Public Order Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, in moving Amendment 2 in my name I will speak to the other 12 amendments in this group. Amendment 2, supported by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Chakrabarti, is related to the offence of locking on. I remind noble Lords that the Government’s Explanatory Notes suggest that

“Recent changes in the tactics employed by … protesters have highlighted some gaps in … legislation”,


of which this is one. Suffragettes chained themselves to railings, so to suggest that this is a gap in legislation as a result of recent changes in tactics employed by protesters is nonsense. I expect the Minister will challenge such an assertion, but we can debate that when he responds.

This amendment would narrow the offence of locking on where such actions—attaching themselves or someone else to another person, an object or the road, for example, to cause serious disruption—by removing the wider offence of an act that

“is capable of causing, serious disruption”.

Can the Minister explain what “capable of causing” actually means? If someone locks on in a minor side road or at the entrance to a cul-de-sac, causing little or no disruption, but had similar action been taken on a busy major road it would have been capable of causing serious disruption, would they commit an offence in such circumstances? If they block a busy major road at 3 am when there is no traffic, whereas had it been 10 am they would have caused major disruption, does that amount to it being capable of causing serious disruption in another place and time? Amendment 2 seeks to restrict the offence of locking on to incidents where serious disruption is actually caused to probe what “capable of causing” means and how widely the offence would be applied.

Amendment 25 in my name would again remove “is capable of causing” in relation to the offence of tunnelling, for similar reasons. Can the Minister explain what sort of tunnel might be capable of causing serious disruption but does not actually do so? Why, in that case, does it need to be criminalised? Similarly, Amendment 36 in my name, supported by the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, seeks to remove “is capable of causing” in relation to the offence of being present in a tunnel. Again, can the Minister explain how someone’s presence in a tunnel might be capable of causing serious disruption without actually doing so?

Amendment 3, in the name of the noble Lord, Lord Coaker, which we support and is signed by my noble friend Lady Ludford, similarly seeks to limit the scope of the offence by removing the reference to causing serious disruption to two or more people and replacing it with

“serious disruption to the life of the community”,

as suggested by the Joint Committee on Human Rights. We support this amendment.

Amendment 4, in my name and supported by the noble Lords, Lord Coaker and Lord Skidelsky, seeks to restrict the offence to cases where there is an intent to cause serious disruption—not merely, as currently drafted in Clause 1(1)(c), being

“reckless as to whether it will have such a consequence”.

Can the Minister give an example of when someone who does not intend to cause serious disruption should be guilty of the offence—in this case, of locking on —when they are simply exercising their right to protest?

Amendment 26, in my name, similarly seeks to narrow the tunnelling offence to cases where there is an intent to cause serious disruption, rather than where someone is merely “reckless” as to whether their tunnel might cause serious disruption. Can the Minister give an example of reckless tunnelling that might fall within the scope of the offence as drafted?

Similarly, Amendment 37, in my name and supported by the noble Baroness, Lady Fox of Buckley, seeks to narrow the definition of the offence of being present in a tunnel to cases where there is an intention to cause serious disruption. Would a journalist who goes to interview protestors in a tunnel be guilty of an offence of being reckless as to whether her presence in the tunnel might cause serious disruption, for example? Can the Minister provide any reassurance?

Amendment 6, in the name of the noble and learned Lord, Lord Hope of Craighead, and Amendment 23, in the name of the noble Baroness, Lady Chakrabarti, supported by the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Boycott, quite rightly attempt to place a definition of serious disruption on the face of the Bill, rather than asking us to sign a blank cheque where such a definition is decided by the Secretary of State subsequently by statutory instrument.

Similarly, in relation to the tunnelling offence and the being present in a tunnel offence, Amendments 27 and 38 in the name of the noble and learned Lord, Lord Hope of Craighead, seek to provide a definition on the face of the Bill of serious disruption in relation to tunnelling.

Amendment 17, in the name of the noble Lord, Lord Coaker, and supported by my noble friend Lady Ludford and the noble Lord, Lord Anderson, seeks to define

“serious disruption to the life of the community”

in Amendment 3.

Finally in this group, Amendment 54, in the names of the noble Lord, Lord Coaker, and my noble friend Lady Ludford, to which we give qualified support—subject to what the noble Lord, Lord Ponsonby of Shulbrede, will say in explaining the amendment—seeks to provide a definition of serious disruption to major transport works, as suggested by the Joint Committee on Human Rights. However, we have concerns over the inclusion of “reckless” in this definition, for reasons I have previously explained.

I think noble Lords will see the complexity of this Bill and the problem we have in trying to cram so many amendments into one group. If the Minister is able to respond to each and every remark I have made, I will be astonished. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, my name is to Amendments 6, 27 and 38, which have been mentioned by the noble Lord, Lord Paddick. They answer a question which was posed by the noble Lord, Lord Skidelsky, who asked if there is a definition of “serious disruption” in the Bill. There is not, and my amendments seek to provide a definition. I am concerned about the meaning of words, which is always crucial in Bills of this kind.

I am a member of the Constitution Committee and in our scrutiny of the Bill we noted that the clauses which use the phrase “serious disruption” create offences which could result in severe penalties. Most of them may be taken summarily before a magistrate, but then they lead on to other things. They could, in due course, lead to a serious disruption prevention order and all that that involves. The committee took the view that a definition should be provided.

We looked at Section 78 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Lord, Lord Carlile, referred, but, in our view, if one has to go down the line of designing a new offence, that definition was not tailored to the offences that we are talking about in the Bill. Therefore, the committee’s recommendation was that the meaning of “serious disruption” should be clarified proportionately in relation to each of the offences where the phrase arises.

