Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

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

Moved by

[Lord Blencathra]

97ZA: After Clause 164, insert the following new Clause—
“Sex-specific incarceration for offenders
(1) Where a person who has undergone gender reassignment is serving a custodial sentence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(2) Where a person who has undergone gender reassignment is remanded in custody on suspicion of committing an offence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(3) Where the case-by-case assessment of a prisoner who has undergone gender reassignment determines that the prisoner should not be accommodated with prisoners of the same sex as registered at birth, separate accommodation must be provided to ensure that there is no access to or association with prisoners of the opposite sex as registered at birth.(4) This section applies whether or not the person has a gender recognition certificate.(5) Within 12 months of the passing of this Act the Secretary of State must ensure accommodation is available for the purposes of this section.”Member’s explanatory statement
This amendment would provide that all prisoners should live in accommodation provided in consideration of both their sex registered at birth and their gender identity. Prisoners with the protected characteristic of gender reassignment will ordinarily be housed according to their sex as registered at birth. On a case-by-case basis, prisoners may be allocated to a specialist transgender unit, with no contact with prisoners whose sex registered at birth was the opposite of their own.

[Lord Blencathra (Con)]

My Lords, this is my new amendment, Amendment 97ZA. I accept that my original amendment in Committee was unbalanced. I sought to protect female offenders but neglected to account for the small minority of trans women who might face unacceptable risk if housed in male prisons. My new amendment aims to afford appropriate protection to all prisoners, notwithstanding that there can be no guarantee that every prisoner will be entirely protected from risk, even within their own single-sex units. I thank my noble friend Lord Wolfson for our meetings, for the teach-in he organised and for our ongoing discussions.

Your Lordships may ask why I have brought back an amendment. The answer is that this is an important issue in its own right. The needs of women in prison matter, and these needs mandate single-sex provision. Women in prison are acknowledged to be an exceptionally vulnerable group and cannot simply choose to use a different space which remains single-sex. These reasons were discussed in the previous debate and I shall not repeat them. But this is also representative of the wider issue: the ability of legislation to maintain single-sex spaces for women. The female estate is a definitive example of a space that should be single-sex. If women in prison cannot be guaranteed single-sex spaces, no woman or girl can. Hospital wards, changing rooms, rape crisis centres, refuges and toilets in schools—I am talking about anywhere where women and girls, for reasons of dignity, privacy and safety, require single-sex spaces. I simply say this to my noble friend: if legislation is insufficient at the moment to secure single-sex provision for women in prison, all females in this country are left vulnerable.

Since my previous amendment, I have received a great many letters, from both men and women. An amendment to secure the rights of women in prison to single-sex spaces has wide support across a cross-section of the general public. Media coverage continually indicates that the general public support single-sex spaces for women and girls. Most recently, the article in the Times last week by my honourable friend Jackie Doyle-Price MP called for women’s prisons to become single-sex once more. Quite rightly, people see this as an important issue in its own right but they recognise that it is representative of the wider issue. This amendment matters not just to women in prison but for all women and girls.

The strength of evidence indicates that male and female prisoners should be housed separately. This is normal international practice, including in our own prison rules. When the policies that permit some trans women prisoners, who are of course of the male sex, to be housed alongside women in the female estate were put in place few years ago, this was essentially a live experiment. It was not grounded in data: no data demonstrated the acceptability of the impact on women in prison and on the operation of the female estate. In fact, research recently conducted on behalf of the Scottish Prison Service demonstrates that female offenders are negatively impacted when they are housed with trans women prisoners. This is notwithstanding the MoJ assertions that operational staff perceive that the policies are working well. I am pleased that the Ministry of Justice has committed to exploring opportunities for research in this area.

It was also clear from the teach-in that the MoJ believes that the ability to act differently from the current policies is constrained by current legislation. I shall not argue on this point. But if real change is to be affected, legislative change is or may be necessary. The purpose of the Gender Recognition Act was to legally recognise the “acquired gender” of transsexual people in specific sets of circumstances, in line with a judgment of the European Court of Human Rights. The GRA contains supplementary provisions in Sections 23 and 24 that empower the Secretary of State to modify the effect of a gender recognition certificate by order. The Explanatory Notes to the GRA acknowledge the possibility that, at the time of passing the GRA, there were circumstances where its unintended consequences for people might not have been realised. I suggest that the allocation of trans women prisoners with a GRC to the female estate is one such situation, and that legislation to exclude these prisoners from the female prison estate on the basis of their sex—not their gender reassignment—is both possible and warranted.

The intention of the GRA was not to render the provision of separate-sex and single-sex services for females an impossibility, to replace sex with gender or to deny the sex differences between men and women. Neither was the inclusion of gender reassignment protection as a separate protected characteristic in the Equality Act 2010. The undesirability of that should be self-evident.

A variety of concerns in respect of the previous amendment were raised by noble Lords and at the teach-in we had. These related to the vulnerability of trans women and their safety, the ability of trans women to live in their acquired gender, and the undesirability of housing trans women prisoners far from their families.

No one wishes to place any prisoner at unacceptable risk of harm. Vulnerability exists throughout the male estate, and, although female offenders characteristically exhibit particular vulnerabilities, this does not exclude the possibility that the vulnerability of some male prisoners, including trans women, may be equally high. The question for all of us is how to keep trans women safe, and that is very important. However, that is wholly separate to the question: who has the legitimate entitlement to be housed in the female estate? I accept that, for some trans women, allocation to the male estate will not be appropriate and should not happen. My revised amendment means that Her Majesty’s Prison Service will be able to assess trans women on a case-by-case basis and make decisions concerning allocation in consideration of all known risks. The wishes of the individual prisoner can be considered, as in the present policy concerning transgender prisoners.

