Female Genital Mutilation
Debate between Baroness Smith of Basildon and Lord Faulks(9 years, 4 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, I associate myself with the tributes paid to the noble Baroness, Lady Rendell, first, for giving us the opportunity to have what has been a very thoughtful debate on this issue and, secondly, for her tireless campaigning on an issue that—let us be honest—is so awful that most of us do not even want to think about it. However, we have to think about it and take action on it so her campaigning, and the way that she has drawn the wider public’s attention to this issue, is something that she should be very proud of and we are very grateful for.
I also welcome the Minister who is responding to this debate. As we have heard, there have been some debates that were responded to by the Department of Health. During the many debates on the changes that we were making to legislation on the Serious Crime Bill, it was the Home Office responding. It is appropriate that we also have a response from the Ministry of Justice, as there are specific issues related to that department. That just shows how important it is for those three departments, and others, to work together and be co-ordinated on this.
The scale of this problem is hard to comprehend. We have had some figures from the noble Baroness, Lady Rendell, but there are thousands of young women and girls in this country who have been mutilated. For those who think that it happens somewhere else over there, it does not; it is happening here. There could be a young girl somewhere in the UK today who is being mutilated. It is that serious. The euphemism that we sometimes use of girls being “cut” belies the horror of what is really involved, which I think is the point made by the noble Lord, Lord Berkeley of Knighton. It was right that the noble Baronesses, Lady Tonge and Lady Rendell, were also clear about the horrors of what is involved. When we spoke about this in debate on the Serious Crime Bill, I think that I was the first person to appear on “Yesterday in Parliament” in a programme that was given a certificate and a warning before it went out. I thought that it was important to say exactly what is involved, and in somewhat embarrassing graphic detail.
We are talking about thousands of young girls and women. The noble Baroness, Lady Tonge, made the point about these girls having children. It is estimated that up to 60,000 girls have been born in England and Wales to mothers who had FGM, which means that they have been sealed up after they have been cut and that the process of birth, where they have to be operated on beforehand, is extremely difficult. Whatever the numbers, we are talking about thousands. The process known as infibulation sounds quite a normal word for something that will continue to cause pain and trauma throughout the life of that woman. It is a mutilation that leaves permanent scars, on the mind as well as on the body.
The lack of prosecutions should concern us all. It would be fine if we thought that there was a lack of prosecutions because the law had been so successful that it was preventing this happening. However, we know that that is not the case and that thousands of young girls every year undergo FGM here in the UK.
I would like to raise two issues because it seems to me that the purpose of legislation here is twofold. We have such legislation in place, first, to try to prevent such mutilation occurring and, secondly, to take action against those who break the law. We had discussions in debate on the Serious Crime Bill on female genital mutilation orders, which the Government introduced in response to our proposals for such orders. They seek to protect young women from this vile practice before it happens, so they are similar to the forced marriage orders in their aim being prevention. By recognising all the problems in getting evidence for a criminal prosecution, they take the route that this is a civil measure to protect a young girl rather than a criminal measure.
The Minister was not in the debate because it was not his Bill, but I am sure that he will be aware of the discussions that we had. We have concerns about the process that the Government have chosen. Rather than placing such orders clearly and firmly in family law in a civil process, they are placed in a civil process within criminal law. I will not go into the detail now but all the advice that we have received from lawyers with expertise in this field tells us that this will make the gain of such an order more difficult, for some of the reasons that we have explained before. That is part of why we have had a lack of prosecutions for those who have committed FGM.
The Minister’s experience will tell him that lawyers dealing with family court cases and issues are not the same as those who deal with criminal law. We welcome the orders that prevent this happening and we welcome the Government’s support, but we just want them to be as effective as they possibly can be, because a child’s future depends on us getting this right. We want to ensure that there are no barriers for someone to seek an order to protect a young girl from being mutilated. We want to make it as easy and straightforward as possible, without any loopholes or problems. So before the Serious Crime Bill finishes its passage through Parliament, could the Minister bring his legal expertise to look again at this issue to ensure that we have got it right, because we have serious doubts that the orders as currently proposed will get as many prosecutions as they could if they were wholly within family law courts and not within a criminal prosecution, although it is a civil measure?
