Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I was very happy to put my name to all these amendments. As you will be aware, the Cross Benches do not suffer from having Whips to tell us what to do, but when a call comes from the All-Party Parliamentary Group for Cycling and Walking, which I have the privilege of being an officer of, that is as near to a three-line Whip as a Cross-Bencher would recognise.

I was a head-hunter for 30 years, so, during that time, one met a range of human beings, many of whom had a particularly high view of the value of their own contribution in a variety of ways. One learned that there were three things in particular that the male of the species thought they were extraordinarily talented at. One of them was making love—I will leave it to noble Lords and noble Baronesses to decide whether the males of their acquaintance meet that hurdle.

The second is that, when interviewing someone, most men, particularly senior businessmen, think that they are extraordinarily talented at telling—within about 30 seconds—whether they are any good. The evidence suggests that they are 100% wrong all the time.

The third thing that many men think they are extraordinarily talented at is driving. Most of us tend to think that we are pretty good drivers—above average—and while, like most human beings, we occasionally make a mistake or forget one or two things that we should not forget, we are pretty relaxed and generous towards ourselves.

In researching this group of amendments and others that follow, the most clear and consistent factor across the whole range of road traffic offences and behaviour is that they are dealt with in an almost entirely inconsistent manner. The inconsistencies jump out at you, because many of the terminologies used are open to interpretation. Many of these terminologies were created and put into statute or guidance in the 20th century—and we are now, in case noble Lords had not noticed, in the 21st century. In the last two decades, the influence of technology has increased hugely, as all of us who drive are very aware.

I, perhaps, have a high danger capability, but I have bicycled in London for 40 years, on and off, and I drive. When I drive, like most people I have at least one device working in my car. One such device cleverly tells you when there are speed traps coming up, or policemen lurking by the side of the road—or whether there’s been an accident ahead. Equally, however, one is often listening or talking, or, even worse, texting. When I bicycle, I have nothing in my ears and I have all my senses about me. What I see, day in, day out, is pretty egregious behaviour, whether by motorists, cyclists or people on e-scooters—including e-scooters ridden by parents taking their four to five year-old children to school, standing in front of them with neither of them wearing a helmet, something that I find fairly alarming. I see this all around: it has become normal.

Until and unless we are more consistent and clearer about how we define acceptable behaviour when driving, or using any form of transport, and what is unacceptable—what is legal, what is illegal, and the gradations between them—we will continue to have an unacceptable level of inconsistency and more heart-rendingly tragic stories. My goodness, you find a lot of them if you do your research.

It is difficult to find rhyme or reason for such inconsistency. The Minister, as a lawyer, is well aware of the dangers that arise when there is inconsistency in how the law is understood. The Minister will also be aware, as are many lawyers, of the many opportunities that inconsistency affords lawyers. When there is inconsistency, or lack of clarity, in the law, it benefits a huge and very profitable industry in this country consisting of law firms that specialise in enabling people to escape, in a variety of ingenious ways, what are almost certainly the right penalties. That industry exists because of these inconsistencies.

These are clearly all probing amendments, but my plea to the noble Lord is that there is real reason and logic behind them, which is that a lack of clarity leads to inconsistency and stories of human tragedy.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Lord, Lord Berkeley, for his introduction to this group, and his outline of the problems. I also agree with much of what the noble Lord, Lord Russell, said about inconsistency. Unfortunately, however, the provisions in Clause 65 are rather unfair and disproportionate. This provision does not address the mischief. We already have the highest per capita rate of imprisonment in Europe, at 133 per 100,000, and this will not help.

I support Amendment 168, for the reasons outlined by the noble Baroness, Lady Hayter.

Clause 66 follows hard on the heels of Clause 65 in terms of its undesirability. Can the Minister confirm that these changes would increase the prison population, and if so to what extent?

One of the mischiefs is that, in the event of any road traffic accident, collision, or whatever you like to call it, the insurance companies and relevant contracts forbid policyholders from contacting the other party and, in particular, expressing any form of remorse or forgiveness. This totally flies in the face of the principle of restorative justice. The families, friends and victims can rightly feel aggrieved, due to the insurance regime and not the criminal law. There are other difficulties which I will not weary Committee with. The noble Lord, Lord Berkeley, was right to refer to serious injustices.

There is a problem with securing convictions for dangerous driving; convictions and prosecutions are often for the lesser offence of careless driving. I have much sympathy for the comments on careless driving and dangerous driving by the noble Lord, Lord Berkeley. I can say what the two offences are, but I have difficulty knowing how they are applied.

Clause 65 is about careless and dangerous driving in connection with drink or drugs. The maximum penalty for Clause 65-type offences is currently 14 years, and I have rarely seen anything like that applied. The Government are now proposing a more serious penalty—a life sentence—than for grievous bodily harm without intent.

The problem with the new provisions is that some of the substance thresholds for drug-driving offences are very low—well below the level causing impairment as advised by scientists. Furthermore, some substances can remain in the body for quite a while. Some people, such as noble Lords, never take recreational drugs. For some communities and socioeconomic groups, however, drug-taking is common. This could result in serious unfairness, with some offenders faced with a life sentence when their driving at the relevant time was not actually impaired by drugs.

Amendment 152, in the name of the noble Lord, Lord Berkeley, proposes a new definition and distinction between careless driving and dangerous driving, by reference to the standard required to pass the driving test. I remind Committee that I hold a qualification as an HGV driving instructor, albeit that it is a bit out of date.

It is surprisingly easy to get an automatic failure on a driving test, particularly under the heading “Examiner takes action”. Suppose that a candidate is driving along a main road but has left their left hand indicator on. Suppose that another vehicle is waiting to emerge from a side road and could be fooled into thinking that the test candidate intends to turn left off the main road. At that point, the examiner will say, “Cancel your signal”. That would be an automatic failure, because the examiner took action. I do not think, however, that any of us would call that dangerous driving. I think, therefore, that Amendment 152 is flawed.

However, I agree that it is too difficult to secure a conviction for dangerous driving. I wonder whether the careless driving offence ought to be confined to a momentary or short lapse in driving standards while the new offence of reckless driving ought to consider whether there has been a pattern of numerous, relatively minor contraventions that, taken gather, make for a much more serious offence. I suggest that the Minister sets up a meeting with relevant officials and subject matter experts so that we can discuss these important matters offline and understand them better.

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[Lord Wolfson of Tredegar (Con)]

The noble Baroness and I are sitting on opposite sides of the House. If I was driving, I would normally open the door with my right hand, so I was turning round to open it. I think my example was right, but I will look at the video tonight and write to the noble Baroness if I was wrong.

[Earl Attlee (Con)]

My Lords, my noble friend has been very helpful, but I am slightly worried that he does not fully appreciate how difficult it is to secure conviction for dangerous driving. On the Dutch reach, could we not include this in the driving test, which would mean that driving instructors would have to teach their students how to do it? I like to think I am an experienced driver and I carefully check my mirror before opening the door. Not doing so is an easy mistake for a novice driver to make, but it would be easy to train those drivers to use the Dutch reach.

[Lord Wolfson of Tredegar (Con)]

I am certainly aware of the differences between dangerous driving and careless driving. Dangerous driving is reserved for those instances of driving which fall “far below” the objective standard. The question of whether the Dutch reach should be included in the driving test is a matter for colleagues at the Department for Transport. I will pass that suggestion on; I hope they will get back to my noble friend on that point.

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[Lord Berkeley (Lab)]

My Lords, I am probably alone on this one: some years ago I went away from my wedding service in a pedicab in London, and I rather enjoyed it.

I understand where the noble Baroness is coming from, but I think the definition in this amendment will cause a few problems. It says that a pedicab is

“a pedal cycle, motor cycle or power-assisted cycle, or such a vehicle”—

I did not know that cycles were vehicles, but maybe that is right—

“in combination with a trailer, constructed or adapted for carrying one or more passengers.”

My daughter used to take her children to school sitting in a trailer on the back of a bicycle, and that would be covered by this amendment. I do not quite see why she should not continue to do that. It was not motor-assisted, but it could have been. This needs looking at.

I think what the noble Baroness is getting at is that she does not like the look of these things. I would agree—they do not look particularly nice. The biggest problem is that many are not insured. That is a serious problem. Whether they need controlling or licensing by TfL needs a bit of debate. The black cabs obviously do not like them because they take away business. Are we in the business of protecting black cabs because they look nicer than these pedicabs that go around with not just lights flashing but some pretty horrible music coming out of them sometimes? On the other hand, are we here to regulate music and pedicabs? I do not know. The key for me is that they should have third-party insurance at the very least. Whether their fares should be controlled is a debate that is probably down to TfL to decide. Secondly, who is going to enforce this?

The other type of “vehicle”, if you can call them that, are freight cycles, which are beginning to appear in the streets of cities, London included. Sometimes they have two wheels, sometimes three or four—I do not have a clue which—but they distribute freight to outlets in the city as an alternative to trucks and vehicles, which cause a lot of pollution if they are not electric. Do we want to prevent them going around? They might be plying for hire, and the customers would be moving freight, not passengers. Whether they should be insured is debatable, because cycles are not required to be insured at the moment, and I expect we will have a debate about scooters in a couple of years’ time. But it is questionable whether a freight cycle, with or without power assistance, should be covered by this. I suggest that it should not be. This goes back to the only issue on which I think I disagree with the noble Baroness, which is insurance, because they are carrying passengers for hire. If I am carrying my family or some friends as passengers in a trailer on the back of my bike, I do not see why I should have to be insured if I do not feel like it. I think that is the same as on a bicycle.

I hope the noble Baroness will consider these issues. If she comes back on Report with a changed amendment, she should confine it to things which really matter from the safety point of view, rather than widening it to freight, family trips or something else.

[Earl Attlee (Con)]

My Lords, I rise briefly to support my noble friend. It is ludicrous that pedicabs are regulated in some parts of the country but not in London.

