Nationality and Borders Bill

Baroness Jones of Moulsecoomb Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Horam (Con)]

My point is that we should pay regard to opinion but it is rarely mentioned in debates about immigration—almost never, in fact. There is a case for putting forward what the British people think about this, whether you think it is right or wrong. I do not think it is wholly right but, none the less, we have to take it into account. We have eventually to reach a position where the British people are comfortable with the Government’s policies; in my view, that is what the Government are trying to do.

[Baroness Jones of Moulsecoomb (GP)]

I agree that public opinion is incredibly important but, at the same time, we are meant to be leaders; even here, we are meant to lead. Quite honestly, if you asked the British public, they would probably want hanging back; that is still very popular in some parts. Then, of course, there has been a lot of scaremongering by right-wing groups of all kinds, including parts of the Tory party—the ERG and so on—that have misrepresented a lot of what is happening with the refugees who are crossing the channel.

I am one of those people who agree with the noble and learned Lord, Lord Kerr—actually, is he learned? No, sorry—that a lot of these amendments are picking at a scab and there is no point in doing that because it just makes it worse. We have to get rid of Clause 11 because it just makes life harder for refugees and, as we have heard from the noble Lord, Lord Paddick, we are not—

[Noble Lords]

Too long!

[Baroness Jones of Moulsecoomb (GP)]

Sorry. I disagree with the noble Lord.

[Lord Horam (Con)]

I think there has been plenty of leadership on this issue over the years. People who have supported a pro-immigration policy—or a relaxed immigration policy, whatever you like to call it—have been pretty vociferous over the years; they have not been quiet. We have known what they think. There has been lots of leadership. Leadership is an issue at the moment but I had better not go too far into that. None the less, the people who support an expansive and comprehensive immigration policy have been vociferous; it is the people who are against it who have had their views ignored.

I read a book about Dagenham the other day, written by a Labour activist, which pointed out the comprehensive effect of immigration in Dagenham over a 10-year period. It went from being 85% white British to less than 50% white British and the local joke was whether if you went into a shop anyone there would speak English. People appealed to the Labour Party, because it was the Labour Party that introduced these policies, and were ignored. Dagenham, a long-standing Labour seat, nearly voted Tory in the last general election—and would have done, if not for the Brexit vote—because people had been ignored on the issue of immigration. For them, immigration had simply gone too far, too fast.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, this part of the Bill has a very simple purpose: it is designed by the Government to make life harder for refugees. The two-tier refugee system is designed to give the illusion of there being a proper way of being a refugee, but it will inflict huge suffering and injustice on desperate people.

It is probably not the normal tactic to plan what we are going to do next in front of the Government Front Bench, but although I applaud the intentions of noble Lords who tabled the 16 amendments to the clause, the only way is to take it out of the Bill. It is so vile, so obnoxious, that it really should not be in here.

This has not been mentioned very much but we must remember that, to some extent, we have a moral duty to take refugees. A lot of these refugees are coming from countries we have invaded, or where we have interfered or done all sorts of things, whether it is burning too much fossil fuel, causing climate change, or destabilising their Governments. Please can we remember that there is a moral duty? It is all very well referring to population density and so on, but we owe these people and we should never forget that.

[Lord Rosser (Lab)]

My Lords, I shall resist the temptation to offer a view on what public opinion is. What I do remember is that a lot of people expressed a view on what public opinion was over climate protesters and people who threw statues into the water at Bristol, but when cases came up before a jury, they reached some very interesting decisions on guilt or otherwise. That suggests that some of those who profess to know what public opinion is may not necessarily be right when the public have a chance to hear the arguments presented to them and are then asked to make a decision.

Clause 11 is about differential treatment of recognised refugees and its impact and implications. We believe that it contravenes the 1951 refugee convention. It sets a dangerous precedent by creating a two-tier system for refugees, and it is also inhumane. Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim—contrary to the 1951 refugee convention, of which Britain was a founding member.

Under the clause, only those refugees who meet specific additional requirements will be considered group 1 refugees and benefit from the rights currently granted to all refugees by the refugee convention. Other refugees who are not deemed to meet those criteria will be designated as group 2 refugees, and the Secretary of State will be empowered to draft rules discriminating against group 2 refugees with regard to the rights to which they are entitled under the refugee convention, as well as their fundamental right to family unity. The different ways in which those two groups could be treated is not limited in any way by the Bill. Clause 11 does, however, provide examples of ways in which the two groups might be treated differently, even though they are nearly all recognised as genuine refugees. Those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees. The clause goes on to set out how the length of limited leave, access to indefinite leave, family reunion —that is, whether family members, mainly women and children, are entitled to join them—and access to public funds are likely to become areas for discrimination against group 2 refugees.

The government policy paper, the New Plan for Immigration, proposed that instead of fully fledged refugee status, group 2 refugees will be granted “temporary protection” for a period of no longer than 30 months,

“after which individuals will be reassessed for return to their country of origin or removal to”

a safe third country. Temporary protection status

“will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution”—

in other words, a state, deliberately created, of complete uncertainty over their future for group 2 refugees.

Clause 11 would therefore make a significant and unprecedented change in the law, resulting in the UK treating accepted refugees less generously, based on the journey they have taken to reach the UK and the timeliness of their asylum claim. This attempt to create two different classes of recognised refugee is surely inconsistent with the refugee convention and has no basis in international law. The refugee convention, which was enshrined in UK law in 1954, contains a single unitary definition of “refugee”. It defines a refugee solely according to their need for international protection because of feared persecution on the grounds of their race, religion, nationality, membership of a particular social group or political opinion. Anyone who meets that definition and is not excluded is a refugee and entitled to the protection of the refugee convention.

The Commons committee considering the Bill heard in evidence from the United Nations High Commissioner for Refugees’ representative to the UK that this clause and the Bill were inconsistent with the UN convention and international law. If the Government disagree with that—an issue raised by my noble friend Lady Lister —no doubt they will spell out in some detail in their reply their legal argument for saying that the clause does comply with the convention and international law.

This is, however, not just a matter of law but of fairness and humanity. By penalising refugees for how they were able to get to the UK, the Bill builds walls against people in need of protection and shuts the door on many seeking a safe haven. Most refugees have absolutely no choice about how they travel. Is it really this Government’s intention and desire to penalise refugees who may, for example, as a matter of urgency, have had to find an irregular route out of Afghanistan? Are the Government saying that people are less deserving if they have had to take a dangerous route to our shores? Is an interpreter from Afghanistan who took a dangerous journey to our shores less deserving than a refugee who was lucky enough to make it here on one of the flights out of the country?

The Government acknowledge that such journeys are very dangerous and sometimes fatal, yet they do not seem to appreciate the compulsion—that the alternative of not doing so is even worse—which drives people to make such journeys. If people truly had a reason to believe that they would be safe where they are, they would not make the journey. Simply making the journey more dangerous or the asylum system more unwelcoming will not change that. Of the first 5,000 people who came in 2020 by boat, well over 90% were deemed by the Home Office to be eligible to apply for asylum: they were genuine asylum seekers. They were not here illegally—but they will become illegal if the Bill is enacted.

Penalising people for how they arrived in the UK has particular implications for already vulnerable groups of refugees such as women and those from LGBT communities. Women are often compelled to take irregular routes to reach safety, as we see only too clearly in Afghanistan. There are simply no safe and legal routes. Under the proposed changes, however, women who arrive irregularly, including through a safe third country, will be penalised and could be prosecuted, criminalised and imprisoned. The same obstacles will apply to those from LGBT communities.

Unless the Government can provide safe routes, penalising people for making unsafe journeys is simply inhumane, although, even then, not everyone would have the time or ability to access a safe route, even if one existed. By not providing safe routes, the Government are also fuelling the business model of the people smugglers they claim their proposals will destroy, and then penalising the victims they have had a responsibility for creating. The Conservative-led Foreign Affairs Committee, of which the Home Secretary was then a member, warned in 2019:

“A policy that focuses exclusively on closing borders will drive migrants to take more dangerous routes, and push them into the hands of criminal groups”.


The Government’s impact assessment warns that increased deterrence in this manner

“could encourage these cohorts to attempt riskier means of entering the UK.”

As has been said, Clause 11 also says that group 1 refugees must have

“come to the United Kingdom directly from a country or territory where their life or freedom was threatened”.

In other words, the Government are setting an expectation that, to be recognised as a refugee supposedly deserving of the support usually afforded, the UK must be the first safe country in which they have sought asylum. Commenting on the Bill, the United Nations High Commissioner for Refugees said:

“Requiring refugees to claim asylum in the first safe country they reach would undermine the global, humanitarian, and cooperative principles on which the refugee system is founded.”