Baroness Smith of Basildon
I am not talking about prosecutions—I am talking about the FGM orders that are currently civil orders that the Government have placed within criminal law to keep all FGM legislation the same. It is a very different process from prosecuting afterwards.
My second point is that we wanted these FGM orders to be based on the same principles as forced marriage orders, which have been significantly successful. One aspect on which I sought clarity from the Minister at Third Reading—I have also spoken privately to the Minister and have not yet got an answer—is whether legal aid would be made available for those seeking an FGM order as it currently is with forced marriage orders? The Minister was unclear on that in the House and although I have spoken to him since it seems that there is still a lack of clarity in the Government over whether these orders would attract legal aid. It seems impossible to me that they could proceed in any way without legal aid.
During the passage of the LASPO Bill, because of the changes made to legal aid by the Government, there was a specific provision was made for forced marriage orders, in paragraph 16 to Schedule 1. No such provision has yet been made for FGM orders. I find it strange that the Government would consider bringing in such orders without providing these young girls or those acting on their behalf to prevent them being mutilated with the ability to bring something before the courts and have legal aid. Are the Government intending to make legal aid available? If not, or if the position remains unclear, how does the Minister expect the orders to be obtained and how many does he think that there will be?
We do not think that the Government are wrong on the orders. On prosecutions, we believe that they share our objectives to stamp out this practice and hold those responsible to account. We believe that that is a genuine commitment from the Government. However, the laws that we have at the moment are not working as well as they should, or were intended to do. We have an opportunity in the Serious Crime Bill to make changes and get it right, but as the right reverend Prelate said, we need to have a cultural change as well. If it was made clear that successful prosecutions could be made under the existing law, that would help to drive a cultural change. If the expectation was that this was something that could be prosecuted, that would have an impact in those communities.
We all want to see those responsible for mutilating the genitals of young girls being prosecuted, and we want to see this twin-track approach whereby we prevent it happening in the first place and make a difference to the lives of these girls.
Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014
Debate between Baroness Smith of Basildon and Lord Faulks(9 years, 5 months ago)
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Baroness Smith of Basildon (Lab)
As I rise to speak at 10.45 pm, I am reminded of my former constituent who, as I left the gym one morning, pointed out that, as a member of the House of Lords, I must be semi-retired. Little did he know. The noble Lord, Lord Stoddart, ended on a very important point. We started this debate at 8.56 pm, after a very long Second Reading debate. It was not rocket science for the Government to understand that a number of noble Lords, who have great expertise and knowledge on these issues, might wish to contribute. Your Lordships have been remarkably self-disciplined in keeping the debate so short and precise. We have had numerous debates of this kind in which many—but not all—noble Lords here this evening have taken part. Given the importance of tonight, and the mess the Government made of it last week in the House of Commons, they should have got it right. I am sorry and disappointed at the way the Government have behaved.
The Motion before us tonight is, as we have heard, different from what the Government originally intended. It is right that the Government have changed their proposal after the chaos and criticism of their approach in the other place last week. Parliament should have the right to debate and vote on the opt-in of the 35 measures that the Government have decided are the most important and crucial to national security and public safety, including—but not only—the European arrest warrant. The confusion we saw last week in the House of Commons was caused by the Government undertaking a rather curious and disingenuous procedural sleight of hand by referring to just 11 of the measures and not the full 35, including the European arrest warrant and then, against the Speaker’s ruling, claiming that it did include them. I hope this does not sound pompous—I have never been accused of being pompous and it is not meant to sound like that—but that does not do anything to enhance the reputation and integrity of the Government where Europe is concerned or to give any confidence that the Government can be relied on to put national interest and public security before party-political interest.
The Government have amended the Motion they originally intended to be debated this evening. The new Motion clarifies the fact that your Lordships’ House can support, or indeed oppose, all 35 of the measures, including the EAW. That is very simple and is largely what the Home Secretary and Prime Minister promised. However, I was surprised that the Minister did not mention, earlier in the debate, a point referred to by the noble Lord, Lord Hannay. When this House discussed the negotiations regarding the opt-in, we endorsed the 35 measures at that time. This was not the Motion before the House of Commons. I listened with great care to the excellent speech by the noble Lord, Lord Boswell, which I think he made more in sorrow and disappointment than in anger. I have known the noble Lord for a long time. In the first committee I ever served on in Parliament, the noble Lord was leading from his party as the shadow Minister and I was on the government side. We were bringing in the national minimum wage and he was leading a team of very able opposition Back-Benchers against it. Recognising the noble Lord’s experience, I hope that the Minister accepts the amendment, which is very precise and fair in its criticisms.
