abusers absolutely pincer their victims.

To help people fully understand, I will quote a case study from Surviving Economic Abuse in support of this amendment. It says:

“Layla was married for over 20 years and has three children. Her husband was controlling and coercive throughout the marriage both economically and emotionally, pressurising her to transfer money to his bank account and forcing her to let him use the credit card she had in her sole name. He ran up debt on her credit card and, after separation, forced her to release hundreds of thousands of pounds of equity from the mortgage. Layla continues to pay debts he has put in her name, including bank loans of £70,000.”


We are not talking pocket money here. These are huge amounts that prevent victims repairing their lives.

It is so important that this amendment is made to the Domestic Abuse Bill as other Peers have covered other sections of the Serious Crime Act. More importantly, this would send a message to other abusers in relationships where a divorce is sought and coercive control carries on and on through the financial settlement while, to the victim’s cost, the debt escalates and escalates. I know this from the personal experience of friends, victims and survivors. We have to ensure that we make this amendment to the Bill to send a message that this is taken seriously, and to empower victims by ensuring that they know that we support them, listen to them and will help protect them from the people who cause them to go into debt.

Assisted Dying Bill [HL]

Baroness Hayman Excerpts

Friday 16th January 2015 Lords Chamber

[The Lord Bishop of Carlisle]

My Lords, very briefly, I support Amendment 13, proposed by the noble Lord, Lord Carlile, and the other amendments in this group.

I note the detailed points made by the noble Baroness, Lady Brinton. Like the noble Lord, Lord Berkeley, I am struggling a bit with them. However, it seems to me that these amendments are generally sensible and important. The arguments in favour have been very well and movingly advanced. They would make this proposed legislation safer, as the noble and right reverend Lord, Lord Harries, suggested.

I shall take this opportunity to point out that our support for these and other amendments does not in any sense signify the Church of England’s support for the overall intention of the Bill. I am sure this applies to other Members of your Lordships’ House. Some suggestion has been made, not least in the media, that our position lacks clarity. Nothing could be further from the truth. We have every sympathy with and respect for—I cannot emphasise this too much—the honourable and compassionate motives that inspire the Bill’s proponents, as the noble Lord, Lord Cormack, indicated.

The church’s stance on assisted dying was made abundantly clear by the General Synod in 2012. When this subject was debated then, not a single member of it opposed a motion to keep the current law. Of course, some individual church members may and clearly do disagree but, to avoid any misunderstanding as we debate these amendments, that remains our corporate stance for reasons of principle and pragmatism that have already been very well rehearsed in this House.

[Baroness Hayman (CB)]

My Lords, reference has been made to the GMC, and therefore I should perhaps draw attention to my interest as a member of that body, although I, of course, speak today purely personally and not on behalf of the GMC.

I want to address two issues relating to doctors. First, I support Amendment 15 on changing from a registered to a licensed medical practitioner, which is an important safeguard and correction.

However, I have severe concerns about Amendment 13. The right reverend Prelate said that he thought it would make the Bill safer for patients. I have to disagree. I think it would make the Bill impractical and restrictive. The reasons for that are partly the reasons outlined by the noble Baroness, Lady Brinton. People who are desperately ill who receive a diagnosis one or two years before their death very often think about moving. They sometimes move to be near relatives or into a care home, but moves even half a mile up the hill, as I learnt recently, can mean the severing of a long-term relationship with a GP practice. It is impractical and unfair to ask people who have moved in these circumstances to rule themselves out of access to the provisions of this legislation.

It is also impractical in terms of doctors themselves. We were taken back to the days of Dr Finlay in many ways by the speeches of the noble Lords, Lord Carlile and Lord Cormack. Very few people these days have a decades-long relationship with a single general practitioner. I am very nervous, because my legal education ended in 1969, of taking on the noble Lord, Lord Carlile, but he spoke about the realities of multiple partners in general practices in the National Health Service today. Certainly, my experience in my new practice is that you will be seen by any one of a number of partners there. However, the amendment says very specifically that the person must have been registered with one of the two doctors,

“for medical care for at least six months immediately prior”,

not at the practice but with that specific doctor. That is very difficult for people to comply with.

Equally, like patients, doctors also move. They move to different parts of the country, and they retire. You can imagine many circumstances in which reading and applying those specific provisions would simply rule out for patients the ability to access this legislation. For that reason I oppose this amendment.