It was pointed out in oral evidence to the Joint Committee on Human Rights that it was unlikely that

“any country close to the main countries of origin of refugees would have ever considered signing a convention if that meant that they would assume total and entire responsibility for all the refugees.”

In addition, when the refugee convention came into being in the early 1950s, there was little or no commercial air travel, so any refugee reaching this country would have to have crossed land borders from safe states. Yet there was no view then that such a refugee should be seen—as under this Bill and the Government’s interpretation of the refugee convention in international law—as a criminal liable to up to four years in prison and to being sent back to France, and with any claim for asylum being regarded as inadmissible.

Even within Europe, most of the countries that refugees pass through on their way to the UK already host significantly more refugees and asylum seekers per population than the UK does. According to the Home Office’s own statistics, the UK is 17th in terms of the numbers it takes, measured per head of population. Unless safe routes are developed, all that will happen is that there will be an increase in dangerous crossings, because that will be the only way in which people can reach the United Kingdom.

As it is, France takes three times more asylum seekers than the UK, as does Germany. Global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. As my noble friends Lord Griffiths of Burry Port and Lord Coaker have pointed out, most refugees are hosted in developing countries and the UK receives fewer asylum applications than most other European countries. Under international law, the primary responsibility for identifying refugees and affording international protection rests with the state in which an asylum seeker arrives and seeks that protection.

Clause 11 sets out a non-exhaustive list of the ways in which refugees who arrive irregularly and become group 2 refugees may be treated differently. The Explanatory Notes to the Bill state that the purpose of this is

“to discourage asylum seekers from travelling to the UK”,

and to encourage

“individuals to seek asylum in the first safe country they reach after fleeing persecution.”

It is not clear, since the Government have provided no explanation, how the stated aim will result from the policy; perhaps the Government in their response will provide that explanation.

Evidence from many refugee organisations suggests that refugees seek asylum in the UK for a range of reasons, such as proficiency in English, family links or a common heritage based on past colonial histories. In addition, refugees do not cite the level of leave granted or other elements of the asylum system as decisive factors. The Home Office’s own study from 2002—I do not think there has been one since then—noted that there was little evidence that respondents seeking to come to the UK had a detailed knowledge of UK asylum procedures, benefit entitlements or the availability of work in the UK. There was even less evidence that the respondents had a comparative knowledge of how these conditions varied between different European destination countries.

Given that individuals have little knowledge of the asylum systems of the countries they end up in, it is not clear that differential treatment will dissuade individuals from coming to the UK via safe countries. However, what the Government are proposing will certainly result in a refugee population that is less secure, and it will punish those who have been recognised through the legal system as needing international protection, such as women and girls fleeing the Taliban or Uighurs fleeing genocide in China.

The Explanatory Notes also state that 62% of asylum claims in the UK up to September 2019 were from people who entered irregularly. This means that the policy intention is to impose strictures on the rights and entitlements of the majority of refugees coming to the UK, even though we take fewer than comparable countries. Those penalties would target not just those who have entered the UK irregularly or have made dangerous journeys but all those who have not come directly to the UK, regularly or irregularly, from a country or territory where their life or freedom was threatened, those who have delayed claiming asylum or overstayed, and even those who arrive in the UK without entry clearance and who claim asylum immediately.

Nationality and Borders Bill

Baroness Jones of Moulsecoomb Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

[Baroness Altmann (Con)]

My Lords, I congratulate the noble Baronesses, Lady Lister, Lady Ludford and Lady Bennett, and the noble Lord, Lord Woolley, on laying this amendment. I was not familiar with this issue until it was brought to my attention, but I hope that my noble friend on the Front Bench will be able to take it seriously and address it.

I understand that the British Overseas Territories Act 2002 granted British citizenship to Chagossians who were resettled, but only if they were born in the 13-year window from 1969 to 1982. This has left families divided. For example, Jean-Paul Delacroix was born in 1968, and is the oldest of his siblings. At the age of 64, he wants, but cannot obtain, British citizenship; his siblings can. Having been refused, he is now here illegally and cannot even work to support himself.

In 2017, my honourable friend in the other place, Henry Smith, introduced a Private Member’s Bill—which has still had only its First Reading—and then laid in the other place the amendment to the Bill that has been referred to by noble Lords. As has been said— I find it difficult to understand their argument—the Government’s rationale for rejecting Chagossians’ right to British nationality relies on the cause of the injustice while refusing to correct it. Having forcibly resettled 3,000 individuals at the time, the injustice seems to be being compounded by refusing the small number of people who want, and I would argue deserve, to be in receipt of citizenship that opportunity. This Bill represents a chance for the Government to act on a long-standing injustice.

Amendment 11 would correct the nationality law consequences of exiling the Chagossians. Only those born there or born in that 13-year window can currently claim citizenship, but the amendment in the name of the noble Baroness, Lady Lister, would give the opportunity to all those who were born there. The five- year, time-limited window tries to address the Government’s concerns. Like my noble friend Lord Horam, I understand those concerns, but the Chagossians represent a unique case. It is hard to see this setting a precedent. I urge my noble friend the Minister to consider this concession before Report.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, my noble friend Lady Bennett of Manor Castle signed the amendment and has asked me to speak in her place as she is unable to be here.

This is obviously a 50 year-old injustice, inflicted by the UK—by the Foreign Office, as the noble Lord, Lord Horam, suggests, so it might have been good to have a Minister from the Foreign Office here to answer our points. What was done to the Chagos Islanders—deprivation of their lands, dispossession of their community, chaos brought to individual lives—was not limited to one or two generations; it has gone on and on. True reparations would involve the right of return. This is not special circumstances or special treatment. This is justice that we can deliver, albeit very, very late. Simple justice ensures that we take responsibility for people whose lives we took control of without their consent. I hope the Minister can take this back and ensure that it becomes part of the Bill.

[Lord Ramsbotham (CB)]

My Lords, I declare my interest as a founder member and, like the noble Baroness, Lady Whitaker, a vice-chairman of the Chagos Islands All Party Parliamentary Group. Having once had the pleasure of meeting the Chagos Islanders based in Mauritius, I rise to strongly support this amendment. As the noble Baroness, Lady Lister, and the noble Lord, Lord Horam, have explained, this issue is an international scandal for which the Government are entirely responsible.

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I will listen with care to the Minister’s response, but the accompanying factsheets of this Bill and the answers from Ministers to date do not seem to provide the necessary substantial evidence that there is a widespread problem which needs fixing; nor do they yet provide the reassurance that such new powers are proportionate or necessary, given the significant concerns that they cause among many, particularly minority groups. I hope that the Minister can reassure us with some clear evidence of the number of cases we are talking about and why it is that current powers are inadequate.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have been very pleasantly surprised to see the level of public anger that has been expressed against Clause 9. People are rightly absolutely furious to learn that there is a two-tier system of citizenship in this country, where if you have a second nationality you are at risk of the Government withdrawing your British citizenship. That is pretty grim. However, it is concerning that some people are suggesting this is something new. It is not new; it is already the law that dual citizens can have their British citizenship revoked with the very wishy-washy legal test of it being conducive to the public good.

That is why my noble friend Lady Bennett of Manor Castle has tabled Amendments 32 and 33. These will revoke the power of the Government to remove people’s British citizenship unless their citizenship was obtained by fraud or deception. Clause 9 extends the power, but simply defeating Clause 9 will not remove the power. I hope that we can work with noble Lords to remove the power on Report to eliminate this two-tier system of citizenship.

While we are discussing numbers, since 2006 the legal website Free Movement has found that at least 464 people have been stripped of their British citizenship. For comparison, in the 30 years before 2003 no one had been stripped of citizenship. So much for transparency —this could be discovered only through research, as the Government do not provide any sort of regular reporting on the figures. I ask the Minister if the Government will start doing that, so we can keep track and be fully aware of what they are doing.

[Lord Blunkett (Lab)]

My Lords, reference has understandably been made to one of the Acts which came to fruition when I was Home Secretary, and I do not resile from that. I speak this afternoon because this is a critically important debate, and the contributions so far have been both informative and enlightening.

Amendment 28 from the noble Lord, Anderson, has a great deal of merit. I say to the noble Lord, Lord Moylan, for whom I have the most enormous respect and good will from working together on a whole range of other issues, that simply going back to day zero is not necessarily the best answer for the solution we are seeking. If we could find a way forward on Report that takes away the genuine fear from millions of people who believe—erroneously, but they believe it—that Clause 9 as drafted and the implementation of further measures will put them and their families at risk, then we will have done a good job in clarifying the situation.