The noble Lord, Lord Boswell, referred to a letter that he received from the Leader of the House on tonight’s debate. I am sorry that the official Opposition did not receive a copy of that letter. It would have been helpful.
As we have heard, the handling of this issue has been quite appalling. Noble Lords who have taken part and followed these debates closely will recall and no doubt share some of our exasperation as we have tried to extract details from Ministers on the issues being debated. The noble Lords, Lord Faulks and Lord Bates, are the fourth and fifth Ministers whom I have debated this issue with, which started originally with a Statement from the noble Lord, Lord McNally.
I have asked a number of questions since the beginning of this exercise and, ever the optimist, I will raise those again in the hope that I will get some answers. I appreciate that the Government have supplied huge volumes of information but that has not been matched by clarity—a point made by the Joint Committee on Statutory Instruments. Through this whole process, the most helpful documents and information that I have seen—this point was made by the noble Baroness, Lady Prashar—were from our own EU Committee. I am grateful to that committee for its briefings in which they were able to talk to lawyers and others with direct experience of these issues. Their experience and advice were equally valuable. This issue requires a great detail and accuracy, yet it has every appearance of a political charade designed to placate anti-European sentiment without full and proper examination of the detail of all its implications. Let us set tonight’s debate in context and be clear about our position in the Labour Party and our commitment to the necessity of fighting crime across boundaries.
The key parts of the EU-wide co-operation that we support and now recognise in the 35 measures are mutual exchange of information in criminal investigations, locating and confiscating the proceeds of crime, criminal record checks, joint cross-border investigations and the European arrest warrant. They are essential crime-fighting tools. This is not some theoretical argument about whether we are pro- or anti-EU co-operation. This debate should only ever have been about hard-nosed, practical measures in the interests of the safety and security of UK citizens. Those of us who made the case for the European arrest warrant welcome the Government’s conversion to its value and importance and the eventual acceptance of the European supervision order which I am sorry was delayed by the Government. It would have been very helpful in making the case for the European arrest warrant had that been brought in earlier.
We have heard examples of problems with the European arrest warrant. The noble Lord, Lord Inglewood, spoke about the important changes that have been made. But equally there are numerous other examples. When Jeremy Forrest left the country with a young schoolgirl, he was brought back within days. That would not have happened prior to the European arrest warrant. There are other cases where terrorists have been brought back to the UK much more quickly than they would have been without the European arrest warrant.
Some of us in your Lordships’ House are old enough to remember the costa del crime, when criminals fled to Spain and were not brought back for months or even years. There is a huge value in the European arrest warrant and I am shocked that so many noble Lords are prepared to take on board a few cases. They do not want to change the European arrest warrant but instead throw the baby out with the bathwater, denying its value to British citizens.
We welcome the Government’s conversion on this issue. We welcome the Government’s acceptance of the value of joint EU investigation teams, the acceptance that crime does not stop at the Channel and that such co-operation is essential. We are now clear about what the Government are proposing we opt back into. I am grateful to the Secondary Legislation Scrutiny Committee for its 13th report enhancing that clarity. I share its criticisms of the lack of clarity in the Explanatory Memorandum.
The noble Lord, Lord Boswell, made an important point about the 35 measures. Measures proposed previously by the EU Committee beyond those 35 have not been given consideration in full and by Parliament. I can think of one in particular that I would have been interested in considering further—recognition around driving offences. If you talk to people in the streets they will tell you time and again that they do not believe the issues of co-operation on driving offences and disqualification are taken seriously enough.
We understand what we are opting back into, but I seek clarification from the Minister on those issues that the Government are seeking not to opt back into and that we would be permanently excluded from. In terms of numbers there were originally 133 crime, law and order, and policing measures, and the Government wanted to opt back in to 35. An additional seven were replaced and the Government opted in. There was a lot of debate in the press at the time, with the two government parties arguing about the precise number of measures that would be opted out of and opted back into.
