Undercover Policing
Lord Dear Excerpts(9 years, 7 months ago)
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Lord Bates
That would certainly be something for Lord Justice Pitchford to pick up on when he sets up this inquiry and for its terms and how it operates. The fact that it is set up under the Inquiries Act 2005 means that it has the ability to do that and to extend more widely. That will be welcome. I understand that today the Metropolitan Police have agreed in response to the concern relating to Members of Parliament that they will be contacting individuals directly to make them aware of what information is held about them. I think most of us would recognise that as a good step forward.
Lord Dear (CB)
My Lords, I endorse everything that has been said in the House today. I certainly endorse the fact that undercover policing is difficult and at times highly dangerous to the point of risk to life. High standards are essential in this area of police work. It is essential that the processes, but not the mechanics, are transparent and that there is strong oversight, without being prescriptive about times—I am not altogether sure that I agree with the noble Baroness about two days or whatever it was—as overprescription might be difficult. Will the Minister press, so far as he is able, for speed in this inquiry to put all these doubts to bed for the first time and put this area of policing on a firm footing as quickly as possible?
Lord Bates
I acknowledge the noble Lord’s experience and role in this very important area. One of the changes we introduced was that before there can be deployment there has to be authorisation by an assistant chief constable or above. On the pace of the inquiry, we need to ensure that it does its work thoroughly, but we are mindful of inquiries that are currently under way. At the outset, we are currently thinking of timing in the region of two to three years. I know that seems a long time, but the inquiry has a long historical reach and therefore it needs sufficient time to investigate and to make some robust recommendations for the Government to implement.
Police Reform
Lord Dear Excerpts(10 years, 3 months ago)
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Lord Dear (CB)
My Lords, I welcome the Statement. I endorse its subject matter and I am delighted to see leadership mentioned. It does not get a bold headline but it is in there and Members of your Lordships’ House will know that I have pressed that subject before. The fact that leadership needs ventilation by attachment to outside bodies is well taken. I have two questions for the Minister: one on leadership and one on another matter. Does he agree that, with good-quality, robust, visible leadership, all the issues of probity, ethics, due process, professionalism and so on are almost superfluous because they would flow naturally from it? Without good-quality leadership, any of the things I have enumerated would struggle to succeed. Leadership, therefore, needs not only to be endorsed, as it is in the report, but lifted to the top of the list, together with a proper career path for those who are recruited into the service with those attributes. Will leadership be one of a number of issues or is it going to be one of the prime issues that will lead the rest through?
Secondly, if leadership is a key to the door, this is surely a door with at least two locks. We have talked about the first metaphorically. The second key to the door is the structure of the police service. There is nothing in the list we have heard today on structure. There is a balance to be struck which is, sadly, out of kilter at the moment. Wherever I go in the police service or whenever I talk to the many people who are outside the service but interested in it, the question is always why we do not have a national force or a regional force; there are too many forces. I take no view on that other than it needs addressing. I am a great believer in loyalty to cap-badge and locality but the fact that we have the National Crime Agency at one end and police and crime commissioners at the other means there is a great gulf in the middle. So my question to the Minister is: will there additionally be an in-depth review, perhaps along the lines of what has been mentioned in the Stevens report, of the whole structure of the British police service, in which leadership and everything else can flourish?
Lord Taylor of Holbeach
I am grateful for the support of the noble Lord, Lord Dear, who speaks with a great deal of authority on this whole issue.
The question of leadership is at the heart of the Statement because, as the noble Lord will know, the Home Secretary recognises that leadership is the key to achieving police reform. The noble Lord will share that view. It is therefore very much a key feature of this Statement. Probity is important and the noble Lord will understand that the reinforcement of the professionalism of the police by having proper measures for probity as part and parcel of this package is a very important thing. I hope the noble Lord will also acknowledge that the establishment of the College of Policing has led to a remarkable transformation of policing. Indeed, the leadership that it is providing to the force through the code of ethics and the many other aspects of policing that it is addressing is very important.
I agree with the noble Lord that in the long term we perhaps need to look at the structure and the balance of resources. There will always be arguments. I come from a very rural part of the country, where it is very easy for people to feel almost overlooked. But there are also places where the pressures on policing are much greater than they are where I live. Those issues will not go away. What the Government have done with the formation of the National Crime Agency is facilitate the ability to deal effectively with those things that operate across borders while at the same time enabling local policing to take place, governed by local police and crime commissioners.
Serious Crime Bill [HL]
Lord Dear Excerpts(10 years, 4 months ago)
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Baroness Smith of Basildon
My Lords, in moving Amendment 4, I wish to speak also to Amendments 9, 11 and 12. Amendments 4 and 9 are similar: both require a consultation on ways to strengthen confiscation orders and restraint orders respectively. Amendment 11 addresses the disposal of assets. At present, one of the conditions of obtaining a restraint order is for the prosecution to show that there is a real risk that the defendant will dissipate his or her assets. These amendments would remove this requirement. As regards Amendment 12, although restraint orders are ex parte, many defendants then appeal against the orders and incur significant defence costs. If they win the appeal, their costs are reimbursed by the state. However, these can be high and can act as a disincentive for prosecutors to get a restraint order in the first place. Our amendments propose that any costs recoverable by the defendant would have to be capped at legal aid rates. These amendments seek to strengthen the confiscation and restraint orders. All these issues are linked. Indeed, I think that all the issues we are debating today around the proceeds of crime are linked, but this matter is at the very core of the process.
In its report, the National Audit Office said that the confiscation of criminal assets is “just not working at the moment”. Amyas Morse, the head of the National Audit Office, also said that,
“The use of confiscation orders to deny criminals the proceeds of their crimes is not proving to be value for money … nor … a credible deterrent to crime”.
That is a pretty sorry state of affairs and one which this Bill and the debates we are having in your Lordships’ House should seek to address. Whatever the reasons for that situation, those criticisms place a duty on your Lordships’ House to address the problem, to see whether legislative changes are needed and to question whether the law as it stands is being effectively and properly enforced, as the noble Lord, Lord Phillips, who is no longer in his place, said a moment ago. When criminals get to keep £99.74 in every £100, there is clearly a significant problem and it is right that this should be addressed and we support the Government on that.
In 2012-13, 6,392 confiscation orders were made, seeking the return of £318 million from a total pot, as it were, of £1.6 billion that had been illegally acquired. Eventually, only about £133 million was recovered and, although there are still some outstanding debts, the amount recovered will not rise significantly above that figure. I am curious and concerned about that issue. I hope that the Minister will comment on that and give an assurance that this issue has not been deprioritised by the Government. I hope that the Minister will also comment on the reasons why we have seen a slight reduction in the number of confiscation orders, which compounds the problem of getting money off the criminals once the orders have been issued. As I said, in 2012-13, only 6,392 orders were made, down slightly from 6,431, whereas we might have expected to see an increase in that figure.
However, this is not about just the number of orders; the most crucial point is compliance with the orders. I welcome the fact that there are now moves afoot to remedy this situation, close some of the loopholes and strengthen compliance with confiscation orders. However, I made a similar point in the earlier debate on third-party claims—namely, given the scale of the problem we are facing, can we not think bigger about this and try to do better? In our previous debate, the Minister said that the situation had improved. However, I put it to him that, if we are looking to improve matters, we should do the best we can, seek to be as strong as we can and close any loopholes.