To put things in perspective, the reason that there was a change from the early 20th century onwards has a great deal to do with the nature of dual citizenship, the way in which global movements have changed quite dramatically and the consequences of global franchise terrorism, which did not exist before. Our main threat, as we all know, up to the beginning of this century, was seen to be from the conflict in Ireland.

To be fair to the Minister, an effort to try to bring the present situation up to date is understandable, but the way it is being done is not. I do not think that the 2002 legislation, implemented in 2003, actually went too far. It was done on the back of the attack on the World Trade Center and beyond, and it was necessary to take into account the dangers that were foreseen and the people who were known to be a danger to our country. I thought that the measures taken at the time seemed to be proportionate. We can debate whether they were or were not, but it is absolutely clear that simply going further and further without justification is not appropriate in our democracy. A step back and a reflection on what it is we are trying to achieve, and why, would be beneficial.

By the way, I do not consider that the measures I was involved in were about punishing anybody. They were about protecting people from those embedded in the community who were no longer committed to our democratic society; in other words, those who had forfeited this part of their dual citizenship—citizenship of our country—because of the actions they took or were prepared to take. These were the actions of individuals, not actions imposed by government.

Let us try, if we can, to get this right on Report. If we can do that, we will take away that fear, which I think is the main reason why we should remove Clause 9.

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[Baroness Ludford (LD)]

My Lords, as a member of the Joint Committee on Human Rights, I agree with the noble Baroness that we have done good work on the Bill. On a more serious note, perhaps I may say how much we appreciate the chairmanship of the right honourable Harriet Harman MP, whose recent bereavement has saddened us so much.

I will speak to both Amendments 30 and 31. As has been said by other noble Lords, Clause 10 amends the British Nationality Act to introduce new requirements for the registration of a stateless child—a child born in the UK—and could make it even more difficult for them to acquire British nationality, to which there are already significant hurdles. I could not agree more with the noble Baroness, Lady Lister. Why should it be a problem that children are becoming stateless and ceasing to have the security of nationality?

Under Clause 10, the Home Secretary has to be satisfied that the child is unable to acquire another nationality. That puts that child in the position of having to prove that they could not reasonably have acquired another nationality. The policy rationale seems to be a suspicion that parents are wilfully causing their child’s statelessness—the culture of disbelief that the noble Baroness, Lady Lister, referred to. As colleagues and the JCHR say, it is difficult to see how the best interests of the child, as required by the 1961 UN Convention on the Reduction of Statelessness, are served by the new test in this provision. How is it in that child’s interests to be left stateless?

Indeed, asserts the JCHR, Clause 10

“risks punishing the child for a perceived failure”

on the part of their parent or carer, which is obviously through no fault of their own. However, the UN convention does not impose a requirement on the parent to exhaust all avenues to seek the citizenship of another state. So Clause 10 could move the UK away from the convention. I was interested that the noble Baroness, Lady Lister, quoted ILFA and the Bar Council as saying that they do indeed think that this is a contravention of the convention, and I can see why. Amendment 30 is an attempt to move the UK back towards the intention of the convention by saying that British citizenship could only be withheld

“where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles.”

Amendment 31 aims to make the best interests of the child central to the decision-making.

Finally, in addition to the risk of alienation from our society of individual children, it cannot be in the interests of British society as a whole for young people born here to be excluded from sharing citizenship and thus rootedness in their community.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support the amendments and the proposal that Clause 10 should not stand part, and my noble friend Lady Bennett of Manor Castle has also signed them. We should be making it as easy as possible for children to obtain a nationality if they are already stateless. Quite honestly, who dreams up these cruel clauses at the Home Office? Do they not have a heart when they are writing these things? Do they not understand the impact that they can have on children through no fault of the child? The decision should be made purely in the best interests of the child, as provided by Amendment 31. I hope that the Government change course and make this as easy and straightforward as possible. People outside are looking in and are judging this to be cruel, unpleasant and perfectly horrendous.

Police, Crime, Sentencing and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness O’Loan (CB)]

My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, and the noble and learned Lord, Lord Thomas, for tabling this amendment.

Briefly, a duty of candour would bring about a change of mindset and culture by requiring openness and transparency about what has happened in investigations. It would lead to a more efficient deployment of resources, which would have a beneficial impact on the public purse. It could very much help to contradict allegations of police corruption and will grow confidence in the leadership of the police service because there would be a statutory obligation of openness and transparency, and therefore an assumption there would be compliance with the law rather than a suspicion of cover-up or, even worse, corruption. The amendment is framed to protect all necessary matters but to enable a different positive approach to the delivery of policing. I support the amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I welcome that the opposition is united in support of this amendment.

The police have failed to own up to many of their mistakes. I personally have experienced police evasion, police spying and police deceit. It beggars belief that there is no duty of candour on our police force already. It actually imposes their own idea of what the law says and this is completely wrong, so I very much support this amendment.

[Lord Paddick (LD)]

My Lords, as a former police officer, I must tell the House that leaving the failure to abide by such a duty of candour to the police misconduct process, as the Government are asking us to do, is inadequate, as the decision on whether to investigate or take misconduct proceedings will be left in the hands of the police themselves.

If it is in the interest of the police that something is covered up, they will not investigate and they will not take action against the officers responsible. As the noble Baroness, Lady O’Loan, has just explained, her experience of the inquiry into the Daniel Morgan murder demonstrates beyond reasonable doubt the need for this amendment, and we support it.

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[Viscount Hailsham (Con)]

My Lords, I rise to support the Government on this matter. It rather caught me by surprise that I was going to but, having studied the amendments with some care, I am on their side. As regards Amendment 116, these provisions are a serious improvement on what went before. I am bound to say that I was very uneasy with what went before but Amendment 116 addresses some of the concerns. I have two drafting points to make, which could be addressed in the House of Commons if the Government were so minded.

First, I absolutely agree with those who worry about the word “significant”. “Significant” is pretty trivial; it is not “substantial” or “serious” and, speaking for myself, I rather hope that the Government substitute “substantial” or “serious” when the Bill gets to the House of Commons.

My second point concerns proposed new subsection (2ZC). Here, I do not think that the Government have gone far enough, because what is being contemplated in that provision as it stands—I am sorry, I simply do not agree with the noble Lord who spoke from the Opposition Benches on this—is a total inability to carry on the work in the vicinity of the noise. But we should also address circumstances where there is a considerable inconvenience to ordinary citizens, which takes me to my fundamental point: of course demonstrators have the right to demonstrate, but ordinary citizens also have rights to go about their ordinary business, to work, to enjoy reasonable tranquillity and to expect others to respect that. It seems that the law has gone too far in favour of a demonstration, and that is very unfortunate. On the whole, I therefore support the Government in this matter.

It is true that if I was drafting this thing, I would have done it slightly differently. I agree with the noble Lord, Lord Coaker, about unease. What does unease mean? The noble Viscount, Lord Colville, makes the same point and I agree. I also agree on the concept of not being able to carry on proper business. That is slightly doubtful to my way of thinking as well. However, on the whole, although I came initially to think these things had gone too far, I now think that the Government are broadly speaking right in trying to bring about a better balance between the rights of demonstrators and ordinary citizens.

[Baroness Jones of Moulsecoomb (GP)]

Could I just mention to the noble Viscount, Lord Hailsham, that these are ordinary people who protest? These are people who quite often just do not agree with the Government. I support a lot of protests that happen at the moment; there are sometimes protests that I do not support, but I support those people’s right to protest. On noise, I agree completely with the noble Lord, Lord Coaker. How do the Government seriously think that protest is going to happen without noise? That is a fundamental part of it, whether it is drums, chanting or singing, or just talking through a megaphone. These provisions really are so oppressive. I have attached my name to Amendments 122, 133 and 147. These clauses should be deleted from the Bill. They are repressive and plain nasty, and they really have to go.

[Lord Hain (Lab)]

My Lords, I have added my name to the amendments in this group standing in the name of the noble Lord, Lord Paddick, particularly those related to striking out Clauses 56, 57, 58 and 62. Briefly, in my view the Bill represents the biggest threat to the right to dissent and non-violent protest in my lifetime. It is deeply reactionary. It is an authoritarian attack on the fundamental liberties of our citizens.