For there to be any real value in this process it had to be far more than a tidying-up exercise of jettisoned measures that were defunct, irrelevant or useless. There had to be some meaning to it. It could not just be some kind of academic exercise in clearing up those that could have withered on the vine, a point that my noble friend Lord Davies made. The noble Lord, Lord McNally, was the first Minister to raise these issues in your Lordships’ House. He referred to measures that were obsolete, defunct or simply unused. He wrote that the Government were keeping the wheat and losing the chaff. I asked the noble Lord, Lord McNally, in 2012, the noble Lord, Lord Taylor, in 2013 and in 2014, and the noble Lord, Lord Bates, last week for some clarity on what that meant and the value of the measures that the Government want permanently to opt out of. There are three noble Lords here who have experience of this issue. To date, I have received no meaningful answers.
The questions are straightforward. I shall have one last shot at this: can I try again? First, how many and which of the measures of around 100 that the Government plan to opt out of permanently are of any value or even apply to the UK? Secondly, how many were being used and in operation prior to the opt-out decision and how many of those that have been permanently opted out of were harmful to the interests of the UK? Some clear answers to those questions would be extremely useful. Can the Minister answer those? Is he about to intervene?
Baroness Smith of Basildon
I will be patient—I know that he is just taking notes.
To bring clarity to this debate it would be really helpful to know whether this is a serious policy process to ensure the safety and security of British citizens, or whether it is a numerical exercise carried out for party political reasons and of no real value. One of the noble Lords from UKIP referred to the by-election happening later this week in Rochester. I hope that this debate has played no part in the Government’s decision in what they were seeking to do in opting in and opting out. It has to be a valuable exercise, or it is cosmetic. We need answers.
Finally, can I make a plea to the Government for evidence-based policy-making? Unless I receive an answer tonight that would convince me to the contrary, I believe that in so many ways we seem to have government by numbers. We have seen it in the nonsense of net immigration figures. Success for the Government on net migration reduction would be to have lots of highly qualified professionals leaving the country and a huge reduction in fee-paying students not coming to the country. As far as the Government are concerned that would be a success. What a nonsense.
On the Deregulation Bill and the Government’s policies on regulation, every impact assessment makes it clear that for every new regulation that comes in, two have to go out. Why is there no assessment on the value of what the regulation does? Why are numbers so important here? What magic is there in the figure of 35 regulations to be opted back into without a full assessment of those that are being permanently ditched? In all these contexts, numbers alone are irrelevant. What matters is their value. That is what we need to understand from the Minister tonight. Can he bring clarity to this debate and explain in practical terms, not political ones, the value of this very long exercise, which has no doubt been very expensive?
Lord Faulks
My Lords, I thank all noble Lords who have taken part in this debate. It has been remarkable for the self-discipline exercised by speakers in dealing with complex matters that raise strong feelings on various sides. It is not the first time that we have visited these issues in this House. As the noble Lord, Lord Hannay, said, in July the matter was dealt with in some considerable detail.
At the outset, I pay considerable and very well merited tribute to the House of Lords committees, which have scrutinised and re-scrutinised with great rigour the complex mechanism and the pros and cons of the opt-out and the opt-in. If that has not been made sufficiently clear beforehand, I make it clear now. The House is greatly in the debt of those committees, their chairmen and members. The process has been extremely thorough, and the House of Lords, through those committees, has done its job very well.
Lord Faulks
I am certainly not in a position to criticise the Speaker; it would be entirely improper for me to do so. I am entitled to comment on what transpired in the House of Commons. I did not acquit anybody of contributing to what was a thoroughly uninformative debate. The position, as far as the Opposition were concerned, was that the shadow Home Secretary felt that the scope of the debate did not permit her to discuss the European arrest warrant, and that was the view of many in the House of Commons. The Speaker gave the observations that he did, but I do not think that it is appropriate for me to criticise him or not.
The shadow Home Secretary was also asked during the debate whether the party opposite would have exercised the opt-out—and, if so, which measures it would have opted into. Her response was, “Nice try”, so I am not sure that that was a particularly dignified response to what was a serious question.