I wish to address a number of issues. The first is the time limits for payments. The Proceeds of Crime Act currently provides that a confiscation order is payable immediately upon the making of the order unless a defendant can show that there are exceptional circumstances why this should not be the case, in which case they are given up to 12 months to pay, as we heard earlier. We recently highlighted the problems with this blanket approach. Some assets—this was referred to in an earlier debate and the Minister reaffirmed this—for example, money in bank accounts, are much easier to realise than other assets, which simply increases the likelihood of the defendant distributing or hiding their assets.
We are grateful to the Government for taking those points on board and for proposing action on this matter. Clause 5 now makes it clear that the full amount ordered to be paid must be paid on the day on which the order is made unless the court is satisfied that the defendant is unable to do so and includes a restriction on the circumstances under which an extension can be granted. That is welcome and there was a helpful explanation on that earlier. We also welcome the fact that Clause 7 requires the court to consider making an order that it considers appropriate to ensure that the confiscation order is paid. As discussed earlier, this includes placing a ban on overseas travel.
However, we want to probe other ways in which confiscation orders can be strengthened. Our amendment calls for a consultation on this. I hope that the noble Lord will be more sympathetic towards our proposals, given that we are proposing consultation. The areas that we would like to look at concern whether the court should be able to compel a suspect to return to the UK any realisable asset that is located overseas, to jail or fine someone who sells property that is subject to a confiscation order or to require a defendant to disclose any interests in property. Of course some of this touches on issues that have already been discussed. We would also welcome discussions on other ways to improve the orders; the noble Lord, Lord Phillips, earlier raised the issue of an individual’s assets being owned by a company that owns a company that owns a company, so that they are hidden in a labyrinth of financial dealings.
One way of strengthening the system generally is to strengthen restraint orders. The effect of a restraint or freezing order is to freeze the assets of a defendant, so preventing them from dissipating all or some of their assets before a confiscation order is made. Investigators and prosecutors agree that this is the most critical stage of the process. Early freezing of assets, at the outset of an investigation, minimises the risk that assets will be dissipated or disposed of. However, according to the National Audit Office, the number of restraint orders secured by prosecutors is falling sharply. I quote from the NAO report:
“Only 1,368 restraint orders were imposed in 2012-13, down 27 per cent from 1,878 in 2010-11. Many stakeholders believe opportunities for successful restraints are being missed and that the Crown Prosecution Service is too cautious in applying for restraint orders”.
The report also outlines that:
“Throughout the criminal justice system there is insufficient awareness of proceeds of crime and its potential impact. Within law enforcement and prosecution agencies, few officers and staff have good understanding about proceeds of crime legislation. In many cases effective powers, such as restraint orders, are applied late or not used at all, and specialist financial investigators are introduced to cases when audit trails have already run cold”.
Given that such orders can be applied for as soon as a criminal investigation is started, that would seem to address the problem. However, the current test is too high, because it must be shown that there is reasonable cause to believe that a defendant has benefited from his or her criminal conduct and that there is a risk that assets may be dissipated. Earlier this year, we called for the threshold needed to gain a restraint order to be lowered, with the onus to be placed on the suspect to show why assets should not be restrained, rather than on the investigating agency.
We therefore welcome the fact that Clause 11 reduces the test from “reasonable cause to believe” to “reasonable grounds to suspect” that a defendant has benefited from their criminality, which aligns it with the test for an arrest under the Police and Criminal Evidence Act 1984. The Bill also provides that a restraint order can be kept in place against a defendant for a reasonable period between the quashing of a conviction and the start of the proceedings for a retrial, and it closes the loophole that the restraint order is removed while the retrial proceedings are commenced, during which time the defendant’s assets are at risk of being dissipated.
However, the amendment that we have tabled today goes further than this, as we think that it should be up to the defendant, not the prosecution, to establish that there is no risk of dissipation. Alison Saunders from the CPS referred to this in her evidence to the Public Accounts Committee, saying that it was,
“quite a high test to look at”.
Another issue, of course, is the cost to the CPS. One of the key things raised to us by practitioners is that when an application is unsuccessful—particularly on appeal, as the original is often ex parte—the prosecution is liable for the legal costs of the defendant. Given that the CPS is undergoing cuts of 27% to its budget during the course of this Parliament, prosecutors understandably want to minimise the risk of expensive failure. Alison Saunders alluded to this also in her evidence. We have therefore tabled other amendments that do the same thing. Because they are probing amendments, we are not wedded to the wording but the intent is to try to tackle the disincentive. We are suggesting that a defendant should be able to recover costs only at a legal aid rate. It may be that that is covered by the LASPO Act but we wanted to raise this issue because it has often been raised with us. We are aware that there is a problem, and there is a way of dealing with this. Of course, there is unfairness in requiring an individual who has succeeded in setting aside a restraint order to pay his or her costs, but the alternative is to put all the cost risk on to the prosecutor. Capping costs at legal aid levels, as happens in other cases, could help lessen the disincentive to tackling large-scale restraint orders.
It would be helpful if the Minister could give a view on that. I hope that he will not just refer to his notes and resist the amendments because the whole purpose of Committee—I hope he understands the tone with which we have approached this—is not just to do better but to do the best we can. If he cannot accept these amendments, I hope that he will take them away and perhaps discuss this issue further with us, so we do not continue a situation in which we are unable to get at assets because they have been taken out of the country or removed and defendants do not come forward to say what their assets are. There is a way to deal with this and I hope the Minister can respond positively to these amendments. I beg to move.
Lord Dear (CB)
My Lords, I rise to re-emphasise the wording of subsection (1) of the amendment:
“The Secretary of State must consult on ways to strengthen and improve the effectiveness of confiscation orders”.
For many years, and bearing in mind my previous service in the police and my contact with it since, I have been concerned that the prosecution authorities generally do not pursue property that is the subject of crime nearly as rigorously as they should. That has gone on for years, although all the agencies concerned will deny it. It is a fact, however. I could produce evidence from recent personal experience but will not weary the Committee with that, other than to say that the police have always been, and still are, judged on reducing crime and gaining convictions. The CPS is also judged on its ability to gain convictions. It is not judged, by and large, on its ability to chase back money and other property.
I simply endorse the main thrust of subsection (1) of the amendment. There must be ways in which the efficiency of those two organisations can be enhanced, not by rewarding them—although rewards are involved, I suppose, particularly in the reapplication of assets that we have been discussing—but simply by recognising that efficiency is not just detecting crime or getting convictions but also recovering property and money. When all is said and done, in the upper echelons of crime, in particular, the criminals are in it for the money. If the money is not chased, it is eventually there for them to use later when they come out of prison, or when they have paid off the fine or whatever else. This is a plea to underline the wording of subsection (1) of the amendment, which I endorse.
Lord Taylor of Holbeach
My Lords, this has been a short but very useful debate. I am pleased that the noble Baroness has reiterated that her objective in tabling these amendments has been to seek ways in which we can improve the effectiveness of recovery and confiscation of money. The noble Lord, Lord Dear, graphically described how important that is. It is perhaps true that there has been little focus by those who should be undertaking this task. There are two reasons why this mission is important: first, because money has frequently been taken from society and should be returned to it; and, secondly, if this money remains in the hands of criminals they will have every incentive to carry on with criminality as a way of life, and all the costs that it brings. That lies behind where we are on this. All these amendments are concerned with improving effectiveness, and I think that the whole Committee would support that notion. In dealing with these amendments I hope to show that the measures proposed in the Bill will address the issues that the noble Baroness raised. I am grateful to her for bringing them forward. Indeed, it is quite proper that we should consider their effectiveness.