Where a prisoner cannot be housed safely in either the general population of the male estate or with other males in a vulnerable prisoners unit, the decision can be made to house that prisoner in a specialist transgender unit. This will ensure their safety from male prisoners. Access to or association with female prisoners would not be possible. But access to women in prison is not needed to keep these prisoners safe; it is removing them from the presence of men that is required to keep them safe—not putting them in a women’s prison. I note that the MoJ states that 94% of trans women are housed in the male estate. This means that the safety of the overwhelming majority of trans women can be met in men’s prisons.

At the teach-in, the Ministry of Justice indicated that trans women may obtain a GRC while housed in the male estate. It would seem that this means that they are able to satisfy the requirement of “living as a woman” for a period of two years to the satisfaction of the gender recognition panel. The overwhelming majority of trans women are housed in the male estate, meaning that their needs as women and their rights to live as their acquired gender can be met in men’s prisons. Certainly, specialist transgender units for women, which I advocate, should be run according to the female regime and provide a canteen for female prisons.

A concern was also raised that dedicated transgender units would leave trans women far from their families. This is not an issue that affects only trans women. A 2016 Her Majesty’s Inspectorate of Prisons report found that distance from family was a common barrier to visits throughout the prison estate. Women are particularly affected. There are around 10 times the number of men’s prisons in England and Wales than women’s prisons, and female offenders are more likely to be held at a distance from their families than men. A 2019 report stated that women are typically held at distances over 20% further away from their families than men. Some women are held at considerable distances from their families: as there is no female prison in Wales, women may be held over 150 miles from home.

Prisoner allocation to specialist units may be take place, even though this results in increased distance from family. Allocation of trans women to E Wing at Downview is an example. Trans women prisoners who find themselves housed far from family should be assisted. Financial help is already available from the assisted prison visits unit to facilitate visits from close relatives and partners of prisoners who are on low incomes.

I propose expanding this provision for trans women who are held far from family. The number of trans women prisoners currently held in the female estate is very small, suggesting that the number who may be held on specialist transgender units would also be very small. The additional financial cost would therefore be modest.

The transgender prison population is growing. Data released by the MoJ at the end of last year indicate a 20% increase in the population of transgender prisoners since 2019. Their needs in prison will become more pressing. The commitment to building new estate, as outlined in the prisons White Paper, provides the opportunity to provide that transgender prisoners are properly and appropriately accommodated. New secure units can be tailored to their needs and vulnerabilities. These needs and the operation of specialist transgender units should be a focal point for the so-called future regime design, with outcome frameworks to reflect this.

--- Later in debate ---

I think I have answered all the questions that have been put to me so I shall end on this point. A number of noble Lords have put to the Government that there is public disquiet about this issue. We have put in place a policy that we think provides for the proper management of transgender prisoners and the proper protection of all women in the women’s estate. I am not going to make any apology for putting management and protection first and what is said to be public opinion—whether on Twitter or anywhere else—second. I am conscious that also in our prisons are people who have been found guilty of the most heinous crimes, such as sexual violence against children, and we do not manage those prisoners by the way that public opinion might suggest they be managed. A proper criminal justice system takes account of the considerations that I have set out. For those reasons, I invite my noble friend to withdraw the amendment.

[Lord Blencathra (Con)]

My Lords, it is normal to say when winding up that it has been an interesting debate. This one has certainly provoked more interest than I had anticipated. I thank my noble friends Lord Cormack, Lord Farmer and Lady Meyer, and the noble Baronesses, Lady Fox and Lady Jones, for their contributions.

I start with the contribution from my noble friend Lord Herbert. I do not do anti-social media—things like Twitter and so on. I am not motivated to move this out of ideology, nor because of what the media say; I am motivated to do it because I have been approached by women in prison who, rightly or wrongly, are afraid for their safety. It is right to say that it is only a small number of trans women in prisons but there are a large number of women who are afraid of them. They may be wrong to be afraid, but it is in their interests that I am working to try to make sure that they no longer have that fear.

The noble Lord, Lord Pannick, said that my amendment would mean that transgender prisoners should either be stuffed into the male estate or put into some ghastly specially segregated facility. He made it sound like something the apartheid regime would invent. That is exactly the current MoJ policy: all transgender prisoners coming into the prison estate start off in the male estate. I am not inventing that; it is the current policy, as my noble friend has said. Some 90% of trans women prisoners stay in the male estate and then some are moved to the women’s estate. They are moved to a specially segregated facility called E wing at Downview. I merely suggest in my amendment that the facilities of E wing at Downview should be extended to house more transgender prisoners.

I think the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Pannick, are acting under the impression that the vast majority of these prisoners have spent a long part of their life as trans women—that they have had hormone replacement therapy, have had operations and have been living as women for years. That is not the case; as we have seen from Scotland, only one in 12 has. We do not have the figures for England because, understandably, they are confidential, but the anecdotal evidence is that there is no one in our prisons in England with a GRC who has gone through that process, so they are not those who have lived their lives as women for 20 or 30 years.

I say to the noble and learned Lord, Lord Hope, that, if the Government were to go down my route, I perfectly well accept that a system could be built in where someone who has had hormone replacement therapy, has had surgery and has been living as a woman for X number of years may qualify on a risk-assessment basis to classify as a woman, not in biological terms but in terms of being sent to prison.

I say to the noble Lord, Lord Cashman, that it is quite wrong to categorise this amendment as stigmatising trans people as a particularly violent class. That is not the case. I made absolutely clear in my speech that many trans women prisoners could not stay in the male estate because the male prisoners would be violent towards them; they are equally or more capable of violence.