[Lord Harries of Pentregarth]

Would the noble Baroness be willing to accept a different kind of amendment which took into account the situations she mentioned? Of course, she is quite right that people might move from their general practice into a care home, but it seems that it would be very easy to devise an amendment which took account of that. There would have to be perhaps two or more general practitioners who agree over a period of time.

[Baroness Hayman]

I am grateful to my noble and right reverend friend. The difficulty is trying to put this in the Bill, to deal with all the different circumstances that will arise with individuals or with practitioners. I would be much more comfortable with that, because I think we are all on the same page with regard to not wanting someone who has had absolutely no contact with their doctor, because of all the issues which we know arise. However, I would much rather that those sorts of issues were dealt with in guidance, both from the GMC and the Secretary of State. It would then be much more possible to make sure that there would be equality of access for patients.

[Lord Turnbull (CB)]

I will add one point to my noble friend’s argument which is absolutely telling. One can be registered with a GP and never see them for 20 years. You might be a very fit 40 year-old, but you could suddenly get a devastating diagnosis of cancer and wish to talk to your GP. Although you are registered with them, that GP does not know anything about you at all.

[Baroness Young of Old Scone (Non-Afl)]

I will add to that last point, for which I am grateful. I have been a supporter of the principles of the Bill for almost the whole of my adult life, and I have had the same GP for 26 years. Every year I insist that he looks at my living will form, and we then have a very robust argument, because he is against the principle of assisted dying, and I insist that he takes account of my wishes in that living will form on an annual basis. I know that were I to be in a situation where I would require and wish to take advantage of the Bill, were it to become an Act, I would not be in a position where I could expect him to give me that support. We have been very clear with each other over the past 25 years. I do not know what the position of his colleagues in the practice is, but I am abundantly clear that when that point is reached, I will want to have a GP or a specialist consultant who is able to take a good medical history and read my notes, to understand what medical practitioners over the last 25 years have said about me, and to reach a valid professional judgment about whether my wish—I make that point; it is not the GP’s wish or the family’s wish—to take advantage of this provision is based on a good medical prognosis. It is not beyond the wit of the medical profession to do that even if they do not intimately know me. I hope that we will see that in the Bill.

[Baroness Hayman]

I am grateful for both interruptions because they allow me to say what I omitted to say—that the other change as regards the doctor and the practicality occurs when you are registered with a doctor who has a conscientious objection. The other problem is with,

“at least one of whom has diagnosed the terminal illness and treated the person in relation to that terminal illness”.

The person who diagnoses and the person who is giving ongoing treatment are not necessarily the same person. Therefore this clause is dangerously worded at present.

Assisted Dying Bill [HL]

Baroness Hayman Excerpts

Friday 18th July 2014 Lords Chamber

[Baroness Hayman (CB)]

My Lords, I absolutely agree with one aspect of the speech of the noble Lord, Lord Carlile: I too will approach the Committee stage in the spirit of cherishing life and the living.

Today’s debate has illustrated that there is not some enormous divide between those who care about people’s lives and those who do not. Can we agree on one thing: that there is no unanimity on this issue? There is no unanimity between lawyers, between previous Lord Chancellors, between doctors, between people with disabilities, between Christians, between Jews, or, as I believe the noble Lord, Lord Avebury, said, between Buddhists. People of faith can take genuinely different positions on this. I agree with the noble Lord, Lord Carlile, that there is an issue here about the precedent we give to autonomy, to choice and whether we can, as legislators, look at ourselves in the mirror in the morning and say we passed legislation like this without the dire consequences —the road to hell—that we have had described today.

I should have said that I am a member of the General Medical Council, but of course I speak in a purely personal capacity today. Another interest is that I was also a member of the committee so ably chaired by the noble and learned Lord, Lord Mackay of Clashfern. That experience, which I went into not having a settled view on this issue, made me support the Bill. It is my sense that it is possible to find the right balance, to provide compassion without a slippery slope or a criminal’s path. It is difficult in just the same way as when this House chooses to try to balance the needs of security with individual liberty. However, that is what we are here for. With the greatest of respect to the noble Lord, Lord Alton, I do not regret that this debate is taking place in your Lordships’ House and that the legislation will have the line-by-line scrutiny that we know does not happen with Bills in another place. It is right that we should do some of the heavy lifting on the Bill in Committee in order for the Commons to take its part.