Anti-social Behaviour, Crime and Policing Bill
Lord Dear Excerpts(10 years, 9 months ago)
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Baroness Hamwee (LD)
My Lords, as the Minister said, I have put my name to the amendment, but the whole House will be grateful to the noble Lord, Lord Dear, for causing the Government, in the words of the Minister in his letter to a number of us, to “reflect carefully” and conclude that pragmatism was the right way.
I am pleased that the Government have decided to propose this change. I did not agree and I still do not believe that the original wording was the threat to freedom of expression which was argued, but it clearly troubled many people a great deal, and whatever the technicalities, I do not think that it is good law to have provisions which trouble people as to precisely what they mean.
I am pleased, too, that the Government have dealt with the tenure point, which was one that I and others picked up at the previous stage. What matters is that it now looks as if we will be able to shift away from the criminalisation of anti-social behaviour implicit in the current legislation and move to a new way to tackle the problem.
Lord Dear (CB)
My Lords, I of course welcome the amendment. It is, as the Minister said, substantially the same as the amendment in my name on which we voted on Report. I readily agree the inclusion of private housing in the same context as social housing, which has been on the statute book for a while.
I extend a vote of thanks at this juncture, first, to those who voted in support of my amendment on Report. I am very grateful to them for helping to preserve and protect fundamental rights under the law. I thank the Public Bill Office staff, who were, as they always are, unfailingly helpful to me in the progress of the amendment through to Report. I thank the staff of the Christian Institute, who gave me invaluable administrative help in the run-up to the vote on Report. Finally, I thank the Minister for his unfailing courtesy and help in what were not always the easiest of discussions to make progress on in this part of the Bill. Those of us who have had the pleasure of working with him before will know that that is his default mode, and I am very grateful to him.
Lord Harris of Haringey (Lab)
My Lords, sweetness and light is clearly breaking out after a slightly more difficult passage of the Bill at earlier stages. We should all be pleased that the outcome of this has been to strike a compromise between the very real concerns that the noble Lord, Lord Dear, my noble friend Lady Mallalieu and others expressed about the original provision. That had to be balanced, as it was in debate, by the real concern about problems faced by many tenants in both the public and the private sector, and I think that the Government have sought to strike an acceptable balance. To strike the slightest of sour notes, I think it was clear that that balance had to be struck from our debate in Committee, a very full and detailed debate. Perhaps, had the Government come forward with precisely this formulation at an earlier stage, they would have avoided a defeat. I also wish that a similar attempt to try to meet the genuine concerns of noble Lords in respect of other provisions in the Bill might have borne fruit before we got to this stage.
Anti-social Behaviour, Crime and Policing Bill
Lord Dear Excerpts(10 years, 10 months ago)
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( ) Anti-social behaviour is—
(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, or (b) in the case of an application for an injunction under this section by a housing provider or by a local authority when exercising similar housing management functions, conduct capable of causing nuisance or annoyance to any person.”
Lord Dear (CB)
My Lords, in moving Amendment 1, I want to be absolutely clear on one thing: anti-social behaviour can be, and often is, a blight on society and on those who suffer as victims of individuals who care only for themselves—people who are thoughtless, selfish or deliberately provocative. I believe, as many in your Lordships’ House will, too, that the law should continue to try to prevent that happening and to offer relief to those who suffer from that sort of behaviour. Their well-being is precious. On the other hand, civil liberty is precious, too, and a balance has to be struck between those two requirements.
My amendment is largely concerned with that balance and with a search for certainty, precision and clarity. It is concerned with the legal requirement that the law should be precise and not undermine fundamental human freedoms. The amendment is of course also about anti-social behaviour but the primary issue is an important and very long-established jurisprudential principle. From at least the days of Halsbury, it has been recognised that the law should be clear, reasonable, precise and unambiguous. People must know what the law demands of and grants to them. That principle is followed in all developed democracies. For example, in the USA the void for vagueness doctrine allows a statute to be struck down if it lacks sufficient definiteness or specificity so that:
“Men of common intelligence cannot be required to guess at the meaning of the enactment”.
That is from the case of Winters v New York in 1948.
Existing ASBO and public order legislation addresses anti-social behaviour by defining it in those circumstances as conduct that causes harassment, alarm or distress—a threshold test accepted by lawyers and lay people alike that has been well understood after years of judicial interpretation and never seriously challenged or openly criticised as too restrictive in scope. The Bill before us seeks to replace that three-word threshold test of harassment, alarm or distress with two new words: “nuisance or annoyance”. In so doing, it will open the door to uncertainty, confusion and legal injustice. Most of Clause 1 is concerned with the mechanics of the new injunctive procedure but the threshold test is the pivotal point around which everything else revolves. To put it another way, it is the foundation upon which all that is new will be based. The present threshold test of harassment, alarm or distress is about to be replaced with the altogether more imprecise words “nuisance or annoyance”. In other words, the net is being cast much wider—far too wide, in my opinion.
I am grateful to those who have supported me in tabling this amendment. The noble and learned Lord, Lord Mackay of Clashfern, was one of the most respected Lord Chancellors in the past half-century. The noble and learned Lord, Lord Morris of Aberavon, was an eminent Attorney-General. Both are signatories. So, too, is the noble Baroness, Lady Mallalieu, who brings a wealth of experience at the Bar as a practising QC and who spoke on 18 November in Committee on my behalf when I was unavoidably prevented from being in my place. That day, she tabled in my name a very similar amendment to the one we consider now. I am grateful to her for setting out the proposition with great skill—cogently, powerfully and persuasively.
She reflected that the law should be precise and not undermine fundamental human freedoms. She recognised that anti-social behaviour was a serious problem but that action to deal with it should be balanced against the need to preserve civil liberties. She reminded the House that the Commons Home Affairs Committee had said that Clause 1 of the Bill is “far too broad”. She paid tribute, as I do now, to the opinion—widely circulated in your Lordships’ House—of the noble Lord, Lord Macdonald of River Glaven, a former Director of Public Prosecutions, who roundly attacked the Bill saying that, “Nuisance or annoyance”, is a phrase,
“apt to catch a vast range of everyday behaviours to an extent that may have serious implications for the rule of law”.
He went on to say:
“In my view, the combination of a low and vague threshold for the behavioural trigger, coupled with the civil standard of proof, creates an unacceptable risk that individuals will inappropriately be made subject of a highly intrusive measure that may greatly impact on their fundamental rights”.
It is not only Members of this House and of the other place who are concerned. A wide, and even disparate, range of organisations and civil liberty groups have expressed the same opposition. Justice, Liberty, the Criminal Justice Alliance, the Standing Committee for Youth Justice, Big Brother Watch, the National Secular Society on the one hand, the Christian Institute on the other, the Association of Chief Police Officers and many more have all said the same thing. A letter was published in the Times on 10 June last year in which around two dozen organisations expressed opposition to the phrase “nuisance or annoyance”. It reminded us that an injunction in those terms could be applied to anyone over the age of 10. It reminded us that it was subject to a new burden of proof, lowered to the civil burden on the balance of probabilities. It reminded us that it is open to indefinite duration and does not require any form of intent, and that a breach of the injunction can result in serious sanctions, including imprisonment.