I accept that the court said that what the Prison Service is doing is lawful. On the narrow point of law considered by the court, that is correct, and one would hope that the MoJ would not have a policy that deliberately broke the law. The point of issue here is not ideology but that what is lawful and what is morally right part ways. I urge the MoJ to accept my solution, which lets trans women prisoners live their lives in prison in a safe space, and women theirs. I simply do not understand why the Lib Dems, the Labour Party and some of my own noble friends now dislike women so much that they are resolutely opposed to defending their hard-won rights. I can see how the Government have blundered into this hole, but at least I see signs from them that they have now stopped digging.

I am not going to be successful today, but I say to all my noble friends on the Front Bench, in all departments, that this policy of downgrading the rights of biological sex women is heading for the scrapheap of history. It is not on the side of science, logic, morality or common sense, and everyone outside the political bubble we are in knows that. The battle for common sense and the rights of women will intensify. I conclude by suggesting that all my noble friends and all Ministers should read the excellent article in the Times last week written by my honourable friend Jackie Doyle-Price MP. She said, inter alia:

“Sex is biological and immutable. Gender is social. The two things are distinct. And by conflating sex with gender we have created an inevitable conflict between rights based on sex with those assumed by someone with a transgender identity … We can be inclusive without compromising the rights, dignity and privacy of women.”


Those are wise words. Jackie Doyle-Price is on the side of common sense and history.

I beg leave to withdraw my amendment, not because I am wrong but because I cannot win in the numbers tonight.

Amendment 97ZA withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Blencathra (Con)]

My Lords, first, I apologise to my noble friend for wrongfooting him. I arrived about 15 minutes ago, having sent a message to the Front Bench earlier today that, since my train was going in slow motion because of wind on the line, I was likely to be here rather late. My message was to thank the Government, the Home Office and my noble friend Lady Williams of Trafford, who took on board the criticisms that the Delegated Powers and Regulatory Reform Committee made. I have the privilege of being chair of that committee for the next three weeks only—so the Government can rest in peace afterwards.

We made a large number of recommendations and, to be fair, the Home Office took them on board and my noble friend has accepted the majority of them. That is a good message to send to other departments. It goes to show that, when my committee makes recommendations, they can be accepted by the Government, because they do not sabotage the Bill or stop the political thrust of what the Government are trying to do. At the very most, our most extreme recommendations may mean that some bit of delegated powers legislation might be debated for 90 minutes in the affirmative procedure—never under the negative, unless it is prayed against—which will mean a Minister having to host a debate for 90 minutes. It will probably be a Lords Minister, because the Commons possibly will not bother. So it can be done.

The only substantive comment that I wish to make is about my noble friend using the standard excuse—although he used it in a more delicate way—that we hear from most departments when they refuse to accept that the guidance to which one must have regard should be seen by Parliament. Some departments take a much more arrogant attitude and say, “Oh, well, we publish lots of guidance every year and we consult the stakeholders and experts, so we don’t need to trouble you people in Parliament who know nothing about it”. That is not quite what they say, but that is the thrust of it. I had a tremendous success last week, when I had a two-word amendment accepted by the sponsor of the Bill and the department—and those two words were “by regulations”. The clause said that “guidance that must be followed will be issued”, and we inserted the words, “by regulations”. That made no difference to the practical effect of the Bill.

The other justification that we often hear is, “Oh, we issue a lot of guidance, you know, and it has to be changed rapidly”. I am not suggesting that it applies to this guidance, but a lot of that is simply not true. If the guidance has to be changed rapidly, it has to be printed and issued. All we say in that case is “Put it in a negative regulation which Parliament can see, and only those who have an interest, or the Opposition, may move a prayer against it”.

We issued a strong report last week, and so did my noble friend Lord Hodgson of Astley Abbotts, from the Secondary Legislation Scrutiny Committee. My committee issued a report complaining strongly about disguised legislation, where the Minister not only has power to issue his own regulations but they are called “directions”, “protocols” and so on. That is disguised legislation. We also complained about skeleton Bills. If you want to see a skeleton Bill, look at the new Bill on healthcare, where there are about 150 delegations. The Bill has no guts—that will be filled in by legislation later.

I hope that my noble friends will speak to the Department of Health and the Ministers there. I have no idea what our committee will report when we look at the Bill next week, but I suspect that we will be highly critical of the contents. I hope that my noble friend the Minister, coming from the Home Office, can tell the Department of Health to follow our example. If we in the Home Office, one of the mightiest departments of state, can accept the vast majority of suggestions from the Delegated Powers Committee, other departments can do so too, knowing that their legislation is safe. We do not sabotage it and we do not try to stop it. We have no political input on the merits of the Bill; we leave that to noble Lords here. However, we do care about inappropriate delegations.

Having read the riot act on that, I thank my noble friends on the Front Bench for the considerable changes that they have made on this—and I just wish that they would go a wee bit further and accept the last one.

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Blencathra, just illustrated the value of his service as chairman of the Delegated Powers and Regulatory Reform Committee, which the House should thank him for—but in the knowledge that his successor is unlikely to give the Government peace because this is an area where all Governments need to be brought up to the mark. His more wide-ranging report last week illustrates this, and I will refer to it briefly in a moment.

It is good to be in the part of the Bill where the Government have listened, both to the Delegated Powers Committee and to the House itself, where voices were raised, particularly on the issue of the publication of the strategy on serious violence for which provision is made in the Bill. It really does not make sense for a strategy to exist which is not published and which therefore cannot be the subject of accountability. That was quickly recognised by Ministers at the Dispatch Box here. They have acted in accordance with that and I very much welcome that. They have met the objections to publication by specifying areas in which there must be a bit more care about what should not be published because of adverse consequences for the public interest, over things such as custodial institutions and other ways in which material could be released in a way which would be damaging to the general public interest.

That is one area where I am pleased that the Government have listened. I am also pleased that in a number of respects, if not quite all, the Government have responded on issues of laying guidance before Parliament and on providing a parliamentary procedure, either negative or affirmative, for some of the instruments. I will say in passing, however, that laying guidance before Parliament is a bit of a formality. Unless Members of one House or the other find a way of debating it—it is a little easier in this House than the other—laying it before Parliament does not achieve anything practical, whereas having a procedure in the House, defective though the negative procedure is, is much more useful. In most respects that request has been met.