If enacted in past generations, it would have throttled the suffragettes and blocked their ability to rattle Parliament’s cage to secure votes for women. It would have prevented antifascists stopping Mosley’s bullying, anti-Semitic blackshirts at Cable Street in the East End of London in 1936. It would have thwarted anti-apartheid protests that I led, in 1969 and 1970, which successfully stopped all white South African sports tours—a success which Nelson Mandela, then on Robben Island, hailed as a vital stepping stone in the ultimate defeat of apartheid. It would have prevented the Anti-Nazi League protests that stopped a resurgent and anti-Semitic, Islamophobic and fascist National Front in its tracks between 1977 and 1980, and in the early 1990s, similarly, the BNP. If Boris Johnson and Priti Patel want to be on the wrong side of history, the Bill is certainly the way to do it. I hope that this House will resist them.

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[Lord Rosser (Lab)]

We have amendments in this group, and I will refer also to the new government amendments. I will try to be brief since I do not wish to test the patience of the House, but I have a bit to get through. In that context, I congratulate the Minister on the quite enormous stamina which she has shown so far. I have to admit that it is way in excess of my stamina for this kind of thing.

We oppose the group of new government clauses on protest. In our view, they should not be added to the Bill, which already contains government proposals in relation to protests. The Bill has been in Parliament for some 11 months. However, these sweeping, significant and further controversial powers from the Government have not been looked at for a single minute by the elected House, which is normal practice in relation to controversial measures. In this House they have had just over one hour’s consideration, after midnight at the end of Committee, which meant, in effect, that the overwhelming majority of noble Lords were denied the opportunity to participate. We have now started to debate them here on Report at 9.50 pm and have been told that Report has to be completed tonight, whether before or after midnight. This is, frankly, an outrageous way to legislate. Sometimes a Bill needs late additions to respond to events that have to be addressed immediately. However, the Government did not apply this approach to abusive and intimidating protests outside schools and vaccine centres. Instead, this House compelled them to do so last week.

We support increasing sentences for those who protest dangerously by blocking motorways. This is also likely to cause a clear risk to life, and we were all aware of ambulances being impeded last year when motorways were obstructed and of members of the public being unable to complete time-critical journeys in the timescale required. Our Amendment 150A to government Amendment 150 would apply these increased sentences where they should actually be targeted: not at every road and highway across the board but at wilful obstruction of the motorways and major roads in the 4,300-mile strategic road network—SRN—at the core of our national transport system. Instruction of the SRN results in the most disruption due to volume of traffic, a lack of alternative routes and the difficulty of getting off such a major route because of infrequent junctions, for the large amounts of traffic obstructed. Our amendment would also largely prevent the higher penalties applying to obstruction of a grass verge or pavement, which may be interpreted as part of a highway.

The Government’s proposed locking-on amendment provides an exceptionally low threshold for a broad offence. It can be triggered by an act that is capable of causing disruption to two people. Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services is not convinced of the need for this power. Its report on balancing protest powers states that

“most interviewees did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”

The reality is that powers already exist for dealing with lock-ons. What we should be looking at is proper guidance, training and, as the inspectorate raised, improving our use of existing resources and specialist officers.

Our Amendments 160A to 160C are based on recommendations of HMICFRS, including consolidating police guidance on public order in one place and keeping track of national and local needs for specialist officers. These are examples of what could have been debated and worked on, if these proposals had been given proper scrutiny time, to find the best way through, but this House has not had that opportunity. I will make a reference to suffragettes: since locking on was used by the suffragettes, I hope that the Government are not going to tell us that it emerged as a tactic for the first time between Second Reading and Report, and that they had no opportunity to bring forward carefully drafted legislation instead of the rushed, broadly drafted power now in front of us.

Government Amendments 151 to 153 on obstruction of major transport works and key infrastructure are overreaching and unnecessary, as there are already existing public order powers that can apply to these situations. Amendment 151 will have an impact particularly on environmental protesters. Frankly, we have reached a sorry state of affairs when we legislate still further specifically against those concerned about the proven threat of climate change and its impact on our way of life and that of our children and grandchildren, and the tardy action on environmental issues. As the Prime Minister himself once committed to lying down in front of the bulldozers in opposition to a third runway, one wonders how much thought he has given to these widely drawn new powers.

We are opposed to the new stop and search on suspicion powers in Amendment 154. We have concerns over their disproportionate use in relation to black and minority ethnic groups and those groups’ level of trust in the police—a problem that we have not faced up to in other uses of stop and search; we also have concerns over how widely the powers are drawn.

It is, though, the final two powers—on suspicionless stop and search and serious disruption prevention orders—that we believe are the most extreme and pernicious. Suspicionless stop and search is a power that, until now, we have used to target serious violent crime and terrorism. These new government clauses would replicate that power to target peaceful protests. Where the power is used, it would permit any member of the public near a protest to be stopped and searched without cause and without suspicion.

The second of the final two powers—serious disruption prevention orders, which can be made without a conviction—are, in effect, essentially protest banning orders. HMICFRS has said that it believed that protest banning orders

“would neither be compatible with human rights legislation nor create an effective deterrent.”

Like serious violence prevention orders, serious disruption prevention orders can be made using inadmissible evidence; they can be extended indefinitely; and breaching them is a criminal offence with terms of imprisonment attached.

These final two powers are overreaching, unwarranted powers which affect the rights of the British public. They should most certainly not be included in the Bill. The Government are trying to force them in through the back door, without full and necessary parliamentary scrutiny, including by this House.

The reason cannot be lack of parliamentary time to provide such full scrutiny—the Commons Chamber finished at 3.30 pm last Wednesday, following the Prime Minister’s performance at PMQs. We cannot support any of these last-minute, rushed and ill-thought-through broad powers in this group of new government amendments, with the exception of approving the increased sentences for wilfully obstructing motorways and major roads.

The absolute priority for us has to be opposing the Government’s suspicionless stop and search and the serious disruption prevention orders being put into statute. These, however, are down as the last new clauses in this group. Frankly, it is already quite late, and we ought to seek to have these votes as soon as possible, to ensure that as many noble Lords as possible can cast a vote.

I conclude by simply referring to what my noble friend Lord Blunkett wrote in April last year:

“Protest might be inconvenient for politicians, but it acts as a pressure valve, allowing citizens to express their views and vent frustrations that could otherwise boil over … If we suppress protest, we could see more anger towards institutions including the police, the judiciary and parliament.”


That is the direction in which we think the Government are heading with these new protest clauses.

[Baroness Jones of Moulsecoomb (GP)]

I shall speak briefly, because I too want to get to the votes. Despite government claims to the contrary, these are draconian laws that are part of a wider assault on our democracy. We have a Government who are passing rules for us but not acting according to those rules themselves. The police protect the powerful, while getting more oppressive powers to use against the voiceless. This is an autocracy, not a democracy. The Government know that they will face bigger and more vocal protests while they get on with their dog whistle policies, which fail at the moment to distract from the terrible impact of their politics.

There will be a lot of climate change protests in future—I can see myself getting arrested, perhaps more than I have so far. Climate change is the biggest threat to human civilisation. It is an existential threat, and this Government are not acting fast enough.

The Government claim to speak for ordinary people, but it is ordinary people who protest on the streets, and the Government do not speak for them anymore; they do not speak for the great British public, because the great British public find the Bill and these late amendments offensive. The Greens here will be voting against all of these late amendments. We will not support the Labour amendment on the obstruction of the highway, only because it opens the door to the Government bringing back their original amendment. I just hope that the Government listen.

[Lord Carlile of Berriew (CB)]

My Lords, the noble Lord, Lord Rosser, gave an excellent speech in opposition to these government amendments and in support of other amendments tabled, and I have little to add to it.

I want to say a word or two about stop and search without suspicion. At one time, every year in London, about 180,000 people were stopped and searched without suspicion under the Terrorism Act. It caused tremendous anger and offence to those who were searched, particularly to those groups who fell into the broad definition of tropes used by police officers to decide who to stop and search. That was stopped. Interestingly, the provisions of Section 44 of the Terrorism Act, as amended, now provide that an authorisation may be given for stop and search without suspicion by an assistant chief constable or above—a more senior officer than in this situation—and only if the person giving the authorisation

“considers it expedient for the prevention of acts of terrorism.”

The Terrorism Act stop and search power is there for the prevention of actual acts of actual terrorism which kill actual people.

The dilution of without-suspicion stop and search powers is a menacing and dangerous measure. I urge the Government to recognise that it is disproportionate to have a lower level of officer allowed to give an authorisation to stop and search basically middle-income, middle-class, middle-educated people who have strong feelings about the environment, who are not going to commit acts of terrorism but will just be a pretty awful nuisance—and that of course has to be dealt with in this Bill. It is disproportionate, and the Government should think twice about it.