Baroness Smith of Basildon
The Minister is straying somewhat. He is here to explain the behaviour and conduct of the Government—who were, as the noble Lord, Lord Stoddart, said, criticised by the Speaker. He seems to want to deflect that criticism on to the Opposition. May I suggest that he returns to his brief and tries to explain how the Government made such an absolute shambles of this whole process?
Lord Faulks
It is necessary, I would suggest to the House—and I am about to move on to the European arrest warrant—for those who may not have had the opportunity to read the debate to appreciate what went on. Those who have read it will form their own view as to how helpful it was.
Considerable anxieties have understandably been felt in the past about the European arrest warrant and about particular cases. There is insufficient time, as the House will understand, for me to go into the details of those, but what is important is the fact that the European arrest warrant now has additional safeguards. In one of the more useful contributions to the debate in the other place, the right honourable James Arbuthnot pointed out that there is considerable judicial oversight of the European arrest warrant. Following the changes in the law made by the Anti-social Behaviour, Crime and Policing Act, a British judge must now consider whether the alleged offence and likely penalty are sufficient to make someone’s extradition proportionate. A British judge must also consider whether measures less coercive than extradition are available to foreign authorities.
As to dual criminality, the European arrest warrant must be refused if all or part of the conduct for which a person is wanted took place in the UK and is not a criminal offence in this country. Furthermore, a decision to charge and try an individual can be questioned by use of video link without the suspect having to leave the United Kingdom. These are all important safeguards which should mitigate some of the anxieties that have been expressed about the unsatisfactory nature of foreign jurisdictions. A large number of people who are not necessarily enthusiasts for the European project have been persuaded that it would be a great mistake to lose the European arrest warrant. I respectfully agree with the noble Baroness, Lady Smith, that this is a correct decision.
My noble friend Lord Lamont asked whether it was possible for us to come to a separate, bilateral treaty with other European Union countries—after all, we have extradition agreements with other countries. There is of course the considerable problem of timing, as the House will be aware. Denmark negotiated a separate deal. The deal struck through Protocol 36 means that the United Kingdom has to follow the rules set out. Denmark has its own protocol so could make its own arrangements, but they are not the arrangements that we would want to copy. Every agreement that Denmark has made separately with the EU has required it to submit to the jurisdiction of the European Court of Justice and, in effect, the Danish agreement simply binds Denmark to EU law by another means—which I suspect is not what most who are interested would have in mind. Of course it would be possible, but it would be cumbersome and it would probably be expensive to make such separate agreements. Far more sensible is to have the now tried and improved system of the European arrest warrant that we have.
Lord Faulks
I am very grateful to the noble Lord, Lord Hannay, for his intervention. I absolutely agree with his observations. Indeed, moving from the specific to the general, what is really important about the European arrest warrant is that it is not exclusively about Europe. It is a practical matter about criminal justice, acknowledging the fact that crime knows no borders, and that we must have satisfactory arrangements. This is the best way of securing those. Whatever noble Lords’ views—relative enthusiasm or otherwise—for the European project, the arguments seem to be overwhelming now in favour of the European arrest warrant.
Time does not permit me to go into arguments about matters that we have not yet reached a conclusion on; for example, Prüm was mentioned. The United Kingdom will not join Prüm on 1 December. Regarding law enforcement and other member states, I have no observations about the conversation referred to by the noble Lord, Lord Sharkey. Others have said that it will bring benefits. Agreement has been reached that we will conduct a full business and implementation case and a small-scale pilot. This will consider not only any benefits of Prüm but also the civil liberties protections available. This will be reported to Parliament by way of a Command Paper in September 2015 and the House will then be given a vote on the matter.
Regarding the lateness of bringing this matter to Parliament, I submit to the House that this is the earliest possible opportunity following full agreement of the Council, which was achieved only the week before last when Spain finally dropped its reservation to approve a good deal for Britain and a package of measures vital in the fight against serious crimes. It will not have escaped the notice of the House that it is only nine working days before 1 December 2014, so we cannot afford further delay. For that reason, it is right that we consider, and vote on if necessary, the overall package and the regulation together.