Producing a list of previous legislation which was deficient in this respect is not a persuasive answer to the challenging issues raised by the Delegated Powers and Regulatory Reform Committee and the Statutory Instruments Committee. It is generally recognised that there is a serious deficiency which has been allowed to grow as the scope of legislations has extended. Things which have the practical effect of legislation have become more numerous, but Parliament has not developed effective procedures to ensure good scrutiny and to ensure that the neo-legislation is in workable and legally sound form.

As the committee said in its wider report, if, because of modern conditions, Parliament is being asked to accept new ways of legislating, it is surely right that the Government must stand ready to accept new methods of scrutiny and of being held to account. So, like others, we take the view that there is now an urgent need to take stock and rebalance their relationship. This Bill has arrived at the beginning of that very important process, but it is encouraging that Ministers have at least responded in a number of key respects, and I welcome that.

Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

Lords Hansard - part two & Committee stage
Monday 25th October 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My noble friend Lady Bennett of Manor Castle is unable to attend your Lordships’ Committee today, so I am proposing Amendment 30 in her place.

Along with the other amendments in this group, our amendment will improve the Government’s attempts to reduce serious violence. Youth groups, cultural groups and religious groups are just a few of the organisations that should be consulted in the exercise of the serious violence duty. There are many others too, and there will be big gaps in any serious violence reduction plan that has not consulted with and included these groups. They know their communities well, often with a different angle from other health services, local authorities and so on, and are currently not listed in the Bill—but they definitely should be. Perhaps most importantly, they can often shine a light on the failures of those other bodies with respect to how they perhaps underserve or misunderstand their communities.

So I hope the Minister will outline how youth, cultural and religious groups will be properly involved in this serious violence duty.

[Lord Blencathra (Con)]

My Lords, as chair of the Delegated Powers and Regulatory Reform Committee, I support Amendments 33 and 41 in my name. I intend to speak only once on the whole Bill, unless the spirit moves me via my noble friend the Minister’s reply. She will know that there were quite a few recommendations in the Delegated Powers Committee report, but I have put down just these two amendments.

If the Committee will permit, I will take the first minute to run through the more general criticism we made of the delegated powers in the Bill. I will not return to this subject again. In our response to the memorandum, we said:

“We are surprised and concerned at the large number of inappropriate delegations of power in this Bill … We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and … allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published.”


That is the subject of the amendments before us today, and that is what I shall major on.

We concluded our general introduction by saying:

“We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”


That is fairly scathing condemnation, and it is a bit unfair on noble Lords in this Committee and from the Home Office, because they had nothing to do with drafting these provisions.

We all know how it happens. The Bill has come from another place; Ministers who have served in the Home Office and other departments will honestly admit this. I dealt with about 20 Bills when I was in the Home Office. The Bill team and civil servants would come in and say, “Here’s the Bill, Minister”, and we would look at the general politics of it. Then they would say, “Oh, by the way, there are some delegated powers there. When you’re ready to come back again to tweak it, we can deal with it”. We all said, “Yes, jolly good; carry on”, but never paid any attention to them. I am certain that the Bill team in the Commons—the civil servants drafting the Bill—did not, and nor did the Commons Ministers. It came here and this bunch of Lordships have got a bit upset, and I suspect others will too.

I say to my noble friend the Minister to go back, as other Lords Ministers have to do, and explain to Ministers in the Commons and the Bill team—the Bill team thinks it is sacrosanct; it has drafted it and does not like people mucking around with it—that that bunch up the Corridor will want some concessions. My political antennae tell me that on Report there may be a few amendments made by noble Lords on all sides—amendments I might not approve of at all—but if we want to get somewhere, the Commons should make concessions on this, because they are really sensible.

Before I comment on the two amendments, I will give one example. We criticise the provisions on serious disruption; I think the noble and learned Lord, Lord Judge, wishes to remove them from the Bill. We say in our report that the Government have been able to draft a half-page statutory instrument describing serious disruption. If the Government can draft it there, stick it in the Bill, for goodness’ sake, and then it can be amended later.

That is enough general criticism. I apologise to my noble friend as she has to take it all the time, but other departments have been infinitely worse in some of their inappropriate delegations. The Home Office is not the worst offender.

Clauses 7(9) and 8(9)

“make provision for or in connection with the publication and dissemination of a strategy”

to reduce serious violence. Clauses 7 and 8 allow collaboration between authorities and a local government area

“to prevent and reduce serious violence”,

including to

“prepare and implement a strategy for exercising their functions”—

all good stuff.

Under Clauses 7 and 8, a strategy

“may specify an action to be carried out by … an educational authority … a prison authority … or … a youth custody authority”,

and such authorities are under a duty to carry out the specified actions. However, there is no requirement for such a strategy to be published; instead, the Secretary of State has the power, exercisable by regulations subject to the negative procedure, to

“make provision for or in connection with the publication and dissemination of a strategy”.

This power would appear to allow the Secretary of State to provide that a strategy need not be published if she so wished, or even to decide not to make a provision about publication at all. That does not make sense to us. My committee is

“concerned that the absence of a requirement to publish means that a strategy can have legislative effect—by placing educational authorities, prison authorities and youth custody authorities under a statutory duty to do things specified in it—but without appropriate transparency.”

We therefore recommend

“that the delegated powers in clauses 7(9) and 8(9) should be amended”—

that is, tweaked a wee bit—

“to require the publication of any action which is specified in a ‘strategy’ as one that an educational authority, a prison authority or a youth custody authority must carry out.”