Police, Crime, Sentencing and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

I look forward to the Minister’s response and urge them to strengthen the democratic process underlying the potential rollout of SVROs. However, if the Minister cannot reassure the House about Parliament’s role in relation to the pilot, I will want to test the opinion of the House—and this has changed—on Amendment 95A, rather than Amendment 95B. If successful, Amendment 95B would become consequential. These two amendments are very much interlinked and you could say it is arbitrary which one we vote on. To explain, if the Minister cannot satisfy the House, we will have to test the opinion of the House.

[Baroness Jones of Moulsecoomb (GP)]

As a Green, I am very concerned about the Government undermining the doctrine that police on these islands gain their authority from the consent of the governed. Overuse of stop and search powers has deeply undermined community consent in many areas of the country. We worry all the time about the police being constantly distrusted. That is no wonder, especially with a measure such as this. There are racial and socioeconomic disparities in who gets targeted by the police—we cannot avoid that. These government severe violence reduction orders will create, as the noble Lord, Lord Paddick, has said, a new suspicionless stop and search power, and once a person is issued with one of these orders they could face unlimited interference from police officers. We have to ask: is this the sort of measure that will bring those offenders back into society or will it turn them further away?

The Greens will support any amendments that improve this system of serious violence reduction orders, in particular Amendments 95B or 95A—whichever amendment tabled by the noble Baroness, Lady Meacher, comes up for a vote. That the reports from a pilot project are approved by Parliament before these orders can be deployed more broadly seems to me to be common sense. Why on earth would they be brought in before they have been measured? It is essential that the Government prove the efficacy of these measures and demonstrate that they are not being used in a way that is racially or otherwise discriminatory.

I particularly support Amendment 101 from the noble Lord, Lord Paddick, which would repeal the existing powers of suspicionless stop and search. There should not be a power for the police to search without reasonable suspicion.

[The Lord Bishop of Manchester]

My Lords, I support Amendments 90H, 90J, 95A, 95B and 95C, to which I have added my name. I also signal my support for other amendments in this group which also seek to control more tightly how serious violence reduction orders will operate. I draw your Lordships’ attention to my work on policing ethics, both for Greater Manchester Police and for the National Police Chiefs’ Council, as set out in the register of interests.

As the noble Baroness, Lady Meacher, has indicated, Amendment 90H seeks to ensure that an SVRO can be applied only when a bladed article or offensive weapon is used to commit an offence, not simply when such an item happens to be present and in the possession of the defendant. As the noble Lord, Lord Paddick, has indicated, as presently drafted, the Bill requires no substantive link between the weapon and the offence. An individual could, for example, commit a road traffic offence while driving home from a church picnic, with their used cutlery on the passenger seat next to them, and the prosecution could ask for an SVRO.

I can see that subsection (5) of the proposed new chapter is intended to mitigate that by requiring the court to consider that imposition of the order is necessary to protect the public or the defendant from possible future offences involving such weapons. However, I do not believe it adequately achieves that objective. Asking a court to conject what might happen in the future can all too easily invite decisions taken on discriminatory or flimsy grounds, especially as no court would wish to face public criticism for having failed to apply an SVRO should later violence occur. To legislate for future conjecture requires a robust link to what has already happened. Subsection (3)(a) gives that; it requires that the weapon was used by the defendant in committing the offence in question. Deleting subsection (3)(b), as this amendment seeks to do, would ensure that any order is based on genuine and evidenced risk. To put it bluntly, it would pass my church picnic test.

Amendment 90J, if I may turn to that, seeks to more closely tie the order to the offence by limiting it to the actual person who used or had possession of the weapon, not some putative third party who

“knew or ought to have known”

that they had it. The de facto joint enterprise element in the current drafting of this clause widens the net substantially for who can be affected, and includes people not convicted of knife crime. As the noble Baroness, Lady Meacher, has just said, this is likely to disproportionately affect women and girls, who may well know or suspect that a partner or family member may be carrying a weapon but are far too vulnerable to be able to extricate themselves from a situation where violence involving such weapons may be committed by others.

I understand that the intention may be to provide such vulnerable adults with an excuse to stay away from both people and situations with which violence may be associated, but when I try to put myself in the position of such a person, I cannot really imagine saying to my partner or brother: “Oh, I must not be near you when you have a knife because I might get an SVRO against me.” I think these people are far too vulnerable. I hope I have persuaded your Lordships that Amendment 90J will address this deficit.

Finally, on Amendment 90J, apart from it being grossly unfair by ignoring the impact on vulnerable people, subsection (4) appears to be unworkable. How will the court determine if someone “ought to have known” that some other person had a knife? The amendments in the name of the noble Baroness, Lady Armstrong, tease out this point specifically. I will leave others to speak to them at greater length, but if our own Amendment 90J does not win your Lordships’ support, I would hope that her amendments are more persuasive.

I now turn to Amendments 95A, 95B and 95C on the pilot scheme. In order to understand how SVROs operate in practice, these are entirely welcome. SVROs present a major innovation. There are significant risks of dangers from unexpected consequences—dangers that may outweigh any good that SVROs achieve. If we are to roll them out across the country, we need to have confidence that they are doing the job intended and making things better and not worse. For all the eloquence of our arguments in this House, there is nothing quite like having real, practical experience on the ground to draw on if we are going to get things right. These three amendments, taken together, simply seek to strengthen the pilot; to make it a genuine gathering of all the most relevant evidence, and one that will feed into a proper decision-making process here in Parliament, ahead of SVROs being rolled out across the nation.

In my early days as Bishop of Manchester, we had an idea of how we might make better and more locally informed decisions on where we deployed our vicars. We set up a two-year pilot across about a fifth of our dioceses. Towards the end of that period, we commissioned an independent evaluation by outside experts. We learned a huge amount from the exercise, and, in consequence, we never rolled out the substantive project. We did something different; we did something better. A pilot has to have the capacity to substantially implement the eventual shape of whatever is the final product, otherwise it is simply window dressing.

It is clear from speeches already made here today that there is considerable uncertainty about SVROs. In particular, noble Lords have drawn attention to the danger that they become associated with disproportionality and hence diminish confidence in policing and the courts. None of us wants that. We noted the risk that, rather than prevent criminalisation, they may draw more vulnerable people—especially young women—into the criminal justice system. We have remarked that extensive use of stop and search powers, especially in the absence of specific evidence of intention to offend, has over and again proved counterproductive. These last three amendments cover both the process and the content of the pilot evaluation. They will make for much better decisions on how and when, and perhaps most crucially if, SVROs are rolled out across the nation. I hope the Minister will be minded to accept them or to meet us to find an agreed way forward.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I really did not want to speak today, because, whatever I say, I am going to get abuse, but I have been incensed by some of contributions. I point out, in an absolutely non-specific way, that the majority of speakers have been male, and they have spoken against the amendment. Two women have spoken for the amendment, because they perceive there is a problem. My party’s policy is that trans men are men and trans women are women, and I do not have a problem with that, but there are occasions when women in women’s prisons experience sexual predation by men who have falsely self-identified as women. The noble Lord, Lord Cashman, said that we are saying that all trans women are sexual predators. We are not saying that—of course not.

Will the Minister clarify whether trans men go to male prisons? My understanding is that they do not, because they would not be safe. What we are talking about here is keeping people safe. Vulnerable people of all kinds, whatever trans identity or sexual identity they have, should be kept safe. Clearly, prisons are the worst possible places to keep people safe; they are a nightmare. This Government are increasing the number of prisons. They are not trying to reduce the prison population and make our prisons safer; they are adding to the problem. Do trans men go to male prisons? Have there been cases where men have falsely self-identified as women and predated sexually on women? I have had emails and letters from women who have been abused by men who have falsely self-identified as women. What can we say to those women? We cannot say, “This is an ideology and we’re trying to look good”; we have to be serious about people who are abused, whether they are male or female, or trans men or trans women.

I would not vote for this amendment, because it is too hardline. I accept the issue of safe accommodation—that seems very sensible; I do not see it as demeaning at all. Prisons are demeaning; safe accommodation sounds very safe to me.

Only men in this debate have spoken against the amendment. Why do men think that is okay? I do not understand. They are ignoring the fact that some women are predated upon. Sometimes those women may not be telling the truth—I have no idea, but I rather suspect that they are. Please can we just think about the vulnerable people and stop being so ultra-sensitive and supposing that we are all getting at everybody. I am absolutely fed up with this debate, and I hope this is the last speech.

[Baroness Barker (LD)]

My Lords, it will not be, because this woman disagrees with this amendment. I speak as a woman who cares deeply about the physical safety of women. One of the things I find most objectionable about the campaign which has been run in the media for the past couple of years is the assumption that those of us who are women and who stand as allies with trans people do not care, because I do not believe that is the case at all.