I have a distinct feeling of déjà vu in speaking to this amendment, for it was only just over 12 months ago, on 12 December 2012, that I proposed an amendment to remove the word “insulting” from Section 5 of the Public Order Act 1986. The ingredients of that debate were strikingly similar to the issues today. Again, an important legal freedom was then at stake. The word “insulting” had been employed more and more to curb the exercise of free speech in public. That fundamental right was being abused. More and more, police and prosecutors were unwilling to exercise discretion—some might say that they were unwilling to exercise common sense—and they increasingly deferred to the courts for a decision. That increased the growth of the chilling effect, the definition of the word “insulting” became blurred, injustice increased and confusion reigned. Your Lordships agreed that amendment, voting 3:1 with a majority of almost 100 to strike “insulting” from the statute on the ground that it was no longer precise enough. The only real difference in that exercise a year ago and today is that then I was able to cite a very long catalogue of examples of the results of poor legislation, and today we can only anticipate that such a list will develop—albeit an anticipation with some confidence.
No doubt it is to avoid an identical problem that the Association of Chief Police Officers has advised that, although it broadly supports the new IPNA, it believes that the suggested threshold is unreasonably low and it, too, advocates a return to the “harassment, alarm or distress” test.
With all those examples of the results of imprecise and vague legislation, I am frankly at a loss to understand why the Home Office is so eager to repeat the exercise, yet again facing a solid wall of resistance from experienced groups and learned individuals. I can but recall the words of the 1960s protest song—“When will they ever learn?”.
The phrase “nuisance or annoyance” has been borrowed, or perhaps lifted, from the context of existing housing legislation, which involves of course neighbours living in close proximity. In those special housing circumstances it is clearly almost impossible simply to move out or to look the other way or pay no attention. The present test in the housing sphere is restricted to conduct affecting the management functions of the landlord. What is appropriate in an environment with two-inch-thick party walls, or with 10 or more front doors opening onto a balcony on the fifth floor of a tower block, or with cramped lifts and common parts, all of that is clearly inappropriate, surely, in a public square.
Nuisance or annoyance, I would maintain, cannot and should not be applied to the countryside, the public park, shopping malls, sports grounds, the high street, Parliament Square, Speakers’ Corner and so on, because that risks it being used against any of us and against anyone in society. That risks it being used against those who seek to protest peacefully, noisy children in the street, street preachers, canvassers, carol singers, trick-or-treaters, church bell ringers, clay pigeon shooters and nudists—yes, they, too, have raised objections with me and, I know, other Members of your Lordships’ House.
Lord Taylor of Holbeach
I do not intend to give any examples to my noble friend. I have given the reason why we have a single test for anti-social behaviour leading to an IPNA. I have given my reasoning, and I hope that my noble friend will accept it; I am not going to go into listing individual activities that the IPNA is intended to address. That is why we have a single test and why noble Lords will understand that I am speaking in justification of that single test.
The second part of the test is not a throwaway test, as some have suggested. It is under this limb of the test that the court will consider whether it is reasonable and proportionate in all the circumstances to grant an injunction. In making such an assessment, the court will consider the impact on the respondent’s convention rights, including the rights to freedom of speech and assembly.
I agree with the noble Lord that we should not leave it to the courts to apply these important safeguards. All these factors will weigh on the minds of front-line professionals in judging whether to apply for an injunction. Our draft guidance makes this clear. This will be backed up by a framework of professional standards and practice operated by the police, local authorities and housing providers.
Having said all that—and I apologise to my noble friend for not giving him an example—I have listened to the strength of feeling around the house on this issue. The Government’s purpose is plain: we wish to protect victims. ASB, or anti-social behaviour, ruins lives and wrecks communities. In our legislation, we need to ensure that authorities seeking to do so have coherent and effective powers to deal with anti-social behaviour. Recognising noble Lords’ concerns, I commit to take the issue away to give myself the opportunity in discussion with the noble Lord and others to provide a solution that clarifies the use of the legislation and safeguards the objective, which I think is shared around this House, of making anti-social behaviour more difficult and protecting those who are victims of it.
On those grounds, and on the understanding that the Government will return to the issue at Third Reading, I will not move for now government Amendment 2, and I hope that on the commitment to discuss the issue the noble Lord, Lord Dear, will not press his amendment.
Lord Dear
My Lords, we have been detained for something over two hours and I shall take no more than a couple of minutes of your Lordships’ time to say what I have to say. First, I sincerely thank all those who have spoken in this debate, particularly the three signatories to my amendment and the Minister, who has had to sit through a varied and interesting debate.
Secondly, I want to pick up on the chilling effect. The experience with the word “insulting” in the Public Order Act is sufficient in itself to indicate what front-line practitioners will do. Governed as they are by very well-oiled complaints machinery, they will undoubtedly be faced with many examples when a set of circumstances are produced for them, and they will be virtually pressurised into taking some sort of action, to pursue the case and push it through to the courts to decide. That is the easy option, and it is what happened all too often with “insulting”. To take an exercise in discretion and turn around to the complainant and say, “Frankly, I think we should let this one go by”, is not an option that they will take willingly. That is undoubtedly why the Association of Chief Police Officers as one group has said that it thinks that “nuisance and annoyance” is wrong and that we should stay with the well tried formula of “harassment, alarm or distress”.
The choice between those two wordings is the pivotal point of the legislation—the absolute foundation on which everything else hangs. We can talk for as long as we like about reasonable, just, convenient, necessary and all those adjectives, and try to make it work but, if the pivot does not work, all the rest falls away. The pivot suggested by the Government is “nuisance and annoyance”. We have no knowledge of what will happen if that comes into play, but we know what will happen with “harassment, alarm or distress”; it is well proven, well tried and respected, and has never been faulted. To move way from that is a step into the dark.
We have had no examples whatever of the sort of conduct that “nuisance and annoyance” seeks, rightly, to address. I pay great tribute to the Minister, for whom I have a huge liking and respect, but unless he can satisfy me—and I suspect that this is the case with others in the Chamber, from what I pick up from the atmosphere—that he is willing to move immediately to “harassment, alarm or distress”, I must seek to divide the House. I invite him to respond to that.
Lord Mackay of Clashfern
My Lords, if I understand the position that the Minister has taken up, he will have an open discussion, the precise outcome of which cannot, of course, be forecast. He will take account of all aspects of what has been put forward in the hope that we can, between us, reach an agreed solution to the problem which has the support of the whole House.
Anti-social Behaviour, Crime and Policing Bill
Lord Dear Excerpts(11 years ago)
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Lord Dear (CB)
My Lords, in addressing this omnibus, complex, 200-page Bill, I am conscious that it seeks to shine a very bright light indeed on anti-social behaviour. We have heard a lot about that in your Lordships’ Chamber today. It is behaviour that, at its worst, can cause an absolute blight on society and on the individuals caught up in that action. I think that the words of the noble Baroness, Lady Newlove, moved us all when she explained just how, in extremis, that can affect individuals.