That is a minor tweak—actually, so are many of the other things we recommend. We may be scathing in the report, but we are not asking that fundamental bits of the Bill be deleted or rewritten completely; we are merely asking for more transparency. Putting more things on the face of the Bill will save the Government rather a lot of grief in this House later on.

[Lord Beith (LD)]

My Lords, my name is on the amendment, following that of the chairman of the Delegated Powers and Regulatory Reform Committee. I commend the committee’s work in general, with more general comments on this Bill and the two amendments to which it has given rise in this particular case.

I am not persuaded of the merits of having a statutory structure for local co-operation strategies. I am strongly in favour of local co-operation; it should be happening everywhere to deal with serious violence and many other problems in the system. Where that is done and works well—as it has done in youth justice, to some extent—it demonstrates its value pretty quickly.

However, this is a statutory scheme; because of that, statutory obligations are created and there must be accountability for them. I am in a charitable mood so I will suggest that, if not exactly careless drafting, this did not anticipate the question, “What if no provision is made for publication of the strategy?” That is what the two amendments deal with. Perhaps the Government are undiminished in their intention that the strategies will be published and will therefore be accountable to the communities in which they are deployed but, as the Bill stands, it is weak on that point and it would be much better to make it clearer.

This is not by any means the worst delegated power issue to arise in the Bill—I am intrigued that the Home Office got off lightly tonight, with the chairman of the DPRRC calling it not the worst department. However, in this particular case, it needs to be made much clearer that, if statutory obligations are created and strategies have the force of statute, they must be published and must be accountable to the communities in which they operate.

Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Blencathra (Con)]

My Lords, in the impossibly restricted time available, I can only advise the House on the key findings of the Delegated Powers Committee, which I am privileged to chair. We published our report yesterday, and it is already heading to be a bestseller.

I am afraid that this Bill is yet another we have studied with thoroughly inappropriate delegations which seek quite wrongly to deprive Parliament of proper scrutiny—or any scrutiny in some cases—of important and contentious matters. It is not the fault of my noble friends on the Front Bench. They inherited this delegated powers drafting mess from the Commons, and Commons Ministers of all parties, going a long way back, always worry about the politics of a Bill and never care about the delegated powers in it. I was just as guilty when I was a Minister. The Home Office has not been an habitual offender over the past few years, but some of the delegated powers in this Bill are quite unacceptable.

So who do I blame? Those who drafted it and have an overview of all our criticisms over the years. It seems that the Office of the Parliamentary Counsel has blatantly ignored everything the Delegated Powers Committee has been saying over the last five, 10, 20 years; or it has not learned the lesson from those who drafted the Environment Bill, which was absolutely exemplary in delegated powers terms.

So yet again we see in Clauses 18, 31, 64 and 140 so-called “guidance” to which people “must have regard” not getting any parliamentary scrutiny at all—not even the negative procedure. Then there is the usual excuse that, since they will consult all other interested parties, we in Parliament can be ignored. We have the incredible statement that, although this “must have regard to” guidance can be used as evidence in court, it is not binding, so it does not need to be an SI considered by Parliament. I look forward to what noble and learned Lords have to say about that—please explain it to me in simple language.

Clause 43 amends the PACE Act 1984 on pre-charge bail; but not only will Parliament not see the details, the power to make the regulations is being given to a non-statutory body, a company limited by guarantee, in fact called the College of Policing. It was created as a limited company in 2014 and the then Home Secretary, Theresa May, said that it would be put on a statutory basis when parliamentary time allowed. Seven years later, that has never happened, although it has been granted extraordinary powers to make and enforce laws in the meantime. Honourable though they undoubtedly are, this is still a group of self-appointed chief constables in a limited company making rules which the police and others must obey. I simply say, these are the same people who issued contradictory advice on the enforcement of the Covid powers, contrary to what we in Parliament had actually voted through. I suggest that, until they are legitimised in law, they should have no law-making power and anything they propose should be advanced by the Home Secretary as regulations getting the negative procedure.

On Clause 61 on serious disruption, I emphasise to the House once again that the Delegated Powers Committee has no opinion whatever on the merits or substance of any parts of the Bill. But we all know that this provision is contentious, and the Government have produced an illustrative statutory instrument giving a definition of “serious disruption”. It is only half a page long, so my committee takes the view that it should be in the Bill, with a power to amend it as and when necessary. We take a similar view on Clause 77 and believe that the provisions should be in the Bill with an amending power.

We have also made some serious criticisms of the delegated powers in Clauses 7, 8, 80, 82 and 120 which I have no time to address today.

Our report was published yesterday. I encourage all noble Lords to read it and take forward any relevant amendments to which they may be guided. I do not want answers from my noble friends today, because I know we will get a full departmental response in due course.

Yesterday I was able to stand up in this Chamber and commend the noble Lord, Lord Goldsmith, and Defra for implementing every single one of the Delegated Powers Committee recommendations in a Bill which is almost the same size as this one. Why did Defra do that? It was because, like our recommendations here, not a single one of our recommendations on the Environment Bill removed or diminished any substantive parts of the Bill. We were saying to Defra on the Environment Bill, “Put these from negative to affirmative; publish these; lay them before the House. Let’s have a bit of scrutiny—we do not want to delete anything from the Bill or add anything to it”. That is why Defra could go along with it.

All we are saying today is that the Home Office and the police will be making a rod for their own backs if they do not let Parliament have even a cursory look at highly contentious guidance and regulations.

Life in the UK Test

Lord Blencathra Excerpts

Tuesday 3rd November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I certainly join the noble Lord in congratulating everyone who has passed the test. I think the pass rate is between 80% and 90%.