The noble Baroness, Lady Brinton, said that she had had to rewrite her speech. I wish she had not pinched mine in rewriting it. I will not say the things that she said, but I will give one quote. I was very struck when I read that wonderful novel Revolutionary Road by a quote that went something like: “He was left standing in the door of his home, dying imperceptibly, as we all are”. But actually that is not right. Some of us are not dying imperceptibly; some of us die in terrible, unbearable physical and emotional pain. I have listened to the stories of some of those people, as well as having read the letters.

I end with the words of a doctor whom I was talking to recently. He told me that he had changed his mind on this subject because he had had experience of a family who had gone to Switzerland. He had changed his mind because, he said, “We have to be able to do better than this for our patients”. I believe that we can do better than this, and it is Parliament’s job to see that we do so.

European Convention on Human Rights

Baroness Hayman Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Irvine of Lairg]

My Lords, my purpose is to dispel some of the many myths peddled about human rights. In fact it is the Conservative Party, not Labour, that can make the strongest claim to credit for the European convention. Its main proponents were Churchill, Macmillan and John Foster, with some Liberal and Labour support. Its principal author was David Maxwell Fyfe, the future Conservative Chancellor, Viscount Kilmuir. The convention was substantially the work of British jurists within a tradition going back to the Petition of Right of 1628 and our own Bill of Rights of 1689.

Britain became the first state to ratify the convention, on 8 March 1951, yet it was not until December 1965 that the then Government accepted the right of individual petitions to the Commission and the compulsory jurisdiction of the European Court of Human Rights at Strasbourg. Then for a long period, until 1993, both major parties were united in rejecting incorporation of the convention into our domestic law. That in itself was extraordinary, because it meant that our citizens could not argue for their convention rights in our own courts but had to take the long and expensive road to Strasbourg.

Then came the late John Smith’s seminal Charter 88 speech on 1 March 1993, committing Labour in government to incorporate. That translated into a 1997 manifesto commitment, and the Human Rights Act 1998, which began its parliamentary progress in this House, followed. Its purpose was to bring home to be enforceable in our own courts the rights contained in the convention. Our courts are of course closer to the traditions of our society, and through their judgments they can make a distinctive British contribution to the development of Europe-wide human rights laws.

To Conservative critics of the Convention and the Act, I recommend the recent short study by Norman and Oborne, Churchill’s Legacy: The Conservative Case for the Human Rights Act. They detail the history and debunk the myths. They emphasise that,

“A large element of the selling power of some British newspapers depends on their ability to break stories about the private lives of celebrities”,

and conclude that,

“it is unlikely that reform of the HRA would be on any political agenda, were it not for the potent advocacy of the most powerful media groups in the country”.

In Chapter 4, “Dispelling the Myths”, they accuse the media of a culture of deception about the Act since the media believe that they have an interest in its destruction because of its protection of privacy in Article 8:

“Any politician who denounces the HRA, however incorrectly, is generally guaranteed a round of applause from the press”.

They say that a politician who argues the contrary, “tends to get pilloried”.

Among the most controversial recent cases are those where the courts have granted injunctions to prevent the press publishing details of the private lives of celebrities. The Prime Minister himself has entered the fray, on the side of the press. Unsurprisingly, he has secured a good press. He said that the judges were creating a privacy law, whereas what ought to happen in a parliamentary democracy is that Parliament should decide,

“how much protection we want for individuals and how much freedom of the press”.

Essentially, the charge is that the judges are usurping the role of Parliament. This is either ingenuous or disingenuous; your Lordships can decide which.

There are two straightforward answers to the charge. First, the judges are under instruction from Parliament in the HRA to balance the right of respect for the claimant’s private and family life against the right to freedom of expression in Article 12, and of course the judges obey. The scales are weighed in favour of freedom of expression because the Act requires the courts to have particular regard to its importance. No other right is given this privileged status. We should remember that in those cases it is often not only the Article 8 rights of celebrities that are at stake but also those of innocent third parties, including children. There is typically no significant public interest in the disclosure of the peccadilloes of actors, footballers or reality television contestants, although that helps to sell newspapers. A prurient interest does not equate to a legitimate public interest. The weight that the courts give to freedom of expression is strongly illustrated by the recent Strasbourg ruling in Max Mosley’s case in favour of the media.

The second answer to the charge is that the Government could introduce tomorrow a freedom of expression and privacy Bill compatibly with the convention if they took their courage in both hands. Members of the other place would undoubtedly show huge interest in such legislation, equalled no doubt only by the inevitable wrath of the tabloids—so your Lordships should not be in the least surprised if no such legislation is ultimately brought forward. Far easier to go on berating the judges, however unfairly, for doing what Parliament has instructed them to do than to take the knock of legislation oneself.