It would be very tempting at this stage to answer some of the wide-ranging points which have been made about, for example, polls with leading questions, misinterpretations and mis-statements of the law, but I shall not do that. I shall simply stick to the facts that this House should look at when it comes to a decision on this matter.

The noble Lord, Lord Blencathra, spoke about an entitlement of prisoners to go to an estate. There is no such entitlement. The noble Baroness, Lady Jones, talked about instances where self-identifying male prisoners had predated on women. That has happened, but my understanding is that it has not happened since the implementation of the policy which has been operational in the Prison Service since 2016 and was updated in 2019.

There are historical cases, which are trotted out all the time by people who wish to disparage trans people. Let us be absolutely clear what the current policy that is operated in our prisons is:

“A proper assessment of risk is paramount in the management of all individuals subject to custodial and community sentences. The management of individuals who are transgender, particularly in custodial and AP settings, must seek to protect both the welfare and rights of the individual, and the welfare and rights of others in custody around them. These two risks must be considered fully and balanced against each other … Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custody”.


My understanding, from talking to prison officials, is that not only is there no entitlement for a prisoner to be held in an estate, but that the risk assessment includes an assessment of whether somebody is attempting to be transferred into an estate in order to perpetrate further crimes. If they are, it is held as a contra-indication.

I agree absolutely with the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick. What we have now is a policy, as the noble Baroness, Lady Falkner, said, that does protect to the full the human rights of individuals, but also balances them with the safety of everybody—that includes the staff in prisons as well; let us not forget them. The noble Lord, Lord Blencathra, is therefore putting to us an amendment that is not based on evidence and is a retrograde step. I urge noble Lords to reject it.

Nationality and Borders Bill

Baroness Jones of Moulsecoomb Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Anderson of Ipswich, on an issue that we all care about. This Bill is absolutely atrocious. It is important that we remember in this debate that the impact of this law will be on some of the most vulnerable, damaged, endangered and downtrodden people in the entire world. We are talking about refugees fleeing their bombed-out homes or fields that cannot support crops anymore because of climate change, and people seeking asylum from oppressive governments—human beings who have been enslaved by callous criminals. At a time when the world feels more dangerous than ever, and while the UK continues to fuel global conflict by acting as one of the world’s largest arms dealers, history will judge our Parliament and our Government harshly for this legislation.

The Government speak warm words about making things safer for refugees and asylum seekers, but the Bill offers no solutions for genuine safe passage. It shuts the door on people and criminalises their desperation. It is knee-jerk legislation which appeals to the basest instincts of the Tory vote. It is appeasement to right-wing extremists and a continuation of the Conservative Party’s decades-long obsession with immigration. At the moment, the UK birth rate is about 1.5 children per woman, and we need 2.8 children per woman for replacement, so we need immigrants; we are an ageing and falling population.

There is also the problem that I do not think this legislation will work. Creating a two-tier system for refugees, divided on how they arrived in the UK, is unlikely to make any difference. It assumes that these people are taking legal advice and making calculated strategies, rather than desperately doing whatever they can to survive. The UNHCR has stated in no uncertain terms that this is discriminatory and in violation of the 1951 Refugee Convention.

There is the undermining of access to justice, fiddling with legal process, and curtailing rights to appeal, all of which significantly increase the risks of deporting people with valid claims, putting them at risk of further enslavement, torture or death. It is unclear how, under Clause 39, asylum seekers are supposed to enter the UK legally and without committing a criminal offence. Some 90% of people granted asylum in the UK are from countries whose nationals must obtain an entry clearance visa to enter the UK.

Turning to the deprivation of citizenship provisions in Clause 9, a lot of people will be surprised to learn that the Government already can—and do—remove people’s right to British citizenship. That is not new, but it means there is a two-tier system of British citizenship. The change is that the Government will now be able to remove people’s citizenship without any notice or warning whatever. The term

“otherwise in the public interest”

is so broad a discretion as to be almost meaningless. The Secretary of State can basically choose not to give notice on a whim. Of course, because citizenship will have been revoked without any notice, any judicial review or other legal challenge will only be able to be brought retrospectively.

In summary, the Bill is a continuation of the trend by this Government to remove individuals’ rights, undermine legal safeguards and view the legal profession as the enemy within. Rather than bring constructive solutions to these complex problems, the Government invoke criminal penalties and a legal quagmire. The end result is that injustices will go unresolved, genuine claims for asylum will be denied, and a great many people will be condemned to misery and suffering who ought to have been allowed to start life afresh on these islands. In words that might resonate with the Benches opposite, this Bill is a stain on British values.

As somebody who comes from Celtic stock—my lineage was here after the previous ice age—I welcome immigrants; I feel that they add life and vitality to what is sometimes a rather dull population. I will vote against the Bill and I very much hope that other Members of this House will as well.

Police, Crime, Sentencing and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, the noble Lord, Lord Beith, with his usual remarkable acuity, has put his finger on a very important point, which is the question of disclosure. It is clear that police forces have tended to use disclosure as the reason for obtaining much of the material that has been unnecessarily obtained, so let us be clear what the duty of disclosure is. There is a duty to disclose to the defence material that undermines the prosecution case or materially assists the defence case, but that cannot be a reason for oppressive conduct against a complainant.

I absolutely commend the amendments tabled by the Government—they are extremely helpful in taking this issue forward—but I also support the amendments tabled by the noble Baroness, Lady Chakrabarti, which would strengthen the forward-looking view of the amendments. It is a real risk that women, and indeed young men, who are the victims of rape will not pursue the case because they feel oppressed, embarrassed or threatened by unnecessary requirements framed under the heading “disclosure”.

We have a situation in which the number of rape cases prosecuted by the Crown Prosecution Service, and the number of alleged rape cases reported by the police to the CPS, has diminished dramatically over the years. It is no accident; the CPS does not like to run the risk of losing cases if it can avoid it. There are certain types of cases where there might be an inherently higher risk of a prosecution failing, but they should still be prosecuted at a significant level because of the effect the complaints behind those cases have on the way society operates—the way men and women, and men and men, have their relationships, which are so crucial to a stable society. I believe that the CPS has been completely wrong and unwise to abandon the procedures put in place in previous years. I regret that it has failed to recognise that in as clear a way as it should.

I hope very much that the Government will look at all these amendments together and accept that improvements can be made to achieve an end that we all share. The way our children and, for some of us, our grandchildren now use their mobile phones is quite different from anything we would have imagined. They share intimacies on their mobile phones that would have been shared only orally one generation ago and not at all two generations ago. This is a change in our society. We have to recognise that we must respect some part of the privacy of such material.

My final point is that there is a great responsibility particularly on the police. I absolutely recognise that there are expert police officers dealing with RASSO cases now, but there is an absolute responsibility on police officers, including in rural areas where there is a significant shortage of training for specialist police officers, to explain to complainants what is going on before they ask for the material and before those individuals have to make a decision as to how much of their intimate material to reveal to the police, and potentially to the court. One of the pieces of advice that should be given to them—I am afraid I have to confess that I have done this—is that some quite extensive cross-examination sometimes takes place in courts that is not expected by victims of rape. My support is, I hope, intensely practical and intended to be constructive.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I very much hope the Minister can listen to this, because it is obvious that there is a general concern. I will keep my remarks brief because I agree with everything that has been said so far, particularly on the Hobson’s choice that victims are often given: either they hand their telephone over voluntarily or they have it confiscated. That really is an abuse of procedure.

I would like the Minister to answer a question for me: if there is that threat inherent in what the police tell a victim, would any evidence gathered under Clause 36 be inadmissible in court? I rather think it should be. We should remember that government Ministers have been very reluctant to have their electronic devices pored over by the police, and have dropped them or broken them or things like that. This is an intrusive and invasive procedure. It should be done as best as it can be, and at the moment it really is not.

[Baroness Hamwee (LD)]

My Lords, regarding the point made by the noble Lord, Lord Carlile, about explanations, I absolutely support him, as do two of the amendments in this group—Amendment 43, in which “explanation” is used, and Amendment 50, concerning giving notice “orally”. I am sure that noble Lords will understand the significance of that. Many people will take in something which is explained to them face to face and orally in a way which they might not if given a rather formal document to read.

I ask the Minister about the extent of what is meant by “confidential information”. There is a reference to what will become Section 42. As I read it, it is not confidential in the normal meaning of the word, but refers only to journalistic material, legally privileged or business material, as referred to when one follows through the cross-references, and not to personal material. Can she confirm that, because it very much affects what these clauses do? Can she also help the House with the relevance in her Amendment 47, in the proposed new subsection (7C), of the amount of confidential information likely to be stored on the device? Amount is not the same as significance.