The noble Baroness, Lady Smith, asked about a letter written by the Leader of the House. That letter is dated only today. However, it forms part of a communication between the noble Baroness and the noble Lord, Lord Boswell. I will make sure that she and all participants in the debate receive a copy of that letter. It explains the process by which this matter has reached the House and attempts to clarify the position. I entirely accept that the debate has come at a rather later hour than any of us would have liked. One of the reasons it was scheduled tonight was to accommodate the EU Committee, but matters went on longer than expected so noble Lords have had to be economical in their observations in relation to the various issues that have arisen.
We have now reached the position—albeit criticisms have been made forcefully and, no doubt, with some considerable justification—where we have completed the process in this House. We have had a number of debates about the merits, which we have answered—
Baroness Smith of Basildon
My Lords, can the noble Lord answer the questions that I have posed, which I have posed in all our debates, or can he write to me with his answers, given the time that we have and that he still has not reached my questions?
Lord Faulks
Clearly, I do not have time to go through the reasons why we have not opted into all the measures that we have not opted into. The presumption is that we opt in to matters that we consider are in our national interest, and we have given reasons for doing that.
Time is running against me. I entirely accept that matters might have been more expeditiously dealt with, but a number of factors caused delays. The Government have been kept very much up to the mark by your Lordships’ House. I hope that with the explanation that I have been able to give and the letter which has so recently been written, the noble Lord, Lord Boswell, will feel inclined to withdraw his amendment to the Motion.
Anti-social Behaviour, Crime and Policing Bill
Debate between Baroness Smith of Basildon and Lord Faulks(10 years, 3 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this gives me an unexpected opportunity to come to the Dispatch Box. On behalf of the Ministry of Justice, I would welcome a conversation with the noble Lord, but I can go no further than that.
Baroness Smith of Basildon
My Lords, as we get to the end of the Anti-social Behaviour, Crime and Policing Bill we have, given the amendments today, a sense of achievement. However, if I am honest—and I think the Minister would agree—there is a sense of some relief. I entirely concur with his comments about the support from around the House and his civil servants in the Box. The Bill has had a long and sometimes tortuous journey. There were times when I thought perhaps we needed injunctions for nuisance and annoyance and for these to be employed in your Lordships’ House. There were a number of scheduling changes which, fortunately, did not interrupt the Minister’s birthday party. However, they did cause some anxiety in ensuring that we were properly prepared for each stage of the Bill. We coped with all those and I am grateful to him and to his Front Bench colleagues, the noble Lords, Lord Ahmad and Lord Faulks, for their support.
When the noble Lord, Lord Faulks, was speaking from the Back Benches he was very much in favour of an amendment relating to an eviction power in England for those found guilty of rioting offences. Unfortunately, when he moved to the Front Bench we lost the powerful and persuasive speech he would have made on Report. We look forward to hearing other contributions.
We are grateful for the constructive way in which the Minister approached our amendments, particularly the two tabled today and that tabled by the noble Lord, Lord Dear, which significantly improve the Bill. I am grateful to my colleagues on the Opposition Front Bench, my noble friends Lord Beecham and Lord Rosser, my noble friend Lady Thornton, and our Whip, my noble friend Lord Tunnicliffe, who did an excellent job. I am also grateful for the expertise of our Back-Benchers. I am thinking, in particular, of my noble friend Lord Ponsonby, my noble friend Lady Henig, and my noble friend Lord Harris—although he was described as mischievous by the Minister—whose expertise was useful and wise.
I concur with the noble Lord, Lord Pannick, on the one outstanding issue on miscarriage of justice. All other issues have been resolved today, so I hope we can reach agreement on that, as your Lordships’ House made its view very plain. I hope we can proceed with the next Bill, on immigration, with the same constructive dialogue as the Minister has been willing to undertake on this one.
Anti-social Behaviour, Crime and Policing Bill
Debate between Baroness Smith of Basildon and Lord Faulks(10 years, 4 months ago)
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Lord Faulks (Con)
I, too, am a member of the Joint Committee on Human Rights. Discussion, as your Lordships will anticipate, ranged far and wide over this new Schedule 8 amending Schedule 7 to the Terrorism Act. Giving the perfectly proper right to stop and seize and, at the same time, preventing so far as possible any abuse of that power is a difficult balance to strike. However, it is worth recording that we concluded that the Government had made out a case for a without -suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism, the significance of international travel, the overall threat picture and the evidence seen by the independent reviewer demonstrating the utility of non-suspicion stops at ports in protecting national security. Therefore, we also concluded that the retention of this power under Schedule 7 was not inherently incompatible with Articles 5 and 8 of the European Convention on Human Rights.
