Police, Crime, Sentencing and Courts Bill

Debate between Lord Blencathra and Lord Paddick

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I will speak to Amendment 109D to remove the negative procedure for all subsequent revisions of this guidance. I shall do that in my capacity as chair of the Delegated Powers Committee, but first I want to make some brief comments in a personal capacity on this whole, in my view, iniquitous concept of innocent people being put on a criminal records database.

As other noble Lords have said, it seems that there are 120,000 people who have not committed any crime, have not been found guilty by a court of any description and yet are held on a database with other people who have been convicted of terrorism, paedophilia, rape, murder, armed robbery and every crime on our statute book. Some may argue that it is not really a criminal record, but if an employer asks for an enhanced criminal record check, the police hand over the names of innocent people whom the police have tried and convicted. I am not convinced that their system of control is as accurate as they claim it is.

If someone complains that they have encountered a hate incident—and we see a growing mountain of these bogus claims—the police investigate. Even when no crime has been committed, the police may decide that the person should be convicted of having done a non-crime hate incident—no magistrate, no proper judge, no jury, just the police.

I will now return to the amendment in front of us in my capacity as chair of the Delegated Powers Committee —your Lordships will be relieved to know that I am being relieved of that position on Wednesday of this week when a new chair is appointed. I welcome the Home Office taking responsibility for these guidelines. If we are going to put innocent people on a criminal records list, it must be done under regulations which have proper parliamentary scrutiny every time—as these will have, at least the first time they are made.

When the Court of Appeal in the Miller case announced that the College of Policing—not a statutory body but a private limited company, as we discussed last week—had produced and implemented partly unlawful guidance, the comment from an assistant chief constable at the college was:

“We will listen to, reflect on, and review this judgment carefully and make any changes that are necessary.”


That is all right then. There is no need to bother 650 MPs or 800 Peers; this assistant chief constable will write our laws. Thank goodness the Home Office realised that it is completely wrong for the liberty and reputation of the individual to be subject to rules written by a private limited company. Thus, I partly welcome—no, largely welcome—the Home Office amendment before us today, but I am afraid it adopts the usual ploy that the Delegated Powers Committee sees in so many Bills, namely the first-time affirmative ploy. This means that the Bill says that the first set of regulations will be made by the affirmative procedure but subsequent revisions will inevitably be minor and technical. Therefore, we need not worry our pretty little parliamentary heads about them and the negative procedure will suffice.

We have seen no evidence to suggest that any subsequent revisions to this guidance will be minor or technical. Indeed, they could be substantial. Suppose, in a hypothetical instance, that the first set of regulations stipulates that these records for non-crime shall be retained for two years. A year later the Home Office issues a revised set with just one word changed: delete “two years” and substitute “10 years” or “25 years”.

The Minister may say—we get this a lot from all departments—that Ministers have no intention whatever of doing that and in the Delegated Powers Committee we always say that the intention of the current Minister is irrelevant and what the law permits them to do is the only thing that matters.

This business of recording non-crimes is such a contentious matter that we suggest that the affirmative procedure must be used on every occasion. The net result of that will be that any time the guidance is revised a Minister—usually a Lords Minister as the Commons will probably bounce it through on the nod—may have to do a 90-minute debate in your Lordships’ House. It is not a very heavy burden to impose on the Government.

The Court of Appeal said:

“The net for ‘non-crime hate speech’ is an exceptionally wide one which is designed to capture speech which is perceived to be motivated by hostility ... regardless of whether there is evidence that the speech is motivated by such hostility … There is nothing in the guidance about excluding irrational complaints, including those where there is no evidence of hostility and little, if anything, to address the chilling effect which this may have on the legitimate exercise of freedom of expression.”


I simply say that so long as these rules remain, Parliament must approve all regulations on this matter, whether it is the first set of regulations, the second, the 10th or the 50th iteration of them.

[Lord Paddick (LD)]

My Lords, as other noble Lords have said, this is a contentious issue. The noble Lord, Lord Macdonald of River Glaven, may recall from his time in a previous role a report from the probation service called From Murmur to Murder—the noble Lord is nodding—when those in the probation service decided that they would engage with racist clients to challenge their abhorrent views, because of where it might lead.

From stalking to domestic violence, to murder motivated by hatred, including terrorism, we know that non-crime activity can provide indications of individuals’ journeys towards serious violence, but the recording of such intelligence must be subject to a statutory code of practice. I have sympathy with the noble Lord, Lord Blencathra, in insisting on the affirmative procedure for any changes once the original guidance is issued. We welcome the government amendments and thank the noble Lord, Lord Moylan, for raising the issue.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Blencathra and Lord Paddick

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Paddick (LD)]

I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.

The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.

Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.

Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.

A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues a legitimate aim, including

“facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health.”

It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:

“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—


as this amendment proposes. He continued:

“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”


The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.

The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:

“the need to assess and manage all risks is repeatedly emphasised”

throughout existing MoJ policies. He continued:

“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”


Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.

The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:

“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”


He concluded:

“the policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”

This is the same case that noble Lords have been quoting from.

Yes, the Lord Justice said:

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”


He added that some women prisoners,

“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”

This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.

There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.

The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.

[Lord Blencathra (Con)]

The noble Lord is looking at me and implying that I suggested that transgender men were a threat to children. I said no such thing at all. I quoted the case of a male rapist who had raped two children. I was not suggesting that this was endemic in the transgender community, or that they are a threat to children at all. That is not what I said, not what I implied, not what I intended.

[Lord Paddick (LD)]

I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.

The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.