[Baroness Randerson (LD)]

My Lords, the noble Baroness has made a very strong point about an issue which applies only in a specific part of the country. Most of us do not have experience of this issue. As the noble Lord, Lord Berkeley, said, there is a more general trend in the use of bikes as cargo bikes—and, indeed, my own son also used to take his young children around in a little cart behind his bike. It used to worry me greatly. The girls no longer like to be reminded of it, but they seemed to think it was great fun at the time. Of course, the issue of insurance is important. It seems to me that the point the noble Baroness has made is that there is a long-overdue need for a review of hire services—vehicles for hire—and since the use of bikes is much more common these days, we really should include them in that review.

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[Lord Pannick (CB)]

My Lords, I have added my name to the suggestion that this clause should not stand part of the Bill. I agree entirely with what was said by my noble and learned friend Lord Hope and the noble Baroness, Lady Randerson, on the punishment of imprisonment. There is an important difference of principle between causing serious injury by dangerous driving and causing serious injury by careless or inconsiderate driving. The principle is that the offence of causing serious injury by careless or inconsiderate driving falls into the category of “There but for the grace of God, go I”. It is very difficult to see why the penalty of imprisonment should be appropriate when all the steps being taken in the criminal justice system are to recognise that we send far too many people to prison and that prison has, as the noble Baroness, Lady Randerson, eloquently said, very adverse consequences for the offender, their family and society generally. The Government need to present a most compelling justification for a proposal that more people should be sent to prison in circumstances such as this.

[Earl Attlee (Con)]

My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.

[Lord Thomas of Gresford (LD)]

My Lords, as this is about causing serious injury by careless or inconsiderate driving, the state of mind—the mental element—is involved. The noble and learned Lord, Lord Hope, referred to the case of Lawrence in 1982, a decision of Lord Diplock. In that same year I was appearing before the Appellate Committee in a case called Caldwell, in which a person who was intoxicated had gone to sleep in the doorway of a hotel, lit a fire to warm himself and severely damaged the hotel. The issue was whether he was reckless in so doing. What was his state of mind, his mental element? It was agreed that he had no intent to do it but Lord Diplock held that the conviction should be upheld because an ordinary person who was not intoxicated would have realised the consequences of what he was doing, although Caldwell himself had not done so. He spent quite a long time in prison, and it took 22 years for my argument to succeed in the case of G in 2002, when Lord Bingham held that Caldwell had been wrongly decided and that the test of the mental element has to be subjective—that is, it is necessary for the person to have a subjective understanding of what is going on. That is very similar to the issue we are discussing in this case.

However, I believe that Clause 66 is simply wrong in principle. It threatens to penalise the outcome of the offence—serious injury—with imprisonment when the mental element of the offence of careless driving is no more than negligence. I accept that there is a precedent for penalising driving offences by reference to outcomes. Clause 65, relating to causing death by dangerous driving or careless driving while under the influence of drink or drugs, has that effect, but dangerous driving and careless driving while under the influence of drink or drugs both have a far more serious mental element than simply careless driving. Dangerous driving involves falling far below the standard of a reasonable driver, and the drink or drugs offence involves deliberate impairment. In either case, the offending driver is knowingly taking a risk with the safety of other road users, so it is his mental element that is being punished in those serious cases.

On the other hand, as other noble Lords have said, careless driving involves driving that falls below the standard of care of a prudent driver—no more than carelessness, negligence or, in the terms of the clause itself, “inconsiderate” driving. A mistake, or inadvertence, may suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have ever taken before, and offends against the principle that the seriousness of an offence should depend not just on the act done but on the state of mind of the offender.

Almost every accident is the result of negligent driving on the part of at least one of the drivers involved—that is, in the absence of mechanical failure or an unexpected event, such as the wasp sting that we have heard about, but such events are extremely unusual. Sadly, a vast number of accidents involve serious injury—a broken limb, for example, being “serious injury” for this purpose. The vast majority of accidents arising from negligence, whether or not they cause serious injury, do not lead to prosecutions. The clause would leave it to police and prosecuting authorities to pick out the few accidents that they wished to lead to prosecution, and would expose drivers to the risk of imprisonment for an accident that arose out of a simple mistake.

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[Lord Marlesford (Con)]

My Lords, I very much agree with the noble and learned Lord, Lord Hope, and other noble Lords who have spoken. It seems that there is a perfectly obvious, very serious penalty which can be applied to the most egregious cases of careless driving, where there is very serious injury, and that is a lifetime ban on driving. That would be much more effective than imprisonment.

[Earl Attlee (Con)]

My Lords, there is an obvious difference between an offence of careless driving and a health and safety offence: the health and safety offence is ongoing—someone is operating a dangerous machine, they have not done proper risk assessments—whereas an offence of careless driving can be a momentary lapse.

[Lord Judge (CB)]

My Lords, I wonder whether I should say that I am not going to make a second speech polishing up my first. I apologise to my noble and learned friend Lord Hope that I got my words in before he did.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have to say that I find myself in the somewhat invidious situation of supporting the Government. The Labour Party supported this clause in the other place; we agree that it fills a gap in the law and allows the high level of harm caused by these incidents to be recognised.

The debate has focused essentially on the possibility of imprisonment for careless driving, and the noble and learned Lord, Lord Hope, made it clear in his speech that that was the burden of his objection and the reason he was moving his amendment proposing that the clause do not stand part of the Bill.

The burden of the argument made by the noble Lord, Lord Thomas of Gresford, was that the mental element in the case of careless driving is no more than negligence and the noble Earl, Lord Attlee, said that that would be a momentary lapse, which would have a serious consequence. But when one looks at health and safety legislation, you can indeed have momentary lapses which have very serious consequences. Magistrates occasionally deal with health and safety legislation as well. In addition to that, as part of health and safety legislation that I have seen, it is about a more systemic approach to health and safety within the environment of the factory or whatever you are talking about. Nevertheless, there can be momentary lapses that lead to serious consequences and there is the possibility—although it may be unlikely—of a prison sentence for the director of a company who is responsible for health and safety matters.

As I introduce this, I acknowledge that I find myself in an unusual situation of supporting this element of the Government’s proposals. Nevertheless, I would hope that it would be a very exceptional case, where there is such egregious negligence, that resulted in a prison sentence, when the vast majority of cases are momentary lapses, possibly with tragic results. I would have thought that those types of cases would not result in a prison sentence.

[Earl Attlee (Con)]

My Lords, the good thing is that the party opposite is being consistent, because it introduced the offence of causing death by careless driving.

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble and learned Lord, Lord Hope, objects to Clause 66 standing part of the Bill and has tabled Amendment 155 in its place. We have had a very interesting and more wide-ranging debate than we perhaps anticipated when the amendment was put down. Thanks to the noble and learned Lord, Lord Falconer of Thoroton, we have got on to gross negligence. In the time available, it reminded me that it was Lord Cranworth in Wilson v Brett, back in 1843, who said that gross negligence is actually only

“negligence with a vituperative epithet”

attached. That is a little legal chestnut about what gross negligence actually is—in the civil context, I accept.

We need to focus on the fact that we are looking at driving offences, and I will come back later to whether it was a valid comparison put forward by the noble Lord, Lord Thomas of Gresford. The amendment we are dealing with here is perhaps the reverse of the approach taken in the earlier group to Amendment 152. Some of the speeches made in that context, such as that made by the noble and learned Lord, Lord Judge, are also applicable here. With Amendment 155, the noble and learned Lord, Lord Hope, hopes to add additional requirements, thereby raising the threshold for the new proposed offence of causing serious injury by careless driving.

As I said on the previous group, we are back to the issue of relatively low-culpability offences that can attract custodial sentences because the consequences can be catastrophic. Of course, I hear the point made by the noble and learned Lord, Lord Hope—it was a sort of “There but for the grace of God go I” point, if I can summarise it in that way—but, as I have said, there is a balance to be struck between the culpability of the driver and the harm that they cause. The Government believe that the current position—whereby a driver who by careless driving has caused serious injury, including perhaps very serious or life-changing injuries, may only be fined—is wrong. That is why we have created this new offence and why we believe it should be incorporated in the Bill.

I respectfully agree with the point made by the noble Lord, Lord Beith, that we have to have sight of, and due regard to, the consequences of the driving. If I may, I will come back a little later to the other point the noble Lord made, about whether prison is the only way to respond to that.

Having said that, we recognise that the standard of driving required for this offence is relatively low. Careless driving can sometimes amount to no more than a short period of inattention—we had the example of the wasp on the back seat—but we do not agree with the noble and learned Lord that we need to add a requirement explaining what we mean by “causing serious injury”, or that the definition should provide that the notional “careful and competent driver” would know that their driving was likely to cause serious injury. I am grateful for the support—at least on this amendment—of the Benches opposite and of the noble Lord, Lord Ponsonby. He also asked whether prison is the right response, and I will come back to that too.

I make three substantive points in response to the proposed amendment and the clause stand part proposal. First—I will make this point relatively softly, because I think the noble and learned Lord, realistically, if I may say, accepted that there may be drafting issues with the amendment and the scope of it—it would create inconsistencies in the law and that is because this additional test would apply only to this new offence of causing serious injury by careless driving and does not, for example, apply to the offence of causing serious injury by disqualified driving, where it might be argued that the level of culpability is even lower, because there is nothing actually wrong with the driving there at all. I will come back to that in another context.

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[Lord Wolfson of Tredegar (Con)]

I am happy to deal with that in the letter.

[Earl Attlee (Con)]

My Lords, on a couple of occasions, my noble friend the Minister has said that the only disposal available to the courts is a fine. Surely, disqualification is available? For most of us, that would be a very severe penalty.

[Lord Wolfson of Tredegar (Con)]

I accept that it may be a severe penalty. It depends who you are dealing with, and the circumstances. There are other factors which the courts have to bear in mind when considering the particular effects of disqualification on a particular driver.

Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

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

[Lord Craig of Radley (CB)]

My Lords, I support this amendment. During lockdown, mobile pet grooming businesses sprang up, with vans appropriately fitted out to wash and dry dogs, cut their nails and do whatever was needed. Regrettably, some of these mobile vans have been used as a way to steal pets, whose owners might never see them again or might be asked for a ransom payment. My daughter and her cockapoo Eddie use a reputable mobile grooming facility, but the risk of a pet being stolen in this way, particularly prevalent during lockdown, will continue if the deterrent in this amendment and the others is not adopted.

[Earl Attlee (Con)]

My Lords, I rise briefly to support these amendments. The noble and learned Lord, Lord Falconer, told us roughly how many pets had been stolen. Can the Minister tell us how many prosecutions have taken place for theft of a dog?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I rise to respond to an amendment about pet theft, but I will start by saying a few words about amendment theft. The noble and learned Lord, Lord Falconer, stole some of the Committee’s time to give us a lecture about the rule of law. I regard the rule of law as a matter of supreme importance, but let us remember what it is and is not.

First, it is not a law; it is a constitutional principle. Secondly, we can have a debate about the scope of the rule of law. The rule of law as adumbrated by Lord Bingham, for example, has a different scope from that set out by Lord Justice Laws in his book; there are different views as to the breadth of the rule of law. But everybody agrees that one has to abide by the law as set out by a court. There was no court in the circumstances set out by the noble and learned Lord. The only court involved is the court of Parliament and, with great respect, the other place was quite within its rights both legally and, I suggest, morally to set out its own procedures.

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[Lord Wolfson of Tredegar (Con)]

I cannot commit to that, but, as I say, I have heard the strength of feeling and what the noble and learned Lord has said on this topic. I am sure we can have future discussions on this point.

[Earl Attlee (Con)]

My Lords, will my noble friend take the precaution of instructing parliamentary counsel to draft suitable legislation just in case?

[Lord Wolfson of Tredegar (Con)]

My Lords, I shall put it this way: I am well aware that if we wanted to table the amendment to this Bill, we would need a properly drafted clause, and we know how to go about that.

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[Baroness Chakrabarti (Lab)]

Could I put an ethical and constitutional question to my noble friend, who is both an experienced parliamentarian and a magistrate? When I go to the airport, I understand that I shall be subject to some search, and I have no problem with that—first, because I understand that an airport is a very sensitive place and, secondly, because everybody will be subject to the same search as me. Therefore, I feel no disgruntlement. Equally, with ordinary stop and search powers, if I am stopped and searched on reasonable suspicion of a criminal offence, I may know that I am completely innocent but I shall understand that I have been stopped and searched on reasonable suspicion of a criminal offence.

What is the ethical and constitutional justification for stop and search without suspicion, when everybody is not stopped and searched, as at the airport? If not a suspect and if not everybody, who then? My fear is that, subject to the answer that my noble friend—and, I hope, in due course, the Minister—will give, the answer is that that in-between stop and search, a suspicion under Section 60-type stop and search, is almost inevitably an arbitrary and therefore potentially discriminatory stop and search.

[Earl Attlee (Con)]

The noble Lord, Lord Ponsonby, made a very interesting speech. For about the first 40 years of my life, I lived in north-west London and—on this discrimination point—I have never been stopped and searched by the police. I have had my vehicle stopped a few times, but I can perfectly well understand why the police did it. So it is quite an interesting point on discrimination.

[Lord Ponsonby of Shulbrede (Lab)]

My noble friend asked me a very interesting question, but I am not sure that I can answer it. I suppose that the short answer is that I am very conscious that this is a divisive issue and one that the police themselves have strong views on. They do not agree with each other—I have certainly heard a range of views within the police about its effectiveness or its blanket use being ineffective. I think that the answer is that the Government need to look at this issue very sensitively and be very aware of the distrust that it breeds within communities, particularly ethnic minority communities.

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[Baroness Williams of Trafford (Con)]

Of course, Section 60 is based on local policing intelligence in specific local areas. The noble Baroness has already pointed that out. I have talked about the safeguards, including statutory codes of practice, the use of body-worn video and external scrutiny; I will also talk about the use of data. The Home Office collects more data on stop and search than ever before. The data is published online, allowing local scrutiny groups, PCCs and others to hold forces to account and we discuss it with the relative NPCC leads in forces to understand why disparities occur, if they occur. HMICFRS inspects forces’ stop and search data annually, and extensive data is also published to increase trust and transparency. So, there are a number of things on which we test ourselves and are scrutinised to ensure that stop and search is not being used in an illegal and discriminatory way.

[Earl Attlee (Con)]

My Lords, my noble friend the Minister did not disappoint me, because she mentioned the phrase “operational independence” for the police. Would she be entirely content if a local police commander decided that he or she was not going to have their officers do stop and search unless they thought it was absolutely essential?

[Baroness Williams of Trafford]

It is part of that operational independence of the police that they know what is best for their area; therefore, it might be relevant for police forces in a certain area not to have much occasion for the use of Section 60 stop and search.

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[Lord Pannick (CB)]

My Lords, despite being a lawyer, it is a great pleasure to follow three such excellent speeches. I have added my name to this amendment, in part to emphasise what is obvious—that this is a matter of concern not just to women who breastfeed but to men, particularly men who are fathers, husbands and fathers-in-law, all of whom are affected by this subject.

When the Minister replies, I think he will express two concerns about these amendments, unless he is prepared to accept them, which I hope he will. He might say there is a concern that Amendment 131 is too broadly drafted. I do not understand such concern, because the drafting is very simple. It ensures there is a criminal offence only where the woman concerned does not consent and—this is vital—the defendant photographs or videos the breastfeeding for the purpose of obtaining sexual gratification, or to cause humiliation, distress or alarm.

That is a very limited mischief. It is properly drafted, since it adopts in its definition the ingredients of the offence of upskirting, which is already on the statute book, so it is a confined mischief. There is no question of capturing someone who innocently takes a photograph, and, in the background, there happens to be a woman who is breastfeeding. However, as we are in Committee, if the Minister thinks that the drafting can be improved, I, and the other signatories to this amendment, I am sure, would be very happy to see an improved version.

The other concern, which I know that the Minister will express, and which has already been addressed, is that the Law Commission is due to report on the law relating to intimate image abuse. It had a consultation which closed in May. The report is awaited. We certainly will not see it this year. The Committee may be interested to know that it is a consultation paper that covers 423 pages of material, a wide range of subject matter and complex issues. After the commission reports, sometime next year, there is no possibility of any legislation being brought forward for months, and that is optimistic. Who knows when the Government may reach a conclusion on any of these topics, particularly the specific narrow topic that we are discussing today? Who knows—the Minister does not—when there will next be a legislative opportunity to bring forward proposals such as those promoted by the noble Baroness, Lady Hayman?

It is time to address this because the case for a change in the law on this specific subject is simply overwhelming for all the reasons that the Committee has heard. There is no question of delay here because the conduct is every day causing great distress to the victims. We already have the model legislation in the upskirting provisions that Parliament has approved, which have been enacted and which are working very well.

In July, this Government announced their intention to take steps to protect women from violence and harassment. The amendments tabled by the noble Baroness, Lady Hayman, provide an opportunity for the Government, at no financial cost, to take a small but important practical step.

[Earl Attlee (Con)]

My Lords, I support this Amendment and agree with every word that noble Lords have said. My strong advice to my noble friend the Minister, bearing in mind that this is a policing Bill, is to come quietly. The alternative is to have another 45 minutes on Report, lose a Division and get into ping-pong. It is much easier to agree in due course.

[Baroness Jolly (LD)]

My Lords, I feel quite inadequate. I only have two sons, not six, and two were a handful. Clearly, I am a huge supporter of this amendment, and was completely unaware of somebody wanting to watch someone breastfeed. I am pleased that we are today trying to stop this or at least make it clear that this is beyond the pale.

--- Later in debate ---

[Lord Pannick (CB)]

It may be thought by the Committee that the first example that the Minister gave was somewhat esoteric and unlikely to occur in practice. The risk of such esoteric events occurring is more than outweighed by the actual mischief that this amendment seeks to address. In any event, the same objections—the noble and learned Lord, Lord Falconer, called them pettifogging; that is his word, but I understand why he said that—could well be raised in relation to upskirting, in that pictures could be taken in whose background there is some other unfortunate woman. Perhaps the Minister might wish to reconsider these matters. We would all be happy to sit round a table and agree a draft that meets these points.

[Earl Attlee (Con)]

My Lords, I have been in your Lordships’ House for nearly 30 years. I have seen plenty of examples where, eventually, the Government have given way on an issue and parliamentary draftsmen have been able to draft far more complex provisions than these.

Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is slightly more complex than one might have thought. I thank the noble Lord, Lord Beith, for laying out the nonsensical way in which at the moment we exclude all the other categories. I do recognise the value of what the Government are trying to achieve in Clause 45: it is important that we stop predators from abusing positions of trust to prey on children and vulnerable people.

I also note, as no doubt the Minister will point us to, that this clause includes a Henry VIII power to add to or remove positions of power from the specified list. I normally loathe Henry VIII powers—I think they are extremely dangerous—but obviously I am weakening on this one.

It is also important not to cast the net of this offence too broadly or to define it too narrowly. I find it much more complex than when I first signed the amendment. There must be a level playing field, and a sports instructor should not be held to a higher standard or treated as a greater offender than, say, a dance tutor, because abuse of children is abuse and that is what we are trying to deal with here. I hope the Minister will work with your Lordships’ House to put together an amendment with which we are all happy.

[Earl Attlee (Con)]

My Lords, my task in this debate is easy: all I have to do is to support the noble Lord, Lord Beith, and say that I have rarely heard an amendment moved more comprehensively than he just did.

[Lord Paddick (LD)]

My Lords, we strongly support my noble friend Lord Beith. He has clearly explained his amendment: persons other than those mentioned in the Bill are in positions of trust. Although there is no evidence of widespread concern about instructors in dance, drama or music abusing their positions of trust, there are examples and fairly recent high-profile cases. My noble friend explains that either we should leave it to the courts to decide whether someone is in a position of trust or a more comprehensive list is required that is not limited, as my noble friend Lady Brinton said, to the examples in the amendments.