We are in the slightly unfortunate position of still awaiting the report by the independent reviewer of terrorism legislation on the David Miranda case, which will perhaps shed some light on this power generally. The Government clearly pay considerable heed, quite rightly, to what the independent reviewer of terrorism recommends but, with great respect to my noble friend Lady Hamwee, simply subcontracting responsibility, as her Amendment 56YK would, from the Secretary of State to the independent reviewer would go rather too far.
This is a very difficult balance to strike. The Government have come some way towards a balance in favour of those who might become the victims of an abuse of power. The question is whether they have come far enough.
Baroness Smith of Basildon (Lab)
My Lords, this has been a useful debate. The issues that have been raised are around the difficult balance between civil liberties, national security and counterterrorism measures that the noble Lord, Lord Faulks, referred to. The points made today about those issues are extremely useful and I look forward to hearing the Minister’s comments on them.
We are greatly assisted today by the supplementary written evidence of David Anderson QC. We are indebted to him because, when giving evidence on 12 November, he was asked to spell out what changes he would recommend to the port powers in Schedule 7 and the Minister, Damian Green, had already said in the other place that he expected recommendations. At Second Reading in your Lordships’ House, I said that I thought it was optimistic of the noble Lord, Lord Avebury, to hope that we would be able to see any such recommendations from David Anderson while we were still debating the Bill. I thought he was being optimistic but that optimism was well founded. We are indebted and grateful to David Anderson for the efforts that he must have gone to in order to ensure that we had his recommendations before we had completed our deliberations—indeed, as we were having our Committee debates. I hope that the Minister will endorse that. That is very helpful and greatly welcomed.
I shall not comment on each individual amendment, but a number of the amendments before us today relate to his report. As I said, I will be interested to hear the Government’s response to them as there are areas to which the Government may want to give further consideration and on which they may want to bring forward amendments before the conclusion of proceedings on the Bill.
On Amendment 56YJ and the issue of privileged material, although David Anderson reflects that identifying the details of changes is difficult before we have the Miranda judgment, he identifies this as an area where there need to be safeguards and clarity around those safeguards. It is not an area where there should be any confusion or ambiguity. It would be helpful today if the Minister were to say on behalf of the Government whether they accept the principle of David Anderson’s recommendation in this regard. We are certainly sympathetic and would welcome the opportunity to consider further the kind of safeguards that could be introduced.
Also on Amendment 56YJ, I think it was in the Beghal v DPP decision that the court supported the introduction of a statutory bar to Schedule 7 admissions in a subsequent criminal trial, although it also recognised that this would have to be given detailed consideration. David Anderson has now added his support to that of the court and that also forms part of his recommendations. Again, we would be very sympathetic to that and would be interested to know whether the Government intend to support that recommendation, which this amendment reflects.
Amendments 56YK and 100A refer to a process by which effect could be given, almost automatically, to the recommendations of the independent reviewer of terrorism legislation. There is some merit in looking at how recommendations could be acted on more quickly but we would welcome the opportunity to see more detailed proposals. It would be helpful to have a mechanism to take action more quickly than always having to wait for the next legislative slot for primary legislation in the Government’s timetable. However, whether secondary legislation, even with the affirmative procedure, would give adequate opportunity for effective scrutiny by Parliament, which should be making the decisions, has to be looked at in some detail.
On Amendment 62A, in the names of the noble Lords, Lord Lester and Lord Avebury, we would certainly be supportive of removing the restrictions if the interview takes place in a police station. Amendments 57A, 61A and 61B would establish limits on the duty to give information and documents that are held electronically. We have concerns about how this law is currently being applied. I note that David Anderson has also called for appropriate safeguards regarding the use and retention of such data. It would be helpful to hear from the Minister whether the Government consider that the problem is a lack of clarity in the existing law or whether further action needs to be taken.