I had thought—and I think that the noble Lord, Lord Ponsonby of Shulbrede, shares my view—that there was some evidence that the existing law, held in the Crime and Disorder Act 1998, was beginning to work with regard to anti-social behaviour orders. I have a couple of questions, not for the Minister to answer today but to hang in the air as we go through to the Bill’s later stages. Are there any compelling reasons why we should redraft sections of that Act? Is there anything that cannot be addressed by changes in policing practice, better targeted policing and embracing to better effect the other statutory services? I will not go on at great length as much of what I had planned to say, inevitably at this late stage, has been said but I, too, am concerned about the imprecise wording which, as we have heard, has already been criticised by Justice, Liberty, the Home Affairs Committee, the Joint Committee on Human Rights and others. The Bill seeks to extend the number of potential claimants originally set out in the Act. It is a fact that it is quite unprecedented to authorise injunctive relief in civil proceedings, even though the public authorities concerned may not have a direct interest in the relief that they seek. That is a very considerable extension of power.
The eyebrows go up even further on the burden of proof. The McCann case brought in the enhanced civil burden—the criminal burden of proof under the existing Act—and we are now seeking in the Bill to drop that onto the balance of probabilities. Taking that particular point, I want to focus on one set of words and to remind the House again that for anti-social behaviour orders under the existing Act the operative words are “harassment, alarm or distress”. I have no problem with those, and I think that the courts and the practitioners have no problem either. The concept of harassment is very well rooted in various statutes in our lexicon of law, “alarm” means fear or fright, and “distress” is fairly obvious as well.
Yet under what we are now calling IPNA—the injunction to prevent nuisance and annoyance—we drop all that and go back to using the words “nuisance or annoyance”. There is no ready reference to those terms in the criminal law, only in housing law. I have a distinct feeling of déjà vu in connection with the words “nuisance “ and “annoyance”, because it is almost exactly a year ago that I stood on the Floor of the Chamber to talk about an amendment that I had tabled to remove the word “insulting” from Section 5 of the Public Order Act 1986. Noble Lords might remember, if they were there, that that section criminalised,
“threatening, abusive or insulting … behaviour” .
“Threatening” is no problem, “abusive” is no problem, but the definition of “insulting” had been widely abused for many years. It was used by vindictive complainants to urge the police to take action when otherwise they would not, and by over-zealous police officers to deal with something that could have been dealt with by the exercise of common sense. Whether or not the individual went to court, it had a distinct chilling effect on the exercise of free speech. The amendment was whipped against, but it was solidly backed by many Members of your Lordships’ House, and was carried by a substantial majority.
I mention this because the word in play at that time was “insulting”, and the two words that we are specifically looking at here are “nuisance” and “annoyance”. “Insulting” was vague and led to all sorts of difficulties in the exercise of the criminal law. I would confidently expect that if we leave in the phrase “nuisance or annoyance” that will lead to the same thing.
In fairness to the Home Office, I have to say that only today I was given a document called Reform of anti-social behaviour powers—Draft guidance for frontline professionals. This is a draft practice document that I understand is going out for consultation, and it seeks in an honest way to give practitioners an idea of what they might bear in mind when they are looking at those words. According to the draft guidance, the test is whether:
“On the balance of probabilities, the respondent has engaged or is threatening to engage in conduct capable of causing nuisance or annoyance to any person; and … The court considers it is just and convenient to grant the injunction to stop the anti-social behaviour”.
The reference is to the court, so the chilling effect will still go on. If we leave it to the court, I guarantee that the practitioners will still wheel in cases and let the court try to deal with them, and we will get into the same position that we did with Section 5 of the Public Order Act.
I congratulate the noble Lord, Lord Paddick, on his excellent speech. He talked about the need for balance, proportionality and reasonableness, and I am entirely in accord with what he said.
Having criticised part of the Bill, I shall conclude by racing quickly to touch on the parts that I shall have the greatest pleasure in supporting, certainly in very broad terms. Here, I remind the House of my previous service in the police. Those are the provisions on forced marriages, the implementation of the College of Policing and all that goes with that, the attempts to strengthen the IPCC—we have heard much about that, and I am entirely in accord with what has been said today—and the moves to abolish the Police Negotiating Board and establish something much better called the Police Remuneration Review Body. On dangerous dogs, I, too, agree that it is the owners who are at fault. I spoke to my two Labradors only yesterday and they assured me that the owners, not the dogs, are always at fault. The possession of firearms for supply is also covered.
Lastly, there is something that is drawn from those excellent two reports by Mr Tom Winsor. I refer to the appointment of chief officers of police from other countries. That would have to be taken in parallel with what he has also recommended regarding two-tier entry into the police and direct entry to the rank of superintendent. All that is wrapped up together in an envelope called “leadership”. Noble Lords may recall that I have spoken on numerous occasions in this Chamber on the urgent need for a far higher standard of leadership across the board, recognising that there are some very fine leaders in the service already but not enough. We need to get hold of the leadership issue in the police service. The part of the Bill dealing with the appointment of chief officers of police from abroad will have my complete and utter support.
I look forward to the debates that will come in the later stages of the Bill and will do all that I can to support it.
Undercover Policing
Lord Dear Excerpts(11 years, 4 months ago)
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Lord Taylor of Holbeach
My Lords, it has been a privilege to listen to the noble Baroness, who has recreated some of the fears and anxieties which the Macpherson report sought to address. There have been few more damning indictments of an institution than that report. What is currently being alleged is that there may have been some aspects of policing at the time which were not reported to Macpherson, including this particular unit and its activities. These are matters of great concern. I have to be brief because other noble Lords want to come in, but I am pleased to have listened to the noble Baroness.
Lord Dear
My Lords, first, I declare my interest as a senior officer in the police service, and also that in the past 18 months I have given professional advice as part of a small group advising HMIC on the Kennedy case. That should go on the record.
I associate myself absolutely with the comments in the Statement that the noble Lord has read out to us. I share entirely the concern, and the tone of that Statement chimes exactly with my own feelings. I would also like to associate myself with the comments that have been made about the Lawrence family, and I will not go over that again. The whole issue is deeply worrying. I have only one small query in my own mind: why has it taken so long for that undercover officer to come forward? No doubt that will be a matter of record later on.
I will make one point and pose one question. The point I would like to make is that my knowledge of undercover operations at the extreme end is that it is a critical and highly dangerous part of policing. Penetrating officers into organised crime groups is difficult. It is critical—as the Front Bench has already acknowledged—and a very dangerous involvement indeed, which was not the case with Lawrence and is not the case with Kennedy either. I hope that the ongoing investigations will bear in mind the important end—the dangerous end—of undercover operations.
The noble Lord, Lord Fowler, has already mentioned the need for ethics and I subscribe to that. He is quite right, but I would take it a stage further. My question to the Minister concerns leadership. Ethics are no good unless the values of the service and the moral and professional compass of the service are there first. It needs leadership to hold it together and move it forward. This is a drum I have beaten here before, as the Minister knows. I would like reassurance from him that the whole question of leadership—not the College of Policing but leadership—is being addressed as a matter of urgency within the Home Office. It is to do with recruiting and training the right people, giving them the space to operate and encouraging leadership rather than management. With good leadership, this sort of thing should not and would not happen. That is the essence of the whole problem that we are looking at.