I agree with the noble Baroness, Lady Jones of Moulsecoomb, to some extent, although one could imagine that children are more vulnerable in certain scenarios and one-to-one situations than in others. But we support the amendments in the name of my noble friend Lord Beith.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

It is very helpful of the Minister to tell us what the law is—accurately, I am sure. I do not think it is well known that if you damage life-saving equipment, you might be falling foul of Section 1(2) of the Criminal Damage Act—that is, you might be recklessly endangering life—because generally you will not intend to do that. That is why it is important to have a provision that makes it clear in the Bill, because most people do not have the benefit of the noble Lord, Lord Wolfson, to tell them what the law is.

[Earl Attlee (Con)]

It seems pretty obvious that if you get hauled before the courts for damaging life-saving equipment, you are going to be in deep trouble. What you do not know is what the penalties are.

[Lord Wolfson of Tredegar (Con)]

We seem to be reaching a measure of agreement. I still say, with respect, that because we have that on the statute book at the moment, it is not appropriate to re-legislate in another place. I will take away the points put to me by the noble and learned Lord about more education and sign-posting, and clarifying and explaining to people what the law is. If people do not know what the law is in the Criminal Damage Act 1971, it is unlikely that they are going to be any more familiar with the Police, Crime, Sentencing and Courts Act 2021, as I hope it will be. If we have it in the law, however—and we do—with the reckless addition of a maximum sentence of life imprisonment, I suggest that that ought to be sufficient. On that basis, I invite the noble Lord not to proceed with the amendments. I hope that I have already responded to the amendment of the noble Lord, Lord Paddick.

[Earl Attlee (Con)]

My Lords, as usual, my noble friend has been very helpful, but what he has not convinced me about is why there is an increased deterrence value in having a maximum sentence of not, say, two years but one of seven years. I do not see why going to seven years is going to increase the deterrence value of the new offence.

[Lord Wolfson of Tredegar (Con)]

I am sorry, is my noble friend now back on the memorials point?

[Earl Attlee (Con)]

Yes.

[Lord Wolfson of Tredegar (Con)]

The short answer to that is that I did not make my argument on the basis of deterrence. Sentencing encompasses a number of factors: there is deterrence; there is the actual punishment for the offence; there is marking society’s disapproval at what was done. I hope that I made my argument very clearly on the first two. I was not suggesting that people would necessarily be deterred; I hope that they will be, but that is not the main basis of my argument.

Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

[Earl Attlee (Con)]

My Lords, I strongly support these amendments. I too have little confidence in the IOPC and the resources that are available to it. It was very interesting to hear what the noble Lord, Lord Hogan-Howe, said about it. We must shed some light on the timelines for these investigations, both for the police officers and for the alleged victim.

I have been within and have commanded a disciplined organisation, and I was always acutely aware of the need to complete investigations as fast as possible when something had gone wrong. If this amendment does not find favour and the noble Lord needs to return on Report, I can make a very much longer speech then.

[Lord Coaker (Lab)]

My Lords, I am very grateful for the opportunity to speak to Amendment 8, tabled by the noble Lord, Lord Paddick, and of which the noble Baroness, Lady Jones, is a co-signatory. It is an important amendment. I was particularly moved by the comments made by the noble Baroness, reminding us that of course it is from a police officer’s point of view but that this is also about a complainant’s point of view. It is from both sides that this debate has taken place.

Sometimes you look at an amendment and wonder whether it is as important as some others. Listening to the moving opening remarks of the noble Lord, Lord Paddick, and those of the noble Baroness, Lady Jones, and others, I have been struck that this is a crucial amendment and a crucial discussion which is of huge significance to the police, communities and our country, particularly in light of issues that have arisen over the last few months. However, investigations that are delayed and drag on without resolution are completely unacceptable for the complainant and the officer in question.

I was completely unaware and absolutely astonished to hear from the noble Lord, Lord Hogan-Howe, from his experience as a former Commissioner of the Metropolitan Police, that officers under investigation have been waiting for 10 years. Whatever the rights and wrongs of what happened and whether they were guilty or innocent, that cannot be right. This has got to be looked at by the Minister who now has responsibility for this, wherever you come from in the debate. I am sorry if other noble Lords knew this, and that I was the only person here who was unaware of it. I knew that there were delays, but frankly, that is astonishing. We have just had a significant and important debate on protecting the mental health of our officers. One can only imagine the mental health implications for people under investigation but also, as the noble Baroness, Lady Jones, reminded us, for people who have made the complaints. It does not serve justice for anybody.

There is some suggestion about delays in driving cases, but if she knows, can the Minister tell the Committee whether there is a particular delay in one area or a general problem across investigations? The noble Lord, Lord Hogan-Howe, mentioned firearms, and the noble Lord, Lord Paddick, mentioned some other examples, but is there a particular problem which emerges when a complaint is made in a particular area? There have been many references to certain offences not being taken seriously even when complaints were made, but it would be interesting for the Minister to come back to us on that.

I think that, at its heart, this amendment is saying that if we do not get this right, public confidence is undermined and eroded, and it is of no benefit to any of us not to be confident in the system. We must believe that the investigations which take place are fair, operate in a timely manner and are done with that integrity which people can understand and believe. We all accept that. Nobody here would disagree that this is the process which must happen and should be in place. However, as we have heard, that is not happening. Therefore, the amendment rightly asks us whether the answer is to set a time limit, to lay out a process that is better and more effective. The key question for the Minister is: what plans are there to review and update the disciplinary process, to restore public confidence and to reassure all of us that, at the end of the day, not only those who are complained against can feel confident but those who are making the complaint? That is the resolution that we all want from this important amendment.

--- Later in debate ---

Moved by

[Earl Attlee]

9: Clause 2, page 3, line 46, at end insert—
“(3) After section 2 of the Assaults on Emergency Workers (Offences) Act 2018 insert—2A Potting (1) A person commits an offence of potting if the person—(a) maliciously causes an emergency worker to unwillingly or unwittingly come into direct contact with any substance containing urine, excrement or ejaculate,(b) is in custody and causes or permits their own urine or excrement to be intercepted without lawful reason or excuse, or (c) is in custody and causes or permits their own ejaculate to be intercepted without lawful reason or excuse.(2) For the purposes of subsection (1)(a), a substance that looks and smells as if it contains urine or excrement is to be taken to contain such substances.(3) For the purposes of subsection (1)(b), only in exceptional circumstances may the court accept a defence of “lawful reason or excuse” in the absence of evidence of a prior direction by a clinically qualified person.(4) In each and every case where the alleged offence takes place in a custodial environment and the Crown Prosecution Service decide not to prosecute on the grounds of not being in the public interest, the Lord Chancellor must be notified within 28 days of any such decision being made.(5) The Secretary of State must ensure that sufficient suitable kits for collecting evidence samples are available within the Prison Service.(6) A person guilty of an offence to which this section applies is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months;(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.””

[Earl Attlee (Con)]

My Lords, I beg to move Amendment 9 standing in my name and that of the noble Lord, Lord Ponsonby of Shulbrede.

From time to time, it falls on this House and its committees to debate extremely distasteful matters. This will be one of those occasions. However, there are some euphemisms that we can utilise. We can use the term “relevant substance” to mean any substance mentioned in the proposed new Section 2A(1) of the 2018 Act. If we need to be more specific, we can refer to subsections (1)(b) and (1)(c) in the proposed new section. The type of assault in question is generally termed “potting”.

Let us suppose a dedicated and efficient junior official of Her Majesty’s Revenue and Customs is walking down the high street and he or she is assaulted by an aggrieved taxpayer. Suppose the assault is achieved by inverting a bucket containing the relevant substance on his or her head, or alternatively by using what I would call the “custard pie technique”. The Committee will appreciate that the distress caused to the junior official would be off the scale. The victim would be comforted, if that was possible, by the knowledge that the police would regard it as a very serious assault. There is no doubt that the police would go to great lengths to secure the evidence and that the CPS would invariably prosecute if the police produced the necessary evidence. If such an assault occurred, the Committee would expect to see extensive national media coverage, possibly with public statements made by the Home Secretary or the relevant chief constable.

I have to tell the Committee that this type of assault is not unusual in the prison service today, but a thorough investigation and prosecution does not invariably follow. In the event of such an assault, the Committee will completely understand the overriding desire of the prison officer or other victim to immediately get under a shower and wash off every drop of the relevant substance. Unfortunately, this may interfere with the evidence trail.

There are other difficulties associated with bringing the perpetrators of such an assault to justice. First, the police have numerous and conflicting priorities; I am afraid that they are often unable or unwilling to attach much priority to an assault of this type when the victim is a prison officer or governor, and the assault occurs within the secure estate. A further difficulty is that the CPS is apparently not very energetic in prosecuting these cases. Part of the problem may be the evidence trail that I have already referred to.

I should also point out to the Committee that there is a complex criminal infrastructure in most prisons. It can be that the prisoner carrying out the assault has no grievance himself but makes the assault on behalf of others. Often, this is because the prisoner who is “invited” to do the deed has no more time that can be added to his time in custody without being charged with a new offence. He could also be put under considerable pressure by other criminals to commit the offence. The Minister will doubtless correctly tell us that there are existing relevant offences, but without a specific offence, prosecution is less likely.

Furthermore, the existing offences do not catch preparatory acts; that is to say, intercepting the relevant substance. Of course, the person who commits this offence of interception could easily and certainly be identified. My amendment proposes a new offence of potting. It makes it clear that, if the substance looks or smells like the relevant substance, it is that substance. It makes it an offence within the custodial environment for anyone to intercept their own relevant substance, under new subsection (1)(b), with a tightly defined medical exemption. The lawful reason or excuse exemption is less constrained for relevant substances falling under new subsection (1)(c) for obvious and understandable reasons. Proposed new subsection 4 requires the CPS to notify the Lord Chancellor if it is decided not to prosecute on public interest grounds. I would like to make it clear to the Committee that the intention is to make the probability of prosecution and conviction very high, in order to completely deter such assaults.