I should not leave this subject without emphasising that the media have gained greatly from the convention and the Act: enhanced protection for journalistic sources; a dramatic reduction in the level of libel damages; and the right to report on a much wider range of court proceedings. However, I emphasise that when impartial courts hold the balance between privacy and freedom of expression, the media cannot expect to have it all their own way.

I move to another recent controversy—votes for prisoners—where misconceptions also abound. We have clear primary legislation in Section 3 of the Representation of the People Act, which prevents convicted prisoners being registered to vote. No other interpretation of Section 3 is possible. Although Section 3 was declared incompatible with the convention by the courts, voting claims brought by prisoners under the HRA were rejected on the grounds that Section 3 was clear and the sovereignty of Parliament must prevail. All that the European Court held was that our blanket ban should be reconsidered. However, as a result of the HRA, it will be reconsidered in the proper forum: Parliament.

Your Lordships should know that our blanket ban has put us out of step with a clear majority of the other states in the Council of Europe, most of whom, including Germany, France, Italy, the Netherlands, Portugal and Spain, allow some or all of their convicted prisoners to vote. In that context, it is surprising that the Prime Minister went as far as to claim that he felt physically ill at the prospect of giving the vote to prisoners. All that was held at Strasbourg was that the blanket ban was disproportionate because it applied irrespective of the length of the sentence or the gravity of the offence, and without regard to whether the prisoner had completed that part of the sentence relating to deterrence and punishment. At any rate, it is now up to Parliament, which will want to consider whether some opportunity to participate in democratic elections could help prisoners’ restoration to the mainstream of society.

Another example is the sex offenders register, a subject on which the Prime Minister and his Home Secretary have become so choleric that your Lordships should worry for their peace of mind. The antidote that I would prescribe is a strong dose of rationality. The Supreme Court recently considered statutory provisions that imposed on certain sex offenders lifelong notification obligations to inform the police of their whereabouts or foreign travel plans. The basic point was that they could not even apply for their names to be removed from the register, regardless of the rehabilitation that they might have achieved over many years. The Supreme Court made a declaration that the provisions were incompatible with the convention in the absence of a procedure that allowed an individual to apply to be taken off the register. It would be for Parliament to determine the criteria for success, when an application could first be made and who would decide. Alternatively, the Government are free, under the Act, to do precisely nothing, wait to see if it is taken to the Strasbourg court, and argue there why any review would always and for ever be inappropriate.

The Prime Minister and his Home Secretary joined in telling Parliament how appalled they were by the decision, with the Prime Minister adding that the decision was completely offensive and flew in the face of common sense, while the Home Secretary questioned its sanity. However, all that the judges were doing was applying the law. Surely, this intemperateness must stop. Respect for the rule of law underpins our democracy. That respect is not a commodity to be marketed away for perceived short-term political advantage. When it is, Ministers undermine respect for the rule of law and diminish both themselves and our democracy.

I greatly look forward to the reply of the noble Lord, Lord McNally, to this debate. On 18 March, the Ministry of Justice announced the establishment of an independent commission to investigate the case for a UK Bill of Rights. Its terms of reference follow the language of the coalition agreement—namely,

“to investigate the creation of a British Bill of Rights that incorporates … all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties”.

So, the European Convention will continue to be a guaranteed floor, but not a ceiling, for the protection of human rights in Britain. I congratulate the noble Lord’s party on these terms of reference. The commission provides an excellent opportunity for his party to put—if this is the correct expression—clear blue water between themselves and their coalition partner. I invite him to take this opportunity to confirm that the continued incorporation of the European convention rights into our domestic law is non-negotiable. I beg to move.

[The Lord Speaker (Baroness Hayman)]

The Question is that this Motion be agreed to.

[Lord McCluskey]

My Lords, before the noble and learned Lord sits down, will he comment on the matter of the judges doing what Parliament instructed them to do? He will recall—

[Baroness Hayman]

The Question has been put. We are now into the debate. The noble and learned Lord could, of course, speak in the gap if necessary, if he is not on the speakers’ list.

Public Bodies Bill [HL]

Baroness Hayman Excerpts

Monday 28th March 2011 Lords Chamber

[Lord Warner]

My Lords, I rise to move the amendment in my name and those of the noble Lords, Lord Ramsbotham and Lord Elton. The right reverend Prelate the Bishop of Ripon and Leeds intended to add his name to the amendment but just missed the deadline for the Marshalled List. I am sure that the House will want to hear his views on this matter at a later stage.