[Lord Blencathra (Con)]

I say to my noble friend that, having tried for interest half a dozen of the tests this morning and only failed one, I thought the content was generally correct as far as it goes. It is on the right lines. However, I suggest two tweaks. First, having just 24 questions is not nearly enough. It should be doubled to about 50 and more time given. Secondly, I found only one answer on the rule of law. There should be a lot more, stressing that this is a liberal, democratic country where democracy trumps religion and where we have respect and tolerance for everyone in society—oh, and no riding on the pavement, either.

[Baroness Williams of Trafford (Con)]

I thank my noble friend for pointing those things out. I suspect if we took a straw poll of all views in this House the handbook would be very long.

Brexit: Refugee Protection and Asylum Policy (EUC Report)

Lord Blencathra Excerpts

Tuesday 22nd September 2020 Grand Committee

[Lord Blencathra (Con)]

My Lords, I am privileged to serve on the Delegated Powers and Regulatory Reform Committee with the noble Baroness, Lady Meacher. I can say that, in our time together, we have never had a single word of disagreement: we are united as one in condemning Bills which are mere skeletons or stuffed full of Henry VIII clauses or where the negative procedure is used instead of the affirmative. Now, I am not going to talk about unaccompanied children today, but I am certain that the noble Baroness will not agree with what else I have to say; I hope only that she will still speak to me when we meet tomorrow morning.

This is yet another authoritative report from one of our EU committees, but of course it is now two years old. Thus, in my contribution I want to ask my noble friend the Minister for an update on where we are with creating our own bilateral arrangements to replace the Dublin III regulation, which are described in the Government’s response to the report as “a comprehensive readmissions agreement”. Under that agreement, we would seek

“the return of EU, UK and third-country nationals who have entered the UK directly from an EU country, and vice versa.”

The response said that such an agreement would preferably be

“underpinned by continued access to Eurodac, or a similar biometric system”,

but this would be subject to negotiation with the EU. I would be grateful to hear from my noble friend the Minister how we are getting on with that.

The committee raised concerns that, if we leave the EU without the continuation of a Dublin-type agreement, it would be more difficult to control the numbers of illegals crossing to the UK. But, in my opinion, Dublin III is a joke; it is ignored by the EU in any case. There can be no legal or moral justification for illegal asylum seekers from Afghanistan, Iraq, Libya or anywhere else in Africa or the Middle East arriving in this country. Genuine asylum seekers are supposed to seek asylum in the first safe country outside their own.

Let me make it clear: genuine asylum seekers are not a threat to anyone in this country and they should be welcomed. I deplore those who criticise genuine asylum seekers. But the problem is not helped when we have so many illegals crossing through Greece, Turkey, Egypt, Libya, Romania, Germany, Italy, Spain and eventually France for onward transmission to the UK. These people give a bad name to all the genuine migrants.

These people are not genuine asylum seekers; they are economic migrants who want a better life in this country. There is no harm in that, and anyone who wants to emigrate here for a better life should be able to do so. But we have the fundamental right who to take and who to reject, and I submit that we are not rejecting enough illegal seekers—or, rather, we are rejecting plenty, but we see masses of activist lawyers using every excuse and trick in the book to let them stay, even when all legal avenues have been exhausted so far. At the weekend, I read that my right honourable friend the Home Secretary is aiming to increase the number of illegals deported. Of course, the problem is that, as soon as the flight is about to leave, another bunch of lawyers pop up to stop it, no matter how many times the case has failed in the past.

Then we come to problem, which is never talked about, of French co-operation—or possible complicity. I am not sure how many millions we have given to the French authorities to strengthen defences against illegal crossings, but something is clearly not working. Note that the vast majority of crossings are made in good-quality RIBs. These rigid inflatable boats may be heavily overcrowded and dangerous, but they are all in pretty good condition with good outboard engines. Where do thousands of illegal asylum seekers get their hands on those? If I turned up in the north of France tomorrow, I would not be able to find a boat like that; I would not know where to go for one. They get them from the despicable racketeers who take money from these people for crossing over, stuff the boats full of far too many people who then drown or suffer. These racketeers must be getting the boats from legitimate suppliers.

I suggest that we work with the French to take action against all those businesses in the north of France selling rigid inflatable boats to asylum racketeers. Does anyone seriously suggest that the local French authorities do not know who is organising this locally or where these thousands of nice new RIBs come from? Are we asked to believe that these asylum seekers turn up not knowing a thing about northern France but miraculously discover all these boats that are ready for them?

Satellite images can show these boats being prepared and readied to be loaded. While I personally would have the SBS working the shores and taking out these boats before they set off, thereby saving the lives of those who would climb on board and possibly drown, I accept that that is too radical for Her Majesty’s Government. Therefore, we should pay the French to do it for us—and we will need to pay more than the racketeers are paying some of them to turn a blind eye.

Another bit of French possible complicity—which my noble friend dare not comment on either—is the authenticated reports that French government patrol boats were gently shoving boatloads of illegals into UK territorial waters, where the rescue service would take them to England and the life that they wanted. These actions are not by local officials in the Calais region, but by boats operated by the French Government. We may be outraged, but possibly we should not be surprised. The French Government have a problem with illegal asylum seekers in the camp at Calais and elsewhere on the French coast. Every time that they try to disperse them, they come back. So it is understandable that the French have concluded that the only way to deal with their Calais problem is to shove them on their way to England. Since many of these illegals have destroyed their passports or identity documents, it is exceptionally difficult to send them back. I urge the Government to seek a way forward on that.

I repeat that this country has always welcomed genuine asylum seekers and we want genuine immigration from skilled migrants. That is our fundamental duty and it is our history. But we need to redouble our efforts to stop all illegal and unjustified migration. As I said, economic migrants who have travelled through a dozen safe countries are not deserving and should not be classed as genuine asylum seekers, because they are destroying it for all the real, genuine ones.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Blencathra Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

[Baroness Meacher (CB) [V]]

My Lords, I support the noble Lord, Lord Rosser. As a member of the Delegated Powers Committee I strongly support all the points made in our report and, along with other noble Lords, I very much look forward to hearing from our chairman, the noble Lord, Lord Blencathra.