We ask prison officers, governors and others to look after some of the most mad, bad and sad members of our society. Some, as we know, are just minor offenders, while others are particularly evil, devious and dangerous. We have a retention problem within the prison service; allowing this type of assault to go unpunished must surely have a negative effect on morale and retention. We owe it to those charged with such onerous duties to protect them so far as is possible from assaults of this nature—and indeed from any other. We can discharge our duty by ensuring that there is a high probability of prosecution and conviction for these offences. I beg to move.

[The Lord Bishop of Durham]

My Lords, I will speak to Amendment 11, in the name of my right reverend friend the Bishop of Gloucester, with her permission, as she is sadly unable to be here today. I declare her interest as Anglican bishop of prisons in England and Wales.

This amendment seeks to improve Section 3 of the Assaults on Emergency Workers (Offences) Act 2018 by expanding the definition of “emergency worker” to include all staff working in prisons. All those who work in prisons play a valuable role. However, currently, only officers and some healthcare staff are covered by this legislation and, as such, the risk for others working in prisons is increased, because prisoners are well aware of the more severe consequences of assaulting an officer compared with others working in prisons. Someone described this as effectively painting a target on their backs. This is an unintended consequence of the current legislation, which is unfair to many prison workers, undermines their safety and can be easily dealt with through this amendment.

The work of chaplains, educators and others who work in prisons is essential. They play a crucial role in the well-being and support of prisoners, in the work that underpins successful rehabilitation of offenders, and in maintaining a well-run and ordered prison. Prison chaplains, teachers, instructors and healthcare workers are vital vocations within the justice system. They need support and security to perform their roles well.

This amendment is supported by the Joint Unions in Prisons Alliance, and it has shared disturbing anecdotes from prison workers, as yet unsupported in law as emergency workers. One worker reported:

“Cutbacks in prison officers mean we are at greater risk than ever. I have been working in this environment for 10 years and have never known it so bad.”


Another noted:

“The prison is unsafe despite receiving an urgent notification last year—little has changed. We are running at significantly reduced numbers but there is no order or discipline in the jail. Staff assaults are an almost daily occurrence. One of my nursing staff was severely assaulted in the clinic room and I have a high level of staff receiving counselling due to fears around safety.”


A third said:

“I am a lone instructional officer in a textiles cutting and manufacturing workshop within an immigration removal centre. As a civilian, I don’t receive Control & Restraint training, carry a baton or wear a body-worn camera.”


Prison chaplains share in the front-line care of prisoners, providing pastoral and spiritual comfort. It is shocking that they might be seen as an easy target for physical assault. This is an account from a prison chaplain:

“I was leading some funeral prayers for an 18 year old. He was poorly and had had a hospital place to go to until a more needy child in the community got it. His Aunt Died and he requested funeral prayers. He was edgy as we moved to Chapel and I spent some time settling him before I led him through some prayers. As I was reading Ps23, I saw movement to the side. I remember asking myself ‘What happens if I am assaulted here?’. Momentarily later I was hit side on causing bruising to my face and bruising. I had some concern as I am currently on blood thinners. Staff back up was immediate, I had photographs taken and was taken out to hospital for a check-up. I then went home for the afternoon and returned into work the following day, I wanted to ‘get back on my bike and start pedalling!’. As a Priest Chaplain we speak about ministry through adversary, I can now stand alongside my uniform colleagues who are at risk every day from assault and understand better how to support them, because I have been there.”


Another said:

“As a Christian Chaplain I was assisting a visiting Imam to ensure that Friday Prayers was able to take place. Just as prayers were about to start I was asked by staff to go downstairs and speak to a prisoner who had not brought his ID card and was not therefore being allowed in. My intention was to ask his name and if his name had not already been ticked off on the list, to allow him in. When I arrived at the door the prisoner was extremely angry. He said he did not want to speak to me but would only speak to the Imam. I explained that it was a visiting Imam who would not be able to help him and that he was busy as prayers were about to start. He said that if he was not allowed in he would go back to the wing and ‘start smashing up staff’. I looked around to ascertain the whereabouts of staff and as I turned my head to the right I felt a blow to the left hand side of my head, knocking off my glasses and causing a cut to the side of my nose. He was immediately restrained by staff and taken to the segregation unit. I was attended to by healthcare staff. I remained on duty as the visiting Imam was a friend and I wanted to ensure that all went smoothly and that he was able to get off the premises after prayers.”


This chaplain received excellent care from colleagues working in the prison but should be supported through the law, as an emergency worker.

I would add that, in the last 12 months, I have spoken to two prison chaplains in my own area; one was assaulted and the other explained the fear they now face because of the amount of lone working they find themselves doing and how often there is no one nearby if something were to occur. It cannot be right that some front-line prison workers are protected while others are not.

In conclusion, prisons that are dangerous for staff are dangerous for prisoners too and disrupt the essential task of rehabilitation. Will the Minister give assurance that the Government are committed to making prisons safer working environments for all staff?

[Lord Paddick (LD)]

My Lords, I have Amendment 10 in this group. According to the Times newspaper, in an article dated 10 March this year, Chris Philp MP, the then Parliamentary Under-Secretary of State at the Home Office and Ministry of Justice responsible, according to the article, for sentencing, said that

“detailed research had found that the likelihood of being caught and punished was much more important in discouraging people from committing crime than length of jail sentences.”

Answering a Parliamentary Question about the deterrent effect of longer sentences, he said, again according to the Times:

“The evidence is mixed, although harsher sentencing tends to be associated with limited or no general deterrent effect. Increases in the certainty of apprehension and punishment have consistently been found to have a deterrent effect.”


I subsequently discovered that this was the Answer to a Written Question on 19 February from the Conservative Member for Rother Valley about pet theft—of which more on another day. The Bill certainly is the gift that keeps on giving.

Noble Lords around the Committee will be aware that we on these Benches have consistently said that longer prison sentences do not deter criminals and now, according to the Government, harsher sentences have limited or no deterrent effect. So why do we have Clause 2 in the Bill? Noble Lords may be surprised that, as a former police officer, I am not supportive of this measure. Something needs to be done about assaults on emergency workers, but an increase in the maximum sentence is not what is needed. What is needed is a change in attitude among the general public, in society and in the courts towards assaults on emergency workers in general and on police officers in particular. It appears to me to have become accepted by many that being assaulted is part of the job of a police officer or an emergency worker. But no one should be expected to tolerate abuse or assault because of the work they do, whether they are a Member of Parliament or an emergency worker.

The type of assault covered by this clause is common assault. Anything that causes a significant injury, even if it is not permanent, such as a bruise, can and should result in a charge under Section 47 of the Offences Against the Person Act 1861, for which the maximum term of imprisonment is already five years. We are talking about relatively minor physical harm. Can the Minister tell the Committee how many cases of assault on an emergency worker to date have attracted the current maximum penalty of 12 months in prison—or a sentence of imprisonment at all?

The reason for my amendment, in effect for the Sentencing Council to review its guidance for the existing offence where the existing maximum penalty is 12 months’ imprisonment, is to ensure that the courts and the Crown Prosecution Service reflect the seriousness of this offence in their decision-making, rather than what we see week after week reported on social media, where assaults on emergency workers in general and police officers in particular are treated by the CPS and the courts as part and parcel of the job. That sends a message to criminals and the general public that you can assault emergency workers with impunity, because in court you will be just be given a slap on the wrist—if it even gets that far. What is the point of increasing the maximum penalty for an offence to two years when the Government themselves acknowledge that harsher sentences have little or no deterrent effect and the courts, which can currently send someone to prison for up to 12 months, rarely if ever do so?

The Government may say that in some cases severe penalties can have a deterrent effect—but an increase from one year to two years for an offence often committed in the heat of the moment during the course of a confrontation between a police officer and a member of the public is unlikely to be one of them. Far better that the Government mount a publicity campaign stating that it is completely unacceptable to attack emergency workers who put their lives on the line every day to protect and serve the public, than that they make a minor adjustment to the maximum penalty that is likely to go unnoticed by those it is targeted at, either as a deterrent or in court following conviction, unless there is a significant change in the attitude of judges, prompted by a change in the sentencing guidelines.

On Amendment 11, proposed by the right reverend Prelate the Bishop of Gloucester, clearly, prison officers are as vital a uniformed force as police, fire and rescue services, the ambulance service and the coastguard, and they are afforded similar protection. I quite understand how others working in prisons feel that they are more vulnerable and, as the right reverend Prelate said, they feel they have a target on their back because they are excluded. He gave the appalling example of an assault on a prison chaplain that resulted in bruising to the chaplain. But, again, I say that that offence could have been prosecuted under Section 47, where there is an even greater penalty available than for an assault on an emergency worker. So we are not supportive of the increase.

On Amendment 9, in the name of the noble Earl, Lord Attlee, of course, if such substances are actually thrown at a prison officer or other emergency worker, it would amount to assault and therefore it would be covered by existing legislation around assaults on emergency workers, with a similar penalty to the one the noble Earl is proposing in his amendment. So we feel that there needs to be a change in attitude towards the apparent acceptability of assaults on emergency workers, rather than simply a cosmetic increase in the maximum penalty.

[Earl Attlee (Con)]

My Lords, I think the noble Lord and I are in agreement that the problem is that we are not prosecuting these offences, rather than the outcome in the courts. Because, for the prisoners, it may be that even another three-month penalty for my new offence would be enough to deter them—or, using the existing penalties, as the noble Lord said, it is the probability of being prosecuted that matters.

[Lord Bach (Lab)]

My Lords, of course we want to change attitudes and that is what we must try to do, however long it takes us, but I have to say, from my experience over five years as a police and crime commissioner—I am sorry to keep on about this—this wrong seems to have increased on a fairly enormous scale. That is only anecdotal, but the truth is that many more of those who are about to be arrested seem to think that it is okay to have a go at the police in order not to get arrested. That seems to me to be very unfortunate, and it is going to take a long time before it changes. It puts the police, and obviously other emergency workers, in a nearly impossible position sometimes—and when I talk about the police, I am really referring to other emergency workers as well.