Lord Taylor of Holbeach
Many senior police officers are aware that there is far too much focus on management and not enough on leadership. It is, after all, the police force that we are talking about. Police forces need leadership and command and a sense of direction and focus. All that the noble Lord has said, from his vast experience, points to the disappearance of some of that focus in modern policing. The Home Office is determined to get it back. I hope that addresses the issues that concern him.
Queen’s Speech
Lord Dear Excerpts(11 years, 5 months ago)
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Lord Dear
My Lords, follow that. I am acutely aware that I am speaking at number 32 in what has been a very long day in a warm Chamber. I have no chance of holding your Lordships’ interest unless I am brief, and brief I shall attempt to be. There are three points in the Queen’s Speech that I will allude to very quickly, but with all sincerity.
First, there is the subject of police reform which, as some Members of this House will know, is very close to my heart and something which I support vigorously. I shall watch with some interest its progress in subsequent legislation, particularly as to whether it involves legislation or comment upon the subject of leadership in the police—something which needs to be resolved and enhanced against the hitherto remorseless trend towards management rather than leadership. That will embrace things such as direct entry and accelerated promotion to middle rank.
The question of persistent anti-social behaviour has blighted societies for a long time. I would certainly support any reasonable measures that will do something to enhance any thrust to reduce anti-social behaviour. In terms of the rehabilitation of offenders, what can I say? I am frequently asked how one can improve the police service. My answer to that is, “Do something about the probation service and something to stop the remorseless churn of offenders going through the system”. It is sometimes called the revolving door; recidivism is another term that is often used. They mean the same thing. Anything we can do to rehabilitate offenders and prevent them reoffending, and going into that constant cycle we know so well, is to be applauded. I shall throw my weight right behind that.
I turn in all seriousness to a zoological phenomenon that has been mentioned already. I say zoological because there is a popular expression these days of “the elephant in the room”, which describes an issue of considerable significance or a significant problem, or something that is known to all and sundry but never mentioned, never referred to or simply ignored. Today, as your Lordships have concluded, we have an elephant of significant proportions in this Chamber, as the Government appear unable to speak its name. It is, of course, the Marriage (Same Sex Couples) Bill, which is now in its last stages in the House of Commons and which, we must conclude, will pass to your Lordships’ House in the next few weeks.
I pose the question: why are the Government so secretive about it? What is the problem? Why was it not included in Her Majesty’s Speech yesterday? Carryover Bills have been included in the Queen’s Speech before. One obvious example, going back a few years, is the Equality Bill that was carried over from the 2008-09 Session with no fewer than four lines of reference in the Queen’s Speech. Moving up to the present week, the Energy Bill—another carryover measure—was included in the Queen’s Speech yesterday, so why was the marriage Bill not mentioned? Is it that the Government are losing heart or do they not intend to do other than smuggle it in through the back door?
This is a Bill in which all the usual procedures have either been evaded or ignored. It seeks to effect change to a principal institution in society: the institution of marriage, which has existed for at least 2,000 years in civilised society. Some people would say that it has been going for double that length of time. It will affect every single member of society, one way or another. Yet it has not so much been introduced by the back door; rather, it has slipped in through a crack under the back door. The noble and right reverend Lord, Lord Carey of Clifton, has already gone into some detail on that. Given the time, I will not repeat what he said, which I support.
Personally, I believe that the way in which the Bill’s introduction has been handled is shameful. There has been no royal commission; no committee of inquiry; no mention in any party’s manifesto prior to the last general election. Indeed, the possibility of its introduction was flatly denied by the leader of the Conservative Party in an interview on national television only three days before his successful election. There has been no proper public consultation, no matter how much the Government try to massage the results of what was, it has to be said, their limited consultation process. They were more concerned with the process of the matter than with content. If one goes into that procedure, the figures indicate that only one member of the public in every 10 supports the Bill. Nine out of 10 against is a substantial majority.
The Bill is vigorously opposed by all the leading religions. After the catastrophic losses in the local elections last week—your Lordships will not need reminding that around 450 seats were lost by the coalition parties—all the analysis shows that opposition to the Bill was a significant factor in the swing of voters away from the main parties.
The ComRes poll, published this week, provides overwhelming evidence of the depth of feeling in the general population against the Bill. Underlying much of that opposition is a fear of the damage that will be caused to the dynamics of the traditional family and to the welfare of children, to say nothing of the difficulties that will be experienced in education and in employment law. The right reverend Prelate the Bishop of Exeter spoke eloquently when he highlighted the error of not listening to public opinion.
One thing that has not been touched on—I will allude to it only in headline form now, but it is worth going into at another time—is the evidence of what has happened in other countries where similar change has been attempted. That evidence is discouraging, to say the very least.
I will not prolong this catalogue of criticism; there will be time later to mount a more detailed and focused attack if the Bill comes before your Lordships’ House. At this stage, I simply emphasise that there has not been any proper consultation, any proper research, any proper mature reflection and any account of public opinion.
My opposition to the Bill is most definitely not anti-gay. I dedicated much of my life in the public service to the protection and enhancement of minority rights and securing equality under the law, including the protection of homosexual rights and equalities. But I sincerely believe that the passage of this Bill into law will, in turn, create such opposition to homosexuals in general that the climate of tolerance and acceptance in this country that we have all championed and supported and seen flourish over recent years could well be set back by decades. The noble Lord, Lord Fowler, who is not in his place, spoke eloquently and, indeed, spread his wings on the subject of what is going on in Uganda. None of us would want to see anything like that in this country; the last time that sort of behaviour occurred was several centuries ago. I ask the noble Lord and others to reflect on the fact that this Bill is not so much about equality as sameness. I leave those two words with your Lordships.
My opposition to the Bill is quite unambiguously pro-marriage, supporting an institution that has been a fundamental part of society and families for centuries. In the hands of a mature Government, a Government who listen to the electorate, any change to that established order should properly take place only after the most profound thought and consideration. It should not, as has happened this year, be introduced as, some would say, a mere search for cheap political gain.
The Bill as it stands in the Commons is, I believe, ill conceived, ill considered, badly presented and heedless of consequences—the immediately obvious consequences and the laws of unintended consequences. I shall stoutly resist it should the opportunity present itself.
Police: Convicted Officers
Lord Dear Excerpts(11 years, 6 months ago)
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Lord Taylor of Holbeach
I have already talked about the 12 February announcement made by my right honourable friend the Home Secretary. The noble Baroness will know that part of our policy for improving standards within the police lies with the establishment of a College of Policing, which is leading a programme of ways to improve police integrity. It is important that the police generate these standards from within their own experience. It is not necessary for the Home Office to impose a standard on the police service. We are great believers that the integrity of the police force and the capacity for maintaining it lie within the police service itself. The figures that I have given have shown exactly that.
Lord Dear
Noble Lords will perhaps not be surprised when I say that I view the emerging picture of misconduct and, sometimes, criminality in police forces with great concern. There are a number of issues in this matter but one of them has to be attracting the right calibre of recruits in the first place, and then accelerating and developing leadership within the service. Can the Minister reassure the House that he, too, sees this as a fundamental priority? Can he reassure your Lordships’ House that when the results of the recently concluded consultation on leadership and fast-tracking have been evaluated in the Home Office, the Government will address this particular issue urgently and with all possible speed?