Police, Crime, Sentencing and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I thank the noble Lord, Lord Berkeley, for that vote of confidence. I wish to speak to the amendments in my name and to the group in general.

I start with Amendment 63, on exceptional hardship. If you Google “exceptional hardship”, the first listing is an advert from a firm of solicitors. I will not give their name; they do not need free publicity from me because they also advertise on the television. They describe themselves as “exceptional hardship” and “totting up” solicitors. They define exceptional hardship as “real hardship”. They say they have covered more than 10,000 cases and have a 98% success rate. No wonder, as a recent FoI request revealed, there are 8,632 drivers driving around with more than 12 penalty points. The firm I have described is not alone; there are dozens of other firms of solicitors advertising similarly. This is an industry: this is not an exceptional situation that we are dealing with.

Amendment 63 seeks to define exceptional hardship as something significantly greater than the definition provided by that firm of solicitors and significantly greater than the hardship that would arise for a large majority of other drivers. The definition takes into account the offender’s economic circumstances, location and family circumstances. I bring this to the attention of the Government, and say that there is no point in putting down amendments for more and more stringent penalties if there is a gigantic loophole which is being exploited in front of our eyes.

Amendment 66AA, on bridge strikes, is the manuscript amendment from the noble Lord, Lord Berkeley. I am grateful to him for persisting with this issue because it is a very serious accident waiting to happen. As he has described, lorries hit bridges all the time. This causes a major impact on train services and on our economy, as well as obviously presenting a road safety issue. There are huge costs to the HGV drivers as well. Clearly, drivers do not do this deliberately, so there must be a problem. The problem is almost certainly in the signage; we have the technology nowadays, and improved signage needs to be implemented. There also needs to be a reappraisal of responsibilities between Network Rail and the highways authorities, where there is an interface.

Clearly, both my Amendment 66A and that of the noble Lord, Lord Berkeley, present examples of the type of issues that need to be included in a long overdue review of road traffic offences. My amendment is similar to that from the noble Lord, Lord Berkeley, but I have selected some other features that I think are important. It is unfortunate that all these are lumped together, but it is important that we look at this in a little detail. There is a separate group for pedicabs, which are a very small feature of modern roads and do not exist outside London, but they are one of a large number of new features of our transport system that need to be looked at and reappraised in the context of road traffic overall.

Another example of a new feature is e-scooters. It is reported that at least 11 people have been killed in the last year either on or by e-scooters. The Government’s approach has been to set up lots of pilot projects. Basically, e-scooters have been allowed to spread nationwide as a result of a lack of intervention. In a Written Answer I received from the Minister, the noble Baroness, Lady Vere, when I made inquiries about safety issues associated with e-scooters, she said:

“While trials are running, privately-owned e-scooters will remain illegal to use on the road, cycle lanes or pavements.”


That is fair enough, but no one ever does anything about the fact that thousands of them are being used, and tens of thousands more will be bought this Christmas.

The large number of pilot projects has led people to believe that e-scooters are legal everywhere. The problem is that, because they are illegal, there are so many of them around and the rules not enforced, bad practice is now the norm. Noble Lords have only to walk outside this building to see that bad practice. There are issues such as minimum age—they are often ridden by very young people—maximum speed, wearing helmets, registration, and where you ride: on the pavement or on the road. This week, Transport for London has responded to the latest danger: fires from exploding batteries. There have been several fires on TfL vehicles because people carry those scooters on trains. Transport for London has said that people can no longer do that, but it has had considerable problems and all transport operators will have to consider this issue.

We will come later to the issue of alcohol levels, so I will leave that, but another issue I want to raise is road signage. In 2016, there was a relaxation of the specification and standards for road signs. It appears to be part of a drive to reduce red tape. Last week, the noble Lord, Lord Rosser, and I met the family of a young woman who drowned when she drove at night into a ford in bad weather on a country road. From the coroner’s report, it is obvious that the poor quality of the signage was a key factor because other people had also driven into that ford by mistake—luckily for them, with not such a terrible impact. The depth gauge at that ford was so slim and poorly marked that it was invisible at night. The previous standard for depth gauges, which was abolished in 2016, required a much bigger and clearer structure.

This and others are simply taster issues for the huge range that need to be included in a review. It was promised in 2014, with a public consultation phase. We are still working on the basis of the endlessly amended Road Traffic Act 1988. Our roads have been transformed since then by the number of vehicles, vehicle technology and capability and new sorts of vehicles. The key point I am trying to make with this amendment is that the review must be comprehensive, rather than just addressing a handful of issues that are annoying Ministers at the moment. It needs to be done now, not kicked into the long grass again. It needs specifically to grapple with new technologies and forms of transport such as autonomous vehicles. It must take an overall approach to consistency of sentencing.

The problem with the approach in the Bill is that the Government have plucked out some offences for tighter sentencing, which will inevitably leave them out of kilter with other offences. The Government’s approach is for stiffer sentences with longer jail terms, but many transport campaign groups would prioritise appropriate sentencing, especially disqualification and community sentences. There are many bad drivers out there, but they often lead otherwise law-abiding lives. We have nothing to gain as a society by locking them up, which is costly to the taxpayer in the short term and in the long term, as they become much less employable on release. So, alternatives ought to be considered to simply putting people in prison.

The good thing about disqualification is that it protects the public. The key point of my amendment is that there needs to be full public consultation. In 2016, in a debate in the other place, the Government claimed that there had indeed been a review, as promised in 2014, but there was no public consultation and no published outcome. That makes a mockery of the whole process, so I am very pleased to hear from the Minister that there are plans now for a proper review, and I shall be listening carefully to what she has to tell us. I hope it will be a full and comprehensive review with proper public consultation that will take place in the very near future.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is good that the Government have realised that our road traffic laws are a mess, because the cost—the human cost, the social cost—of the crimes and offences we are talking about is extremely high. When we think of the cost of the deaths and injuries to the NHS, to social services, to the emergency services, we are talking about billions of pounds and we really ought to understand that a lot of the causes are avoidable.

When I first got on to the Met Police authority, I went out a lot with the traffic teams—I have told this story before—and one sergeant said to me, “If I wanted to murder somebody, I would run them over with a car, because nobody could ever prove it was not an accident”. This brings me to the word “accident”, which we really should not use when we are talking about road collisions, road incidents and so on. It offends me and the whole road safety community deeply, because the minute you use the word “accident”, you are judging the cause of whatever happened and that is obviously unfair. You have to look into what really happened.

The most dangerous idea is people who should be disqualified from driving being able to plead exceptional hardship. We have heard a lot about “exceptional hardship”: what a misnomer. People are often allowed to keep on driving and quite honestly, they should feel lucky that they have not gone to prison because a lot of the time, it is complete nonsense. I have read about a lot of cases where the judge or the magistrate allowed someone to get away with—well, not murder, but certainly manslaughter at times. It is obviously a crime against society, not to mention the families themselves.

--- Later in debate ---

[Noble Lords]

Oh!

[Baroness Jones of Moulsecoomb (GP)]

Was that objection to what I am saying or support? I could not work it out. We should be aiming for zero road deaths. They just should not happen. The roads and pavement should be safe spaces. We achieve that by making sure that drivers—and pedestrians as well, of course—obey the law. Legislation must comprehend just how damaging bad and careless driving are.

Finally, Amendments 65 and 66A would require a total review of road traffic offences and penalties. That really is the only sensible way forward, and the only way for society to properly address the damage caused by car culture and start the journey towards zero road deaths. I look forward very much to hearing the details of the review and hope that it happens soon.

[Earl Attlee (Con)]

My Lords, I most sincerely apologise to the House for not being present at the start of this debate. I strongly support the thrust of the amendment about bridge-bashing in the name of the noble Lord, Lord Berkeley. One day the holes in the cheese will line up and there will be a very serious accident, and the whole world will ask why we did not use technology to avoid such accidents. I strongly support the amendment from the noble Baroness, Lady Randerson, about “exceptional hardship”; I would not actually vote against the Government on it, but I strongly support it.

Hate Crimes: Misogyny

Baroness Jones of Moulsecoomb Excerpts

Monday 6th December 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

Without going into the details, monitoring of some of the threats that we face goes on in the UK. Noble Lords will have seen in the press some examples of where that has led to more violent crime.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, we saw with the killer of Sarah Everard that he was part of the police and was protected by a quite toxic culture within the police. Does the Minister agree that if we had misogyny as a crime, the police themselves might improve on their behaviour?

[Baroness Williams of Trafford (Con)]

It was clear from the murder of Sarah Everard and the ensuing inquiry that we need to look into an awful lot of areas: the culture, vetting and other elements of what might have led to what happened. It probably goes beyond misogyny.

Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2021

Baroness Jones of Moulsecoomb Excerpts

Tuesday 30th November 2021 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I beg to move that the order, which provides for the continuation of the Secretary of State’s TPIM powers, or terrorism prevention and investigation measures, for a period of five years, be approved.

The Government take all necessary steps to protect the public. The threat we face from individuals and groups who wish us harm is significant and enduring. It is vital that we have the tools necessary to keep this country safe. It is right that our first response to terrorism-related activity should be to prosecute or deport those involved, but it is not always possible. That is why we continue to require the powers conferred on the office of the Home Secretary within the Terrorism Prevention and Investigation Measures Act 2011. Section 21(1) of the Act states that the Secretary of State’s TPIM powers will expire at the end of five years from the date the Act was passed. Due to the continuing threat to the UK from terrorism, and following consultation with the Independent Reviewer of Terrorism Legislation, the Investigatory Powers Commissioner and the director-general of the Security Service, there can be no doubt that TPIMs remain an essential component of our toolkit to manage the threat from terrorism.

The Act provides the Secretary of State with powers to impose a TPIM notice on an individual if the conditions set out in Section 3 of the Act are assessed by the Secretary of State to have been met: namely, that she reasonably believes that the individual is, or has been, involved in terrorism-related activity, and reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to impose the measures on the individual.

In addition to the power to impose a TPIM notice, the Secretary of State has powers to extend and vary a TPIM notice that is in force, and to revive a TPIM notice that has been revoked. Since the introduction of the Act in 2011, 24 TPIMs have been imposed. As of the last published set of figures on 21 October, five TPIMs were in force. If the TPIM powers are not extended, these five dangerous individuals will be at large without any measures in place to reduce the risk they pose to the public. TPIMs are imposed as a tool of last resort, when the Security Service judges that there are no other means, or that a TPIM notice is the only satisfactory means, to manage that risk.

I shall now outline some of the background to TPIM powers for the Committee. TPIMs are civil preventive measures designed to manage the threat posed by individuals who cannot be prosecuted for a terrorism-related offence, or deported in the case of foreign nationals. There is no question that TPIMs are extraordinary measures. That is why the 2011 Act provides for broad judicial oversight, including a requirement for High Court permission to impose the measures, except in urgent cases where the notice must be immediately referred to the court for confirmation; an automatic review hearing in each case, unless the individual requests that the hearing be discontinued; and rights of appeal for the individual against the refusal of a request to revoke or vary a measure.

The TPIM legislation also places a duty on the Secretary of State to consult on the prospects of prosecuting an individual before measures may be imposed, and a duty to keep the necessity of measures under review while they are in force. The Counter-Terrorism and Sentencing Act 2021, which amended existing measures and introduced new TPIM measures, also reintroduced a requirement on the Independent Reviewer of Terrorism Legislation to publicly report on the operation of the TPIM Act.

The TPIM Act has been extended once, in 2016, by this House. Unless a new order is made under Section 21(2)(c), the powers in the Act will expire at midnight on 13 December this year. Just as was the case five years ago, it is absolutely essential that we have all the necessary powers to protect the public from terrorism-related activity. Having consulted as required by the Act, the Home Secretary has decided, due to the significant terrorist threat facing this country, to make this statutory instrument to provide for the continuation of TPIM powers for a further five-year period, which is the maximum allowable in the legislation.

It is essential that our counterterrorism strategy enables us to tackle the full spectrum of activity. TPIMs have been endorsed by the courts and successive Independent Reviewers of Terrorism Legislation, while the police and the Security Service believe that they have been effective in reducing the national security risk posed by those subject to the measures.

Our message is clear: we remain steadfast in our determination to defeat terrorism and we will take every necessary action to counter the threat from those who hate the values that we cherish. The safety and security of the public is our number one priority, and I commend the order to the Committee.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, here we are again: the five-yearly renewal of the TPIM scheme, which has been in place since 2006. I oppose these restrictive measures, which are an extrajudicial way of interfering with the rights and liberties of people who cannot be convicted of any crime.

I am curious to know whether the Home Office has explained to the Prime Minister that it is doing this. I ask because, while MP for Henley in 2005, Boris Johnson wrote of the Act in his Telegraph article of 10 March:

“It is a cynical attempt to pander to the many who”—


forgive my language here—

“think the world would be a better place if dangerous folk with dusky skins were just slammed away, and never mind a judicial proceeding; and, given the strength of this belief among good Tory folk, it is heroic of the Tories to oppose the Bill. We do so because the removal of this ancient freedom is not only unnecessary, but it is also a victory for terror.”

I hope that the Minister will at least pass this back to the Home Office to make sure that the Prime Minister is happy with this renewal. It must be so difficult for Ministers to do anything without Boris Johnson having opposed it somewhere at some point in the past; there is always an article somewhere that one can track down. Our Prime Minister is so very often so wrong, but on this rare occasion he was so right: it is heroic to oppose these measures, and the Greens in your Lordships’ House will register their opposition every five years when this continuation order comes round. I actually hope this will be the last time.

[Lord Anderson of Ipswich (CB)]

As Independent Reviewer of Terrorism Legislation in 2016, I had no hesitation in recommending the second renewal of TPIMs in that year. I share the Government’s view that TPIMs, although they involve a particularly severe deprivation of liberty and intrusion into private life, may be an appropriate tool for dealing with a small number of individuals who are believed to endanger the public but whom it is feasible neither to prosecute nor to deport.

However, close scrutiny of TPIMs is important, all the more so since the maximum duration of a TPIM was significantly increased by the Counter-Terrorism and Sentencing Act 2021. I am here to raise with the Minister one concerning development that has arisen since my time as independent reviewer: the refusal of legal aid to TPIM suspects who cannot afford to progress the automatic review of each TPIM that is provided for in Section 9 of the TPIM Act 2011.

Jonathan Hall QC, the current independent reviewer, reported to the Government in November 2020 that, in the previous year, three subjects of so-called light-touch TPIMs, known as JD, HB and HC, requested the court to discontinue the reviews in their cases and that

“the absence of funding was a factor”.

In each case, they had been refused legal aid. The independent reviewer’s report, published in March 2021, recommended that, subject of course to means, legal funding should swiftly be made available to TPIM subjects for the purpose of participating in Section 9 review hearings. Mr Hall informed me this afternoon that, more than eight months after publication, there has still been no response from the Home Office to this recommendation. Can the Minister say when a response will be provided?

In the hope that it may influence the substance of any response, which, I might add, I do not expect today, I shall make four points. First, on 12 October 2020, the Government wrote to the UN High Commissioner for Human Rights, defending the TPIM regime on the basis that, among other things,

“all TPIM subjects have an automatic right to have a court review the imposition of their TPIM and each of the measures imposed. This hearing also provides an opportunity for the subject to hear the national security case against them.”

I assume that in the last sentence the reference is to the gist of the national security case, which is now provided to the TPIM subject. It is plain from what I have said, and from what the independent reviewer has said, that there is, in reality, no automatic right to review and that there will be no such right for as long as legal aid is refused to TPIM subjects on grounds other than means.

Secondly, it would be unacceptable if funding were to be denied because of a misapprehension that a Section 9 review is a form of challenge that requires a TPIM subject to establish reasonable prospects of success. As the independent reviewer explains in his report, Section 9 review was designed not as an add-on but as an integral part of every TPIM. Furthermore, it is not feasible to apply a merits criterion to the grant of legal aid, because the requirements of national security mean that TPIM subjects do not know, and will never be told, the full reasons for the Secretary of State’s decision to impose a TPIM.

Thirdly, if the aim is to save money or a desire to avoid giving money to lawyers for suspected terrorists, that aim is not only misguided but likely to be counterproductive. The legal aid issue affects very few cases—just three in 2019, as I indicated—but is bound eventually to lead to prolonged litigation about the fairness of proceedings.

White Ribbon Campaign

Baroness Jones of Moulsecoomb Excerpts

Thursday 25th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

The noble Baroness will know that it is purely a Home Secretary decision. I think the other thing she will acknowledge is that in Dame Elish we have a highly respected, highly competent individual to lead the inquiry.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I too congratulate the Minister on her performance last night; it was a long one. A start, perhaps, to putting in a complete package on this issue of male violence towards women might be to make misogyny a crime. Are the Government considering that?

[Baroness Williams of Trafford (Con)]

I think the noble Baroness is aware that we are not currently considering misogyny as a hate crime, but we have asked the Law Commission to look into whether hate crimes based on sex or gender should be considered.