Like the noble Lord, Lord Paddick, I do not want to see higher sentences for the sake of higher sentences, and I do think that their effect is often very limited, but I have to say—it seems odd, coming from these Benches, I suppose—that I have a certain sympathy with the Government here, because it seems to me that the position has to be dealt with immediately in some way, and one of the purposes of raising the maximum sentence available is to try, in the best possible way, to convince the courts that this is a more serious offence than sometimes they think it is. It is not always minor, I am afraid—sometimes it is undercharged—but it is a really serious problem that every emergency worker, and in particular every police officer, faces every time he or she makes an arrest, and I do not blame the Government for wanting to do something about it.

I am not saying it will be very successful; I think it is a much wider societal problem. But I do think it is something the Government are entitled to at least think about in this way. I do not say that with any happiness at all, but to claim that it is not a real problem is just untrue: it is a real, everyday problem.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I think I made it clear earlier that I was making two points in response to this amendment. The point that we are focused on at the moment is whether we could have more—and I say this respectfully—felicitous drafting than the drafting of the amendment that we currently have. I have accepted in principle that one could, and I made that clear in my previous answer and my answer to the right reverend Prelate. However, I do not want us to lose sight of my first response, on the point of principle: we have a definition in the 2018 Act of “emergency worker”, and that was regarded in 2018 as suitable and fit for purpose. It treated that definition as a separate status and a distinct group, and the Government’s position is that definition was good in 2018 and remains so now.

[Earl Attlee (Con)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. On Amendment 11 from the right reverend Prelate, I am aware of the problem that he describes, but I did not make my new offence cover other Prison Service staff. I deliberately excluded probation officers just for reasons of simplicity, but if I managed to make my potting amendment find favour with the House, I would have to decide who was to be protected by it.

I am slightly disappointed by my noble friend’s response, because I thought that I was offering him the best thing since sliced bread, but he turned me down. The problem for the Minister running the Prison Service is that he cannot direct the police force to investigate these issues and, as he carefully explained to the Committee, he cannot direct the Crown Prosecution Service to pay greater attention to these offences either. My noble friend has no tools to protect prison officers—so I suspect that the Prison Officers’ Association will be a little bit disappointed with his approach.

I think we identified the underlying issue, which is the probability of being prosecuted for these sorts of these offences, and we need to have another look at that. I shall, of course, withdraw my amendment, subject to the usual caveats and discussions with the Opposition Front Bench.

Amendment 9 withdrawn.

European Union Referendum Bill

Earl Attlee Excerpts

Wednesday 28th October 2015 Lords Chamber

Finally, I think it was the noble Lord, Lord Forsyth, who raised the idea that 16 and 17 year-olds cannot buy a pint of beer in the pub, and mentioned some other things for which people have to wait until they are 18. But at the age of 16 people can work, they can pay taxes, they can join the Armed Forces, and they can marry. Those are far more responsible things than just drinking a pint of beer. There is every reason why we should make this change—and I hope we shall do it enthusiastically on all sides of the House.

[Earl Attlee (Con)]

My Lords, the noble Lord, in his interesting speech, talked about youngsters being able to join the Armed Forces. Does he recall that they cannot go to war until they are 18? Will he advocate lowering that age limit?

[Lord Foulkes of Cumnock]

No, I do not want to change that. People can join as boy soldiers, and they can prepare to defend their country. If they are ready to prepare to defend their country, they should be able to vote in the referendum.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, I had not intended to intervene at this stage, but I hear people saying that we should not make piecemeal changes. The Committee should read Clause 2, to which we are debating an amendment, because it makes piecemeal changes. There are several lines which refer to allowing Peers to vote in this referendum—800 of us. A number of further lines then spend a lot of time on Gibraltar— all 22,000 of them—and then the Irish and Commonwealth citizens in Gibraltar. I have been unable to discover how many there are of those, but I think there are probably around 100. These are piecemeal changes.

The problem was raised by a number of people at Second Reading that this referendum will be an exceptional vote. There is therefore a case for looking exceptionally at who should vote, whether it is in this set of amendments or in the following three groups, which we will be discussing later on tonight. The question is really: for this very important vote, which will affect the future of this country for the next 40 years, what are the appropriate changes that we wish to make in the electoral system? Clause 2 as it stands offers a number of changes. The question is what other changes we might wish to make for this vote.

[Earl Attlee]

My Lords, I hate to say this, but noble Lords opposite have challenged my thinking on the Bill, as a general issue, but I agree that piecemeal reform in this area is not desirable. I share the noble Earl’s anxieties. Noble Lords, particularly the Liberal Democrats, consistently argue that someone under 18 is a child, but when it comes to an issue of this magnitude, they suddenly then become an adult.

[Lord Hamilton of Epsom]

My Lords, I do not intend to delay the Committee for very long, but on many of the amendments that came before we have been led by the Electoral Commission. I remind my noble friend the Minister that the Electoral Commission has serious reservations about these amendments for logistical reasons. Perhaps I may read out its final paragraph:

“While the date of the referendum remains unknown, it will be difficult for EROs, the Electoral Commission and campaigners to plan activities required to target and encourage any newly enfranchised electors to register to vote”.

It has made quite a serious comment and I would very much welcome my noble friend’s views on it.

--- Later in debate ---

[Lord Willoughby de Broke]

I am so sorry if I am wrong.

[Earl Attlee]

My Lords—

[Lord Willoughby de Broke]

Perhaps I may just finish my speech. The noble Lord, Lord Liddle, said that foreign citizens come here because we are in the EU. That is not the case at all. A lot of them, including the French, come here precisely because it is a different country. They do not come here because we are in the EU. Actually, in one sense they are leaving the EU. They are leaving their high-tax, lower-employment and failing economy. That is why they come here and that is not going to change. However, that does not alter the fact that it is completely wrong to enfranchise foreign nationals to vote in a British election. It has never happened before. I was in France for the 2005 constitutional election, which the noble Lord, Lord Kerr, will remember. I would have loved to have voted with the French to vote down the constitution but I had to cheer from the side-lines when they did. I was not allowed to vote. I see no reason whatever for agreeing to this amendment. People can live here and, if they want to vote, they can take British nationality.

[Earl Attlee]

My Lords, I remind the Committee that the Companion advises against the use of the word “you”.

[Lord Liddle]

I am sure that the noble Earl, Lord Attlee, is correct on these points and therefore I shall follow his advice as best I can.

With regard to all these amendments, if we were talking about the situation in the 1970s when we were joining the European Union, I would have said unequivocally, “That is a decision for British citizens”. But we made the decision to join a Community—and it is a Community—in which many British citizens have gone to live in other countries and many European citizens have come to live here. People have moved because they have felt that they will be treated on a very fair and equal basis as members of the European Union.

Now, the structural change that our membership of the EU has brought about means that this is not like any other election. It is not a national election or a national referendum on a matter specific to our country; it is about our future in the European Union and it affects everyone—British citizens living in the European Union and European citizens living here.

I accept that the noble Lord, Lord Hannay, has a point about a residency requirement. However, I know many people who have married people from EU member states who are not British citizens and the idea that their future is going to be decided without them having a say over it is a monstrous injustice.

Social Action, Responsibility and Heroism Bill

Earl Attlee Excerpts

Tuesday 18th November 2014 Lords Chamber

[Lord Hunt of Wirral]

It is partly covered, but I think this makes it much clearer.

[Earl Attlee (Con)]

My Lords, it is well known that I generally support this Bill but I have to confess that I do not have the foggiest clue what Clause 3 is for. It would be much better to have a social action and heroism Bill. If the noble Lord wishes to return to it at a later stage, he will have to amend Clause 5 and the Long Title. A clearer, simpler Bill would send a clearer, simpler message.

[Lord Faulks]

My noble friend Lord Attlee would like to make a short Bill shorter. I submit that this particular clause seeks, as does the Bill as a whole, to reassure ordinary, hard-working people that, when something goes wrong and they are sued, the courts will take into account that they have adopted, during the course of an activity,

“a generally responsible approach towards protecting the safety or other interests of others”.

Most people would understand that expression.

At Second Reading, we heard from my noble friend Lord Cotter how court proceedings can affect the owners of small businesses in particular. Even if they have taken reasonable steps to protect people’s safety, they might be worried about expending the time or resources defending themselves in court and some might prefer to settle claims before they reach that stage. Others will defend themselves in court but we heard from my noble friend Lady Hodgson of Abinger about the psychological effect that this can have on a defendant. She pointed out that, even if the courts reached the right conclusion, the defendant might have gone through the most stressful and distressing time to get there, possibly putting relationships at work and at home under strain.

We hope that Clause 3 will give the owners of small businesses and employers greater confidence to stand up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side. One important theme running through this Bill is that we want to stop people suing at all in cases which do not have any merit, so that a judge never has to decide any case either by referring to cases in negligence nor by virtue of this Bill should it become law.

Clause 3 is not just about protecting small businesses. In previous debates we discussed examples provided by members of the Cheshire Fire and Rescue Service who said that they had been sued by passers-by who tripped over their hoses when they were attending the scene of a blaze. During oral evidence sessions in the other place, Justin Davis Smith, Executive Director of Volunteering and Development at the National Council for Voluntary Organisations, spoke about voluntary organisations which have considered closing or stopping some of their most valuable operations because of worries about being sued. He provided an example of one charity which helped to take elderly people to hospital in the absence of any accessible bus routes. The charity was being sued after a patient slipped and broke her leg getting into a volunteer’s car and this had caused it to consider whether such activities could be continued.

The Government believe that it is right, in cases such as this, to require the courts to take into account the general approach of the defendant to safety during the course of the activity in question. This will reassure organisations that, if something goes wrong in the course of that activity, in spite of their efforts to keep people safe, the courts will always consider the context of their actions. However, the clause will not stop organisations being found negligent, nor, proportionate and just decisions being reached if all the circumstances of the case warrant it.