I am aware that part 6A of the Immigration Rules sets out the points-based system which applies to migrants from the rest of the world. EEA citizens will move from a position of free movement to having to find their way through a thicket of literally hundreds of pages of rules and guidance currently applying to the rest of the world. Will the points-based system be adjusted for EEA citizens? If so, in what ways will the EEA rules diverge from the current system set up in part 6A? The framework should surely be in the Bill.

Clause 4 has potentially life-changing consequences for a large number of people—an issue raised by the Delegated Powers Committee report. Ministers are given the power to modify primary legislation or to modify retained EU legislation, which has a similar status to primary legislation, as noble Lords know. These provisions, together with the power for Ministers to introduce regulations on any subject in connection with Part I of the Bill, provide incredibly wide powers for Ministers.

I want to take just one example of an issue which needs to be dealt with in the Bill and I am sure that the noble Lord, Lord Blencathra, will raise a number of others. Tier 3 of the PBS which applies to unskilled workers has never been opened. We know that the UK is likely to face severe shortages of so-called unskilled workers in some sectors, most particularly health and social care but a number of others as well. Can the Minister press her colleagues to spell out in the Bill the key changes envisaged to the PBS, at least for the short to medium term, to keep the UK economy functioning adequately? Then, of course, Ministers could have the powers to introduce regulations to adjust the system over time. I fully recognise that there would be a need for that.

We all understand the need for Ministers to be able to introduce consequential amendments through secondary legislation, such as removing the references to free movement scattered across the statute book. Typically, however, most consequential amendments are put in the Bill and then regulations are used to tidy up the bits and pieces that were somehow missed during its passage.

We are invited by counsel to the Delegated Powers Committee to consider whether Ministers’ powers to make consequential amendments through regulations should be restricted by a test of necessity. Can the Minister convince the Committee that the wide powers to make consequential amendments to this Bill are in fact necessary? It would be very interesting to hear the Minister’s defence, if you like, of the breadth of those consequential amendments left to regulations. Why cannot most such amendments be included in the Bill before Report? I am sure colleagues would support a short delay before Report to allow that to be done.

Even more serious than the power to make unlimited consequential amendments is the power to make regulations in connection with Part I of the Bill, as other noble Lords have mentioned. I strongly support the amendment from the Baroness, Lady Hamwee, to deal with that issue. This would of course become redundant if Clause 4 were replaced with a string of substantive clauses.

Can the Minister provide an adequate justification for the broad discretion given to Ministers to levy fees or charges on anyone seeking leave to enter or remain in the UK who until the end of the transition period would have had free movement rights under EU law? If not, then these matters must surely be in the Bill with provision for Ministers to adjust the fees or charges over time. As others have said, transitional protections for EEA nationals who are resident in the UK before the end of the transition period are surely known. Why are they not in the Bill? Perhaps the Minister could explain that.

Finally, I had understood that Brexit was all about restoring the sovereignty of the UK Parliament. This is just one of a series of Bills transferring powers from the EU not to the UK Parliament but to Ministers. We know that even where the affirmative procedure will be used, Parliament has no real power to influence the shape of those regulations. I hope the Minister will do all she can to achieve a more democratic outcome to this Bill, even at this late stage, by replacing Clause 4 with a series of clauses spelling out the Government’s policies, or at least the framework of those policies, to adjust the points-based system to meet the needs of the UK economy in the post-Brexit world.

[Lord Blencathra (Con)]

It is a delight to follow the noble Baroness, Lady Meacher, one of the most distinguished members of the Delegated Powers Committee. I am particularly grateful that she has not stolen all the sexiest bits of our report and has left me some original bits to quote, although a number of noble Baronesses and the noble Lord, Lord Green of Deddington, also quoted extensively from it. Perhaps I should sit down and say, “I agree with everyone who has gone before me”, but since I have been here in the Palace for about eight hours, working upstairs, I feel I should earn my crust.

I am speaking on Clause 4 stand part only to draw attention to some of the key points of the Delegated Powers Committee report on the Bill. I am privileged to chair that committee but, in view of some of the highly critical reports we have made recently, my noble friends may be pleased to know that I will be standing down as chair. My term is up by Christmastime, so there may be a more emollient chairman in future.

Last week I spoke on the Delegated Powers Committee report on the medicines Bill and quoted extensively from it. Our report then was hard hitting and I make no apology that I was robust—I suppose I was not robust but scathing—in my condemnation of the delegated powers, which in my opinion were an affront to democracy. I said then that the Bill was “not unique”, just another in a long line of skeleton Bills with all the blank spaces to be filled in by delegated legislation—much of it negative, of course.

Today I will not be as vicious in my remarks, but I report in sorrow that this Bill also has some fundamentally excessive delegated powers. Clause 4(1) confers on the Secretary of State powers to make regulations containing

“such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision”

of Part 1 of the Bill, including Henry VIII powers to amend primary legislation. The combination of the permissive concept of whatever the Minister thinks appropriate, as opposed to necessary, the words “in connection with” the Bill, the subject matter of Part 1, ending free movement, and the number of persons who will be affected make all this a very significant delegation of power from Parliament to the Executive.

With regard to those provisions, my Committee said:

“As we said in our earlier Report, we are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations (assuming no amendment was made to primary legislation).”


As for the scrutiny of regulations, we are concerned that the first set of regulations would be made by the “made affirmative” procedure, avoiding legislative scrutiny before they come into effect, but subsequent ones would be draft affirmative—but only if they amended primary legislation. Everything else would be negative, even if the regulations amend or repeal what is known as retained direct principal EU legislation. By contrast, the approach in the European Union (Withdrawal Agreement) Act 2020 is that the affirmative procedure is mandatory where regulations modify retained direct principal EU law.