We would also be sympathetic to Amendment 64ZA on the periodic review of an individual’s detention. I would welcome the Government’s comments on David Anderson’s recommendation that the intervals for review should be specified in the schedule, as outlined in the amendment, and not just in guidance. There can sometimes be a lack of clarity around the purpose of guidance. The importance of it being in the schedule and not just in guidance was also included in the JCHR report. The Government have indicated that they may support this, so I am optimistic about a positive response on that one.
This is quite a difficult area in which to find the appropriate balance. The House has heard about the attention to detail that has been given to this range of issues. It would be helpful if the Minister could clarify in his response the Government’s views on these issues, particularly in the light of the amendments which reflect so much of what is in David Anderson’s recommendations.
Anti-social Behaviour, Crime and Policing Bill
Debate between Baroness Smith of Basildon and Lord Faulks(10 years, 5 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, first, I welcome the fact that we are having this debate, because the injunctions were clearly the major issue raised at Second Reading. I think that most noble Lords who contributed to that debate raised this issue.
However, I start by saying that the late scheduling of today’s Committee sitting is rather unfortunate. There will be noble Lords who would have wished to table amendments to today’s debate but who, given that the sitting was scheduled only on the last sitting day before Recess last week, may not have had the opportunity to do so. The noble Lord, Lord Ramsbotham, made the point that we now have a clash with the Children and Families Bill, which is also in Committee as we speak. I suspect that, given the nature of the subject before us today, many noble Lords who are in that Committee would also wish to contribute here. My final plea is that this time yesterday I was in Argentina, and I arrived in the UK only a few hours ago. I promise not to do my Eva Peron impression on this issue—although perhaps in passion if not in length. The scheduling is unfortunate, and I hope that the Minister will take that message back. I would not want noble Lords who have a contribution to make to this debate to be unable to do so.
The noble Lord, Lord Greaves, has done us a service with his amendment, and I am also eager to probe the Government’s thinking on this issue as well. I am certainly not against children and young people being held responsible for their actions; we defined that principle in anti-social behaviour orders. We have had some debate today about the criminal age of responsibility for young people, but the amendment and the Bill are not really about that. They are about whether a young person aged 10 is likely, on the balance of probabilities, to cause annoyance or nuisance to anyone. I am not a parent, but my experience of 10 and 11 year-old children is that they inevitably cause nuisance and annoyance to somebody at some point. I do not know whether the Bill is an appropriate vehicle to make that kind of behaviour subject, on the balance of probabilities, to such an injunction. I find that somewhat strange and I would like the Minister to develop his thinking and explain why the Government think that it is appropriate.
I can think of numerous examples where 10 and 11 year-olds would cause nuisance and annoyance: persistently kicking a ball at a fence, breaking that fence or causing disruption in the neighbourhood. That is the very point that my noble friend Lord Harris made: the Government are trying to squeeze a range of interventions into one which, inevitably, will not be appropriate in every case.
I wonder, if a complaint is made about a young person aged 10 or 11 causing nuisance or annoyance, how the police are going to investigate to see whether it is appropriate that such an injunction be placed on that young person. The JCHR made the point that there is no requirement whatsoever in the Bill to judge what is in the best interests of the child before such an injunction is imposed. It would be helpful if the Government would explain their thinking why it would be appropriate to issue an injunction when a 10 or 11 year-old may cause nuisance or annoyance.
Lord Faulks (Con)
Perhaps the noble Baroness can help the House. Section 1 of the Crime and Disorder Act 1998, passed by the previous Government, permitted local authorities to apply for ASBOs in respect of persons aged 10 or over, subject to conditions. Does the party opposite have a changed view now, in view of the amendment?
Baroness Smith of Basildon
We want the Government to justify their position. As I said at the beginning, I think it appropriate for young people to be held responsible for their actions, but I want to probe why the Government think that this kind of injunction is appropriate. The anti-social behaviour order, as we shall debate later, required a much higher level of proof of nuisance. In the injunctions contained in amendments made in 2003 to the Housing Act, there is a lower level, as we have heard from the housing associations which have contacted us. In this specific instance, I think that the Government need to justify why they consider this injunction appropriate as the only means of dealing with such behaviour.