--- Later in debate ---

Moved by

[Earl Attlee]

8: Clause 4, page 1, line 15, at beginning insert “Subject to section (Interpretation),”

[Earl Attlee]

My Lords, I shall also speak to my Amendments 12 and 14. I have tabled these amendments on the basis that we will have to send back to another place something that actually works.

At Second Reading many noble Lords observed that, for a person to benefit from the heroism provision in Clause 4, they must act without regard to the person’s own safety or other interests. That would mean that if I intervened in an emergency, and I undertook a proper dynamic risk assessment and eliminated all avoidable and non-necessary risk to myself—and in doing so probably to anyone else—I would get no protection from the Bill. On the other hand, an imprudent rescuer would benefit from Clause 4, assuming for the moment that as drafted it changes the law.

Amendment 12 is my substantive amendment, which removes the offending words and changes the drafting to read: “to assist an individual in danger and without acting perversely”. The Committee will be aware that the noble Lord, Lord Aberdare, has an amendment that has a similar effect to mine, and I anticipate that he will go into greater detail about the problems with the need for the rescuer to act without regard to his own safety.

Amendment 14 defines what is meant by “acting perversely”. I fully accept that the courts might not need the benefit of this amendment and, if it or something similar does not find favour with the Committee, that will not be a surprise to me. I understand that my words, in the circumstances, would mean that the level of skill, knowledge, experience and training enjoyed by the rescuer would be taken into consideration by the courts—and in any case it already is.

I hope that by this stage of the Committee we will understand whether the Bill changes the law, but I myself am still not clear. I am sure that the noble Lord, Lord Pannick, will tell the Committee that my amendment would change the law and the effect of the Bill. If it does, I am sure that it can do so only very slightly. As the Committee knows perfectly well, and as I have always understood, the courts have never made an unhelpful judgment in that area of law. However, as I indicated at Second Reading, the fear of legal action or, as the Minister put it, an imperfect understanding of the law causes the mischief.

It would be very helpful if some noble and learned Lord or the Minister could describe to the Committee a situation in which the effect of my amendment would be to deny someone compensation for negligence when they would otherwise have secured it. I suspect that the Minister himself is struggling to determine whether the Bill is supposed to change the law or not. By now the Committee seems to have the view that the Bill makes no significant difference to the law apart from, possibly, Clause 3. However, if a first aid instructor could have the future SARAH Act confined to one PowerPoint slide, that could make a practical and beneficial difference. That is because, as the Minister pointed out during our debate on Amendment 2, the Bill has deliberately been designed to be comprehensible.

I suggest that the Committee cannot tolerate a provision in the Bill where an imprudent person enjoys greater protection than a person who has taken steps to avoid unnecessary risks. I am relaxed if the amendment in the name of the noble Lord, Lord Aberdare, finds greater favour with the Committee than my amendment, although his amendment may have the difficulty that it does not change the law at all. I would love to know if we were supposed to be changing the law or not.

Clause 4 is the most useful clause. I certainly have no entrenched position, but by Report we will need to have worked out what we can do to make this clause and the Bill do what they say on the tin. I beg to move.

[Lord Pannick]

My Lords, Amendment 10 is in my name and in the name of the noble Lord, Lord Beecham. It would remove the final words of Clause 4:

“and without regard to the person’s own safety or other interests”.

The inclusion of those words frustrates the purpose of Clause 4 for the reasons already given by the noble Earl, Lord Attlee. Those final words suggest that if I am thinking of acting heroically by jumping in the lake to save the drowning victim, Clause 4 will not protect me if I have regard to my own safety or other interests, perhaps by taking off my valuable watch before I jump in or, if we are to follow the Government’s reasoning as regards Clause 4, by consulting my solicitor. Surely the hero deserves protection whether he or she jumps in “without regard to” their own safety or with regard to their own safety. What matters is that they jump in to save the victim. Clause 4, as drafted, protects the instinctive hero but not the thoughtful hero, and that distinction is entirely unjustified.

Amendment 10, which again is designed to be constructive, would remove that arbitrary distinction from Clause 4. However, I cannot agree with the noble Earl, Lord Attlee, that the law of negligence in this area should be replaced by a test of perversity, which is a test far more favourable to the defendant. He asked for views from Members of the Committee as to whether his amendment would change the law; it undoubtedly would. I anticipate that we will take different views on the merits of that change, but to introduce a test of perversity would be a substantial change.

[Earl Attlee]

My Lords, would the noble Lord be able to illustrate to the Committee how that difference would work—a case where someone would be protected, and someone else would not? That would be very helpful to the Committee.

[Lord Pannick]

At the moment the court assesses whether in all the circumstances the defendant has acted with reasonable care, and the court will take account, as it will under the Bill, of whether in all the circumstances, including that of heroism, the defendant has acted reasonably. However, that is a very different test from a test of perversity. It will not help the Committee to try to identify particular factual circumstances, but I can tell the noble Earl that there is a very real difference between a test of reasonable care and a test of whether the defendant has acted perversely—in other words, has taken leave of his or her senses.

I have also indicated my objection to Clause 4 standing part of the Bill; that is part of this group of amendments. The objections to Clause 2 standing part of the Bill, which we debated earlier this afternoon, are equally applicable to Clause 4, and I will certainly not repeat all those points. However, there is an additional, specific reason why Clause 4 should not stand part of the Bill. The simple reason is that it adds absolutely nothing to Clause 2. I cannot envisage any case in which a person is acting heroically for the purposes of Clause 4 which is not also a case where that person is protected by Clause 2 as currently drafted. If you act heroically for the purposes of Clause 4 you act,

“for the benefit of society or any of its members”,

for the purposes of Clause 2. Does the Minister agree with that analysis and, if not, can he please give the Committee some explanation of the sort of circumstances that potentially come within Clause 4 that would nevertheless be outside Clause 2?

--- Later in debate ---

[Earl Attlee]

My Lords, I am grateful to all noble Lords who have contributed to this debate, and in particular the noble Lord, Lord Pannick, who of course did a far better job than I of explaining the difficulties with the last few words of Clause 4. I accept that using my perversity test was a much higher barrier for a claimant to climb, but it was designed to be. I am extremely grateful for the support of the noble Lord, Lord Aberdare, and the briefings from St John Ambulance and the Red Cross. However, I was a bit disappointed that neither the noble Lord, Lord Pannick, nor my noble friend the Minister were able to illustrate how my amendment would change the law. We were just told by the noble Lord, Lord Pannick, that the courts would take it all into account.

I accept the guidance of the Minister on my amendment, but I am extremely grateful, as I am sure the rest of the Committee is, for his positive response to the principles behind Amendment 10, as proposed by the noble Lord, Lord Pannick. Therefore, in the mean time and subject to the usual caveats, I beg leave to withdraw my amendment.

Amendment 8 withdrawn.

Social Action, Responsibility and Heroism Bill

Earl Attlee Excerpts

Tuesday 4th November 2014 Lords Chamber

[Earl Attlee (Con)]

My Lords, I am grateful to my noble friend the Minister for his explanation of this Bill, which I support. Before saying anything substantive, I would like to state how much I value our system of justice and the rule of law—JROL—which is the envy of the world. We know perfectly well that countries such as Russia will be in severe difficulties as long as they persist in loving a strong leader with a weak and corrupt JROL. But you can have too much of a good thing. We have a problem with the compensation culture in this country, and the Government have already taken some steps to deal with it. The problem is that many cases never get to court. Your Lordships have been talking about how the courts would deal with a case, but very often the claimant just gets paid out, because it is easier, and the plaintiff’s organisation decides to cease a commendable activity.

We are also getting into a situation where people are fearful of doing something wrong in an emergency, and then having to deal with litigation. Just for now, I will define an emergency as a situation where action has to be taken immediately in order to prevent the situation from deteriorating further. It is often much easier to do nothing, and frequently people are being incorrectly advised to do nothing. This is despite the fact that there are very few, if any, successful negligence actions in respect of emergency assistance, as your Lordships well know.

Only this morning my taxi driver explained to me that, on his statutory training course, he was advised that he should use his first aid kit only on himself, and not on a member of the general public or an injured motorist. Your Lordships will not be surprised to hear that this was because of the risk of being sued if anything went wrong. Now, we all know that this is completely wrong. But if that is what trainers are telling their students, we must not be surprised if the “do nothing” culture emerges. It certainly seems to me that there has not been much positive change since 2006.

All my life I have been trained that, if an emergency arises, I must do something. I have certainly never hesitated to get stuck in, because that is how I have been programmed. When I was 16 or 17, as a Stowe School CCF cadet, I went off on my own on a serious military internal security exercise with the local TA unit. At the time this was unexceptional, but now it would be a serious child protection matter. When I visited the Regular Army at about 17 years old I was allowed to drive heavy high-mobility vehicles over a severe cross-country route, including swimming the vehicle in the River Weser. This would be absolutely out of the question nowadays. Later, I did significant amounts of TA training involving military logistics. Although we took much greater risks than would be tolerated nowadays—for instance, with driver hours—I cannot recall any significant or life-changing injuries. The payback to society for the modest risk taken was very great indeed. In later years I was engaged in civilian aid operations in Bosnia and Rwanda, and in military operations in Bosnia and Iraq. I also survived for a considerable time as your Lordships’ government spokesman for transport matters in the House of Lords, despite the efforts of the noble Lord, Lord Davies of Oldham. So the seed was sown very early on.

Nowadays in my spare time I do a lot of work at the REME museum in Bordon, particularly with tanks and tank transporters. Obviously they are hazardous, but you can be trained in how to operate them safely and responsibly, and that is a useful skill for life. I have no doubt that there are youth groups and charities in the Portsmouth and Southampton areas that try to steer youngsters away from vehicle crime and perhaps gang culture. I could offer some fantastic opportunities for them in getting involved with operating a tank transporter or an armoured recovery vehicle. I know from experience that I could alter a youngster’s whole attitude and make it far easier to secure that all important first job, perhaps with a plant hire company.