We were also concerned that delegated legislation could alter fees and charges enacted in primary legislation. As mentioned by noble Baronesses earlier, it is usual for legislation to have a schedule at the end listing consequential amendments and a provision that regulations can tidy up any missing bits or loose ends with further consequentials, but in Clause 4 the bulk of the consequentials will be done by regulations afterwards.

So we concluded, overall, the following:

“We remain of the view, expressed in our earlier Report, that clause 4(1) contains an inappropriate delegation of power and that the Bill should be amended so that: the words ‘or in connection with’ are removed from clause 4(1); consequential amendments are included in the Bill itself, but with a power to add others (subject to a test of necessity) by regulations (subject to the affirmative procedure if primary legislation or retained direct principal EU legislation is amended or repealed); transitional protections for EEA nationals who are resident in the UK before the end of the transition period are included on the face of the Bill; clause 4(5) (about fees and charges) is removed, unless the Government can provide full justification for its inclusion and explain how they intend to use the power; and clause 4(6), which provides for the first set of regulations under clause 4(1) to be subject to the made affirmative procedure, is removed from the Bill.”


Those were the principal conclusions that we reached.

Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020

Lord Blencathra Excerpts

Friday 10th July 2020 Lords Chamber

[Lord Blencathra (Con) [V]]

My Lords, like the noble Lord, Lord Blunkett, I congratulate the Minister on demystifying highly complex regulations, and I congratulate the noble Lord, Lord Mann, on his sheer guts and chutzpah in challenging every liberal nostrum.

I am content with the proposed extension to five years on national security grounds, provided the material is properly destroyed if there are no grounds for suspecting people of terrorist activity. I am happy that people who are convicted of crimes should have their DNA and biometric material kept for evermore, but I do not see the need, or the moral legitimacy, of keeping for three years the biometric material of innocent people or of those who have been charged with an offence not related to terrorism—an ordinary crime. Three years is a great improvement, brought in by the coalition Government in 2012, on the completely open-ended system there was before, when the police, for no good reason and simply because they could, kept DNA and biometric data on innocent people. It is for Parliament to make that decision, not the police acting unilaterally.

When I was Police Minister way back in the 1990s, I vigorously defended the police, but it is with deep regret that I say that I do not trust them any more on a range of things, and that really upsets me. So I am not confident that the police are fully complying with the legal requirement to destroy all biometric data after three years. I would be grateful if the Minister will assure me—if not today, perhaps on some other occasion—that that is happening, that checks are being carried out, and that DNA and biometric data are not being retained by the police for longer than three years.

Covid-19: UK Border Health Measures

Lord Blencathra Excerpts

Thursday 4th June 2020 Lords Chamber

[Baroness Williams of Trafford]

My Lords, that is why the UK is engaging with different countries and airlines on all sorts of considerations while it considers what the next stage of this process will be. The Government are very keen to review this as soon as we possibly can within the next three weeks, and then the next stages of decision-making will be stated.

[Lord Blencathra (Con)]

My Lords, I have no regard for the opinions of Ryanair, which has refunded only 5% of its passengers, nor of easyJet, where 63% are waiting for a refund. However, will the Minister please reassure me about enforcement? If the police will not enforce the law yesterday, with massed demonstrators packed closely into Whitehall, how will this be enforced with individuals scattered throughout the country?

[Baroness Williams of Trafford]

My Lords, the reason why the locator form is so important is that people will be contacted and enforcement carried out to ensure that people follow the rules. However, as has been the case through lockdown, I think people see the importance of looking out for each other, because each time we break the rules we run the risk of infecting our loved ones and people in our community.

Windrush Compensation Scheme

Lord Blencathra Excerpts

Wednesday 6th May 2020 Lords Chamber

[Lord Blencathra (Con)]

My Lords, this coronavirus pandemic has shown us who really matters in our country. Of course, we all immediately think of the NHS staff, but we would all be starving if we did not have tens of thousands of people stacking shelves and lorry drivers delivering vital supplies 24 hours per day. I pay tribute to them, as well as the dustbin men, farm labourers, cleaners, cashiers, sewing machinists, vets’ assistants, call centre staff and hosts of other low-paid workers who have been keeping us going in lockdown and getting our deliveries to us. These and other low-paid manual workers are the heroes of this pandemic. Many of them are doing exactly the same work that the Windrush generation came here to do.

The people who will not be missed are the rather vacuous celebrities and rapacious lawyers—but no doubt the lawyers will crawl out again to mount massive claims against the NHS and everyone else they can think of whom they perceive to have deep pockets. They have contributed nothing to help us get through this crisis but will be out in droves, ambulance chasing, when it is over. That is why I am pleased that they will not be part of the Windrush claims process.

Many of us could not be in the Chamber at Second Reading, but I was concerned at some noble Lords’ comments that lawyers should be permitted to submit claims or even get legal aid to do so. We all know that lawyers who work on a no-win no-fee basis will rip off the client, who gets left with a tiny award at the end of it. If they were to get legal aid for this, they would rip off the taxpayer.

Some noble Lords, including the right reverend Prelate the Bishop of London, said that the form was too long and complicated, so I downloaded it to have a look. It is long but relatively simple, and claimants need to complete only the sections that relate to their individual circumstances. I think my noble friend the Minister has designed the compensation scheme and the forms to be as clear and simple as possible. For me, the telling point is that they were tested by the users, who found them satisfactory.

For those who want or need support to make a claim, the Home Office has funded Citizens Advice to provide free independent advice and support, and there will of course be the £500,000 fund for grass-roots organisations to promote the Windrush scheme and provide advice. In view of the scheme’s simplicity and the help available, there is no need for lawyers to get their noses in this trough on either moral or practical grounds, and I urge my noble friend the Minister not to budge on this.