Across the Benches Members of this House are saying that the Government are wrong to seek the abolition of the Youth Justice Board. The same position appertained in Committee, with no speaker supporting the Government and five former Ministers, including three from the coalition Benches, saying that the Government were wrong about this. I will not repeat all the arguments made in Committee other than to remind the House that a series of independent reviews have said that the Youth Justice Board has done a good job, with the PAC recently saying that there was no foundation to the Government’s case for abolition.

The nub of the Government’s argument is that the YJB has done its job and youth justice can be left to local youth offending teams and Ministry of Justice civil servants and Ministers. The five former Ministers made it clear in Committee that leaving this specialist programme delivery work to generalist civil servants who move from job to job carries no credibility in terms of good government. Depending on locally financed YOTs, unaided at this time of severe financial retrenchment, is a recipe for youth justice sinking once again to the bottom of the pile, in terms of priorities, which is why the Youth Justice Board was set up in the first place.

Since the Committee stage, four of us—the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Linklater, the noble Lord, Lord Elton, and myself—had a meeting with the Minister and his colleague, Mr Crispin Blunt, who is responsible for youth justice matters. It would be a masterpiece of understatement to say that this was not a meeting of minds, despite the best endeavours of the noble Lord, Lord McNally, who, throughout this sorry saga, has tried to retain a balanced and helpful stance. Particularly worrying has been the absence of any sensible ministerial response to the incisive questioning of the noble Lord, Lord Elton, on why ministerial powers under the Crime and Disorder Act 1998 for holding the YJB to account are insufficient for discharging ministerial responsibilities to Parliament and the public.

In Committee, I teased the noble Lord, Lord McNally, about falling into bad company. I have to say that the more I learn of the Government’s thinking on this issue, the more it seems not unlike the stories of Richmal Crompton in Just William and the Black Hand Gang. It is at about that level of intellectual competence. In Committee, several Members set out the YJB’s success in reducing reoffending and the entry of juveniles into the criminal justice system. Since then, new figures on reoffending have been placed in the public arena. They show a further reduction in the number of juvenile reoffenders by 0.4 per cent in one year between 2008 and 2009—a number that continued in that downward trajectory throughout 2009.

Alongside these achievements, the YJB has significantly cut the number of young people going into custody. The board’s abolition puts all this at risk. Given my considerable experience in this area, I say that the abolition of the YJB is likely to mean an increase in the number of young people being placed in custody unnecessarily—at great cost to the taxpayer and likely damage to young people.

The Government have totally failed to make the case for the abolition of the YJB and we should ask them to think again by passing the amendment. That is my overwhelming preference, and it is in the best interests of vulnerable young people and of the public purse. However, if it turns out that we are unable to achieve this, the second amendment in the group, Amendment 21B, becomes important, because it prevents the YJB’s functions disappearing into the maw of the Ministry of Justice and, probably in reality, into the maw of NOMS, without any clear focus on youth justice issues. Having a separate agency with two independent non-executives is better than any ministerial warm words, particularly when one realises that the Ministry of Justice has accepted this model for prisons and the Courts Service. We should retain the Youth Justice Board and its name should be removed from Schedule 1. I beg to move.

[The Lord Speaker (Baroness Hayman)]

I have to inform the House that if the amendment is agreed, I cannot call Amendment 21B, by reason of pre-emption.

[Lord Ramsbotham]

My Lords, I rise to speak to the amendment and to echo what the noble Lord, Lord Warner, said about Amendment 21B. I am conscious that one cannot repeat arguments made in Committee. I, too, remember the remarkable unanimity around the Committee.

I am grateful, as before, to the noble Lord, Lord McNally, for the efforts he made to continue the discussion. I am only sorry that I could not attend that meeting, but from what I have heard about it, and from a letter that the Minister wrote to the noble Lord, Lord Elton, which I hope he will forgive me for quoting, I believe that what is at the heart of the Government’s proposal is a fallacy that for years has influenced the consistent failure of the criminal justice system—namely, that policy and operations are one and the same thing, rather than one being the practical deployment of the other. This was brought home to me when a senior official told me that she wished that I would stop talking about strategy. “We don’t need strategy; all we need is strategic direction,” she said. I asked what that meant. “Top down, of course,” she said. That is nonsense. Having something said from the top down does not make it either strategy or strategic direction.