The really sad thing is that I know any such scheme is quite impossible for health, safety and compensation-culture reasons. It is simply out of the question. These days, when cadets visit the museum, they cannot even be allowed to climb on the tank. Of course, youngsters outside of the cadets will still get their excitement and adventure but that might be from drugs, motor crime and other undesirable activities.

I turn to the Bill itself. As I understand it, the Bill is mainly concerned with negligence but also covers a breach of a statutory duty, though not a criminal matter. Does a statutory duty include the Health & Safety at Work etc. Act, particularly the Management of Health & Safety at Work Regulations? It would be helpful if the Minister could write to me explaining what is covered and what is not.

During the passage of the Bill in the House of Commons, Ministers seemed to be in some difficulty explaining what, if anything, the Bill did. In my time in government I found case studies very useful for explaining how the legislation worked, and particularly where the dividing line was. Officials hated case studies, and I suspect that this was because they did indeed explain exactly what was and was not intended. The alternative seems to be to let case law develop. I urge the Minister to use case studies to argue his position in Committee.

Some noble Lords think that the Bill goes too far or is unnecessary. I do not think it goes far enough. I do not think that a person should be liable for his actions in an emergency unless a perverse course of action was taken—in other words, no reasonable person with the experience of the person in question would have taken that course of action. In the unlikely event that your Lordships agreed such an amendment, that would surely change the law. It therefore seems to me that the Bill is amendable.

I do not have a problem with the noble and learned Lord, Lord Lloyd of Berwick, tabling his reasoned amendment, because the Bill is a relatively short and simple one. However, I disagree with the amendment’s merits. I think that we should give the Bill a Second Reading, while recognising that we will have quite a lot of work to do.

Crime and Courts Bill [HL]

Earl Attlee Excerpts

Monday 10th December 2012 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords—

[Earl Attlee]

My Lords, we need to be a little careful about adhering to the rules of Report.

[Lord Mackay of Clashfern]

My Lords, the noble Baroness has referred to something that happened about 20 years ago in relation to experiments in Scotland. As she said, judges there were able to make arrangements for televising trials without any change in the statute law because there was no statute restricting that possibility. A considerable number of cases were televised under that arrangement. The television authorities put together a programme because, interested though they were in Scotland, it was nothing in comparison with the interest they had in proceedings in England, for reasons which perhaps an 18th-century Scottish judge might have speculated about. Anyway, that was the fact.

Crime and Courts Bill [HL]

Earl Attlee Excerpts

Tuesday 30th October 2012 Lords Chamber

[Lord Beecham]

This is not on the substance but perhaps I may ask for clarification on what the Minister is moving. Presumably he is not moving the amendments, because we will be doing that when the clauses are recommitted to Committee.

[Earl Attlee]

If I may assist the Committee, we are speaking to Amendment 155ZA.

[Lord Beecham]

I know what we are speaking to but we are not voting on it. We are not agreeing these amendments. Perhaps the clerks might advise. Are we not recommitting today’s business at the end of the next debate? I am not sure precisely what the procedure is. I suggest that the amendment be not moved and that we just leave it.

Crime and Courts Bill [HL]

Earl Attlee Excerpts

Monday 25th June 2012 Lords Chamber

[Lord Lloyd of Berwick]

I could not agree more; of course we are not talking about women but about, above all in this context, black and ethnic minority judges, as I made clear when moving the amendment. As the noble Baroness made clear, we are also talking about other forms of minority, including people with disabilities, for example. However, the whole thrust of this part of the Bill is intended, as one can see from the history, to get more women, as well as ethnic minority judges, into the High Court.

I will not say any more about those who have supported the amendment, except to emphasise the extremely effective point that the noble and learned Lord, Lord Carswell, made regarding the collegiality of the Supreme Court. I certainly had a sense of that when I was in the Supreme Court, and I also felt it throughout my time in the Court of Appeal, although one obviously does not have that sense as a High Court judge. We were all members of one court. I do not think anyone can tell what the effect of the appointment of part-time judges will be on that essential concept of collegiality in both those courts.

I should mention the point made by the noble and learned Lord, Lord Woolf. He was unable to imagine a woman who would be willing to accept part-time appointment to the House of Lords but not full-time appointment. The question comes back to this: if that is the case, the purpose of this part of the Bill is not to cure the problem of diversity. Instead, the purpose is to send out what the noble and learned Lord called a signal; a gesture. I am opposed to gesture legislation, which is what this amounts to. It will not make any difference in practice. Having said that, I beg leave to withdraw the amendment.

[Earl Attlee]

If the noble and learned Lord wants to speak to another amendment in this group, I would advise him not to withdraw his amendment. Otherwise the Lord Speaker will inevitably have to go on to further amendments in accordance with the Marshalled List.

[Lord Lloyd of Berwick]

I am very grateful to the noble Earl. I will defer begging leave to withdraw the amendment until I have moved the other amendment.

[Earl Attlee]

My Lords, the noble and learned Lord can speak to his other amendment if he wants. He cannot move it, but he can speak to it now.

[Lord Lloyd of Berwick]

My Lords, the second amendment in my name and the names of the noble and learned Lords, Lord Carswell and Lord Woolf, is concerned only with diversity. It affects the judiciary at all levels. The amendment would leave out line 27 of Clause 18 and Part 2 of Schedule 12.

The Government accept that judicial appointments must be solely on merit. However, the Government argue that there might be cases where two candidates were of exactly equal merit, like two candidates getting the same marks in an examination, in which case the woman or the black man should be preferred. At least, that is the idea. “Solely on merit” is thus to be given a special meaning.

How is it going to work? Let us suppose there is a vacancy in the Supreme Court. The candidates will almost certainly come from the Court of Appeal. Let us suppose that there are two candidates from the Court of Appeal. Their abilities will be well known to the selection commission. The Bill provides that the selection commission shall consist of an odd number of members, not less than five. Is it conceivable, I ask, that all five members would find the two potential candidates of exactly equal merit? The answer is no. I suppose it is just possible that two members of the selection commission might favour one candidate, and two might favour the other, and the fifth member of the commission might be unable to make up his mind one way or the other, but this seems so unlikely in practice that it should not be the subject of legislation.

I am not alone in taking the view that I do. The noble Baroness, Lady Neuberger—who is still in her place, I hope—the noble Lord, Lord Phillips, and the Lord Chief Justice, all doubted whether candidates for the Supreme Court would ever be exactly equal. So did Christopher Stevens, the chairman of the Judicial Appointments Commission.

The idea that the Equality Act might be used where there are two candidates of exactly equal merit comes from a recommendation of the advisory panel in its 2010 report. As the noble Baroness, Lady Neuberger, will recall, it was recommendation 21. In a progress report of May 2011, the Judicial Appointments Commission said that it had always been able to distinguish between the relevant merits of different candidates, and that it did not anticipate that the Equality Act would ever be relevant in practice. Therefore I suggest that the idea should have been dropped then and there; it was nothing but an idea.

The members of the Judicial Appointments Commission operate in the real world. Part 2 of Schedule 12, which is based on the idea that one can have exactly equal candidates for these posts, is a good example of the sort of make-believe world in which Governments so often seem to exist.

That leaves only one argument. It is said that even though Part 2 of Schedule 12 would be useless in practice, it would send out a strong signal that diversity is of importance. This was the view of the Constitution Committee, stated in paragraph 101. It was also touched on by the noble and learned Lord, Lord Mackay, at Second Reading.

I do not believe that legislation should be used for the purpose of sending out signals. Moreover, in this context the signal is surely rather demeaning. We would be saying to highly intelligent women lawyers, “You may not have been the best but be of good cheer, you were first equal”. If I were the first black judge to be appointed to the Supreme Court, I would want to know whether or not I had been the best candidate, as I would under the existing law. Under the new law, I would not know. If I was only equal first, surely I would want to know who the other candidate was—and no doubt the other candidate would want to know who I was. Moreover, if I were a black judge, what would happen if the other candidate were a woman? How would the equality principle apply in those circumstances? I have formed the view that the Equality Act is of no assistance in this context. Of course it is of great importance in many other fields, but in appointments to the Supreme Court and the Court of Appeal it is of no assistance at all: indeed, it could do nothing but harm in the manner that I suggested. I beg to move.

[Earl Attlee]

My Lords, the noble and learned Lord made a slight mistake. He did not beg to move; we can just carry on debating the amendments in this group.

[Baroness Falkner of Margravine]

My Lords, I will comment briefly on this point. In his closing remarks the noble and learned Lord, Lord Lloyd of Berwick, asked an interesting question that is posed frequently: where there is a tie-break, as I would refer to it, what should be done if there are two candidates of supposedly equal merit, one of whom is a woman and the other, for example, is from an ethic minority? I note that the report of the Constitution Committee gives a lot of assistance in how we should define merit but makes the point that, certainly in large-scale selection processes, there could conceivably be candidates who end up in a tie-break: in other words, who are assessed to be of equal merit.

It would be quite straightforward to apply the test in those circumstances. You would look to see which group is more underrepresented than the other group and, in the case where there are two from underrepresented groups, appoint the one that was not to be found there. That would be fairly straightforward. With more senior appointments, it is entirely conceivable that it would be much clearer. We have heard that there is one female and no ethnic minority member of the current Supreme Court. In that case, it would be fairly straightforward, if the candidates were tied and came out equally in an assessment, you would go for the ethnic minority candidate. Although you would want to increase the gender diversity, on such an occasion, you would need to increase the diversity overall.

I also make the point to the noble and learned Lord that blatantly nobody is seeking to have the senior judiciary reflect the people they serve, because the people they serve on the whole are there, particularly in criminal cases, because they have done wrong. Nobody is suggesting that. However, the Constitution Committee’s report makes clear, as do a lot of other reports, that in senior positions in life it is terribly important for an inclusive society to have people who are representative of different strands of society as a whole. I rest my case there.