Lord Taylor of Holbeach
I can give the noble Lord that assurance. Earlier I referred to the vetting procedure also referred to by my noble friend Lady Doocey. The key thing is to make sure that you get the right people into the police in the first place. The vetting procedure set up by ACPO states that police forces should not recruit people with convictions, cautions and judicial or any other form of disposals which may call into question the applicant or their role in the service. It also states that each case must be judged on its individual merits; I think that the noble Lord will agree with that. Where standards have not been met, decisions about what action to take are for chief constables, based on the circumstances of each case. Other than in London, those decisions are monitored by the police and crime commissioners.
Crime and Courts Bill [HL]
Lord Dear Excerpts(11 years, 10 months ago)
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“Public orderPublic order offences
(1) The Public Order Act 1986 is amended as follows.
(2) In section 5(1) (harassment, alarm or distress) for “, abusive or insulting” in the two places where it occurs substitute “or abusive”.
(3) In section 6(4) (mental element: miscellaneous) for “, abusive or insulting” in the two places where it occurs substitute “or abusive”.”
Lord Dear
My Lords, in introducing Amendment 119 I have in the front of my mind the words attributed to Voltaire as far back as 1759:
“I may disagree with what you say, but I will defend to the death your right to say it”.
That is what it is all about tonight. The amendment seeks to curb what I believe is an increasing misuse of the criminal law so as to curb or prevent the proper exercise of free speech. The amendment intends that the word “insulting” should be taken out of Section 5 of the Public Order Act 1986 and that Section 6 of that Act should be similarly amended to take account of the earlier change.
It might help your Lordships if I examine the history of the inclusion of the word “insulting” in legislation to illustrate how and why we have arrived at the current state of affairs—a state of affairs that, I would venture to suggest, is wholly unacceptable. In the mid-1930s, there was a progressive increase in severe public disorder on the streets of east London and in other great cities of this country, when supporters of Mosley’s black-shirted fascists were clashing with both moderate left-wing and extreme left-wing opponents. The law then was proving inadequate to deal with the problem and, as a result, the Public Order Act 1936 was enacted. It did a number of things. It introduced a number of very serious new measures: for example, to authorise or ban public marches and demonstrations; to ban quasi-military organisations; to outlaw the wearing of political uniforms in public; and so on.
At a much less serious level, Section 5 of that Act introduced the now familiar words whereby it became a criminal offence to use “threatening, abusive or insulting” words or behaviour in a public place or at a public meeting whereby a breach of the peace was occasioned or likely to be occasioned. I would ask your Lordships to fasten on to the important words there: “threatening, abusive or insulting” and “breach of the peace”. That legislation stood the test of time, and the police regularly resorted to arrests for breaches of Section 5 in what might loosely be described as disorderly or hooligan behaviour on a typical Friday or Saturday night.
Fifty years later, as part of a general tidying-up of the law that deals with public disorder, the Public Order Act 1986 reflected much of the thinking that lay behind the old Section 5. It re-enacted the legislation that made it a criminal offence to use,
“threatening, abusive or insulting words or behaviour”,
and extended it to circumstances covering displays of any writing or sign in a public or private place within the hearing or sight of a person likely to be caused harassment, alarm or distress. It removed the reference to breach of the peace and it did not require any intent to cause harassment. Clearly, the intention of the new Act was to require a greater degree of particularity in the statute so as to increase protection for vulnerable individuals.
So far, so good, and the new Section 5 also appeared to work well for a time; but not for very long. With the wisdom of hindsight, it is clear that there has been a steady increase of cases where the words “insulting words or behaviour causing distress” were being misapplied in circumstances where individuals or organisations disagreed with comments made about their own sexual orientation, general beliefs or objectives, and where the criminal sanction offered by Section 5 was used by them deliberately to curb or suppress the proper exercise of free speech, either by prosecution, or by utilising the undoubted chilling effect of a threat of prosecution.
There are numerous examples, and some of them are enshrined in the folklore that has grown up round this subject. For example, the student arrested in a demonstration for suggesting that a police horse was “gay”; the street preacher arrested for saying that he regarded homosexuality as “sinful”; the 16 year-old boy arrested for holding up a placard that read “Scientology is a dangerous cult”; the pensioner threatened by police with arrest for putting a sign in his window that read “Religions are fairy stories for adults”; and the man arrested and charged after he growled at a dog, even though the dog owner did not wish to prosecute. There was no mention of what the dog wanted. There were the animal rights activists who were threatened with police action useless they removed little models of seals from public view; seals that had been red-painted to represent blood. The list goes on and on, and I will not weary your Lordships with more examples.
Whose fault is it? Who should we blame? Obviously, on occasions the police are to blame. They have not exercised always the degree of common sense and discretion that would properly have resulted in a blind eye being turned to the conduct in question. Often, however, the police have been manipulated by those whose tactic has been to complain to the police on the spot and insist on police intervention, with the express or implied threat of a complaint against them unless action is taken. A now often risk-averse police service, and sometimes risk-averse prosecutors as well, have found it safer to mount a prosecution and leave the courts to adjudicate.
If change is in the air—the change that is projected into Amendment 119—how much support is there for it? I remember the Committee stage of the Counter-Terrorism Bill in 2008 when I tabled the amendment to prevent the then Government from extending the limit on pre-charge detention of terror suspects from 28 days to 42 days. As with this debate about freedom of speech, that issue was concerned with a major constitutional freedom. As with this issue today, there was a long run into the debate. But in 2008, opinions were divided. I was confronted then with all the alternative arguments: in person, in your Lordships’ House and outside, by letter and e-mail. There were debates on the radio, on television and in the press. There were arguments for and against, before the amendment was carried with a majority of 191.
But what a contrast that was with the current situation. With only one exception—I will refer to that later—I have not heard a word in argument for the retention of “insulting” in Section 5. There have been no personal approaches to me, either here or outside; no letters or e-mails; no telephone calls. Every comment in the media is supportive. I understand from colleagues in the House that they have been the recipients of a flood—or is it a blizzard?—of letters from people outside in all walks of life supporting the amendment. There appears on that basis to be little or no opposition. I wait with interest to see what is voiced tonight.
And look at the support. The noble Lord, Lord Macdonald of River Glaven, until recently the Director of Public Prosecutions, has signed the amendment and written a detailed opinion that I have circulated individually to Members of your Lordships’ House. It gives a brilliant resumé of the substantial legal arguments supporting this change. The noble Baroness, Lady Kennedy of The Shaws, an eminent QC and chairman of Justice, and the noble and learned Lord, Lord Mackay of Clashfern, one of the most respected Lord Chancellors of recent years, have also signed the amendment. I am very grateful to all three for their interest and support.
But there is much more, and from individuals or organisations that do not always work harmoniously one with the other. The National Secular Society and the Christian Institute are often at odds, but here they stand shoulder to shoulder supporting the amendment. I should like to record my warm thanks to the staff of the Christian Institute for the administrative help that they have given me prior to this debate. There are also the Peter Tatchell Foundation; the Bow Group; the Freedom Association; the Equality and Human Rights Commission; and the Joint Committee on Human Rights, which reported as recently as 20 November, saying:
“We understand the sensitivities with certain communities on this issue, but nonetheless we support an amendment to the Bill which reduces the scope of s. 5 Public Order Act … on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression”.
Justice fully supports the amendment, writing:
“It is essential for the progress of society that we do not ossify public views by censoring debate on matters of current public controversy”.
Liberty would scrap the whole of Section 5, not just one word; but it has pledged wholehearted support, saying:
“The amendment would herald a very significant victory for freedom of expression”.
I will not go on; there are other organisations, and perhaps they will forgive me for not adding to this very long list and taking time tonight.
Where do the police stand in all of this—for it is front-line officers who are so often caught up in the practical application of these laws? The Association of Chief Police Officers has declared that it is not opposed to the change. Only the Police Federation expressed reservations; it is the one organisation that I know has doubts about this. The Police Federation fears that the amendment would reduce the powers of police in dealing with disturbances on the street that were low- level but nevertheless troublesome. I suggest that those fears are misplaced. Most of us know that the federation is feeling bruised at the moment. Change is not at the top of its agenda. But it might well take heart from the letter that the current DPP, Keir Starmer QC, wrote to me only last week, in which he said:
“The issue has been the subject of consultations by the Home Office in both 2009 and 2011. On both occasions, the CPS responded confirming that we are not in favour of a legislative amendment to remove the word ‘insulting’ from section 5. However, having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to a conviction could not properly have been characterised as ‘abusive’ as well as ‘insulting’. I therefore agree that the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions”.
That is a very significant message indeed, and from a very significant player. As noble Lords will readily appreciate, we now have the current DPP and his predecessor both saying that the amendment can and should be carried.
This amendment, if carried, would not leave a hole in the law. Section 5 in its curtailed form would still allow prosecution for “threatening or abusive behaviour”, and there are tougher and more targeted laws, such as incitement to racial hatred, and a range of aggravated offences where hostility to the group to which the individual belongs is taken into account. Along with general laws, such as public nuisance and breach of the peace, these give the police all the powers they need to protect minority groups. It is minority groups that the law needs to look at particularly, and they would not be left out. The “abusive” limb of Section 5 covers most, if not all, genuine cases of public disorder. I will not go into the judgment in Southard v DPP, but one could find that explored there in some detail. Any repeated harassment of an individual is caught by the Protection from Harassment Act while those who, for example, burn poppies on Remembrance Sunday would be caught by Section 4A of the Public Order Act, which outlaws intentional harassment, alarm or distress.
Having tried to deal with a brief resumé of how we are where we are, looked at the abuse of Section 5 and examined some of the relevant legal provisions, I have to ask: is there any reason why this amendment should not have a clear run up the final straight to the finishing tape? Almost inevitably, as happens in life, one problem remains—a fly of fairly considerable proportions in this particular jar of ointment—and I have to say that it concerns the Home Office. The Home Office launched a public consultation on 13 October last year that sought views on three issues. Two of those are of no interest in this debate today, but one examined the possibility of removing “insulting” from Section 5. I think, though without proof, that that is the consultation that the DPP referred to before he changed his view. That consultation closed on 13 January this year. As noble Lords will know, the guidance is that the Government should respond to a public consultation within three months—that is to say, in this case, some time in April this year. To date, we have not heard a word.
At Second Reading of the Protection of Freedoms Bill in November 2011, and again on the fourth day of the debate on the Queen’s Speech in May this year, I declared that, but for the consultation period, I would have tabled an amendment to delete “insulting” from Section 5. In winding-up that latter debate, the Minister asked for patience. On 4 July this year, when the noble Lord, Lord Mawhinney, raised the issue again, the Minister again requested that we remain patient. Still there is silence. It is now over 14 months since the consultation was launched, over 10 months since it closed and over five months since the Minister asked for a little more time to consider the matter. What is going on? Is it procrastination, prevarication or bureaucratic incompetence? I do not know but, whatever the answer, I suggest very strongly that we should not and cannot wait any longer.
I opened this debate with a quotation, and I finish with another. Echoing the judgment of the European Court of Human Rights in Handyside v UK, Lord Justice Sedley, when he allowed the appeal of a street preacher for an offence under Section 5 in Redmond-Bate v DPP, said:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.
In short, the removal of “insulting” from Section 5 will ensure that where words are not abusive and, importantly, where there does not exist any evidence of intent to harass, alarm or cause distress, nor any likelihood of fear of violence or actual violence, then those words will not be illegal, even though they may insult. You do not have to agree with the sentiments expressed—only with the right of the proposer to voice them in benign circumstances. You can be reassured that the remainder of the criminal law in this area will continue to protect all groups and individuals who are intentionally insulted.
I put it one last way. To oppose this amendment is to support and to play into the hands of those whose sole aim is to suppress views with which they do not agree, come what may. I ask this House to recognise the current abuse of the criminal process, to reflect on the need to protect basic freedoms under the law, to remember that freedom of speech is one of the most important civil liberties—some would argue, the most important civil liberty—and to support the amendment. I beg to move.
Baroness Kennedy of The Shaws
My Lords, I support the amendment. I will not take long because I hope that we will move to a vote very quickly. I am the chair of Justice, the legal organisation, and I can say with confidence that that organisation, which represents the legal profession up and down the country, is wholehearted in its support of this amendment. The stories that the noble Lord, Lord Dear, has told of ridiculous cases being brought before the courts could be replicated in robing rooms and courtrooms throughout the land, and I am afraid that it really is time that we put a stop to this.
A very famous American judge once spoke about the importance of the marketplace of ideas, which means listening to views that sometimes one does not like, sometimes, as Lord Justice Sedley said, are irritating, sometimes are provocative, sometimes are heretical and sometimes might upset us. However, that is what democracy is all about, and we should take pride in it.
I wholeheartedly support the noble Lord, Lord Dear, in this amendment, and I hope that all noble Lords who are here will see the importance of this. Unfortunately, the thin-skinned are not serving our democracy well by seeking to have these cases brought. I pity the police who are put into this difficult position, and I am glad to see that both the former Director of Public Prosecutions and the current one recognise that the law is there to deal with truly offensive behaviour or that would lead to further crime and disorder. I hope that noble Lords will support the amendment.
Lord Maginnis of Drumglass
In so far as I understand the term “abusive”—most noble Lords will understand that term—can the Minister define in legal terms the word “insulting”? I have not heard in anything that he said tonight a proper definition of “insulting”. I have heard it defined by the Opposition Front Bench. I shall leave my question at that. Can the Minister define “insulting”?
Lord Dear
My Lords, I shall respond to one thing. Lest there should be any doubt that I might have been concealing something in the letter from Keir Starmer QC, the DPP, having safely said that you can take “insulting” out of the section, in the last line he says:
“However, I also appreciate there are other policy considerations involved”.
I am bemused. I think that he probably knew something that I did not: that the Government are confused.
I hope that noble Lords on both Front Benches will allow me to say that I am totally confused by their attitude. We have a picture on the one hand that everything is well, despite the fact that the current DPP, the ex-DPP and the ex-Lord Chancellor—a plethora of legal minds in this House—have said that “insulting” can and should come out. The law is not leaving a hole in its place; “abusive” will cover it. There is the safety net of Section 4A, what is left of Section 5 and other legislation. I am deeply disappointed. I had hoped that the Government would support this, with the wide-ranging, voluminous support that there is on all sides of the House, from people who have much better experience than me.
The signals that have been sent tonight—indeed, that have been sent to all of us in the preceding few days—show that many noble Lords have put themselves about very considerably to hear this debate, travelling from the far corners of this country; I do not use those words lightly. We have waited far too long for this. Although I regret to have to say so, I beg leave to test the opinion of the House.