In regard to locking on, I seek to say that “serious disruption” means

“a prolonged disruption of access to places where the individuals or the organisation live or carry on business or to which for urgent reasons they wish to travel”—

a hospital appointment, for example—

“or a significant delay in the delivery of time sensitive products or essential goods and services.”

So I have tried to design something that is very specific to the locking-on offence described in Clause 1.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The training of police— I am sorry.

The scope of the offences is drafted as such to ensure that all kinds of behaviour that protestors engage in to cause misery and disruption can be captured. Amendments 2 and 4 would mean the offence would not account for situations where, for example, a person has locked on to a dangerous structure but is removed by the police before maximum disruption can be inflicted. Amendments 25 and 26 would mean the offence would not account for situations where, for example, a person has started creating a tunnel but is removed before maximum disruption can be caused. Amendments 36 and 37 would not account for situations where, for example, a person is present in a tunnel with the intent to cause serious disruption but is removed by the police before the tunnel can reach the designated area where maximum disruption can be inflicted.

Amendment 54, tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, seeks to add a threshold of causing “significant disruption” to the offence of interfering with key national infrastructure. I am not sure whether the amendment should say “serious” disruption rather than “significant” disruption, as I note that the JCHR’s own explanatory statement stated the former. That would echo the threshold for other offences in the Bill. If Amendment 54 is intended to add a threshold of serious disruption, I would argue that while we assess that it is right for the lock-on offences and certain other protest-related offences to include serious disruption within their scope, we do not see it as necessary here.

As I have stated already, protestors have been able to cause huge damage to major projects such as HS2. While much attention has been focused on how protest activity across HS2 sites causes massive disruption to the project, protestors have also engaged in many more minor disruptive acts, such as disrupting ecological surveys, damaging construction vehicles or blocking access points to construction sites. While some of these acts may not meet the threshold of serious and/or significant disruption, they still have a significant impact on the project and its costs. The Government view such actions as serious and completely unacceptable criminal activity. The offence as drafted seeks to deter individuals from targeting these projects while giving the police powers that are more sufficient in order to respond.

Before I get onto the amendments dealing with serious disruption, I accepted the invitation of the noble Lord, Lord Carlile, to read Section 78, and I will have a go at answering. Because many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, it has been asked why, in light of that, we need to introduce the measures in the Bill. The fact is that we are not solely interested in the process on the M25: the Bill was conceived before Just Stop Oil protesters were dangling off gantries. There are other unjustifiable protests, such as those targeting HS2, which I have just discussed. The criminal offences in the Bill extend to private land; currently, those who lock on or tunnel are only committing aggravated trespass, which carries a relatively low sentence. As it is a broad offence, I am sure that many here in the Chamber today would not welcome the sentences for aggravated trespass being increased. Finally, the pre-emptive measures in the Bill will improve the response to criminal protest. They were in fact conceived following discussion with the Metropolitan Police Service on what would have improved their response to Extinction Rebellion-style protests.

Amendments 3, 6, 17, 23, 27 and 38, all seek to provide a definition of serious disruption. I thank all noble Lords for these amendments, particularly the noble Lord, Lord Anderson—although I note that he is potentially deserting his—for our constructive engagement so far. I also thank the noble and learned Lord, Lord Hope of Craighead, for his thoughtful contribution to this debate.

I assure the House that I absolutely recognise the benefits that a clear definition of serious disruption could bring. However, we have faced some difficulties when trying to define serious disruption. That is because being too prescriptive in our definition risks creating a loophole which would provide those intent on causing as much disruption as possible an opportunity to evade arrest and prosecution. I would also say that, as drafted, some of these amendments offer a narrower definition of serious disruption than the Police, Crime, Sentencing and Courts Act provides for under

“serious disruption to the life of the community.”

None of that is to say that I dismiss the principle of these amendments. There is a balance to be struck between a definition which is too broad and one which is too prescriptive. We will consider these amendments in detail to ensure that they accurately reflect the disruption that the Government seek to target while providing clarity to the police and others, as many noble Lords have mentioned, and we will continue to work with all interested noble Lords on this important matter.

[Lord Hope of Craighead (CB)]

Is there a prospect of the Minister coming up with definitions in time for Report, to prevent us having to discuss this all over again? It would be a great help if he could come forward with his definitions, if he is going to proceed along this line.

[Lord Sharpe of Epsom (Con)]

I will certainly endeavour to—I can make no promises. I am sorry: the noble Lord, Lord Ponsonby, asked me about recklessness, which I forgot to answer. The definition of reckless is to capture those for whom we cannot prove that they intended to cause disruption but who were clearly happy to cause it. I hope that clarifies the matter to some extent. For now, I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

Again, I will just talk to my two amendments. The noble and learned Lord, Lord Hope, and I are probing the Government from both ends with our amendments. I am probing on the basis that the offences are so broadly drawn that they require equally broad defences to protect innocent people from being criminalised. I imagine that the noble and learned Lord is being rather more forgiving on the drafting of the offence, and therefore trying to ensure that it works by not making the defences overly lenient. I am happy to be corrected, but both perspectives can be true. That is why the drafting is so bad. These issues will not just detain us here—she says, bitterly—but will create hours, days and weeks of legal arguments in the courts, which is very much to be avoided.

There is an opportunity in this legislation which I might explore later: that fossil fuel companies and other environmentally destructive actors could be prosecuted and convicted for locking on. For example, if a fracking company attaches a drilling rig to land, that potentially causes serious disruption to two or more individuals. It could leak or cause earthquakes; it could contribute to climate change, or two people might have wanted to walk through that field but now there is a rig in the way. Local people could be seriously inconvenienced by having to protest against the fracking rig, rather than pursuing their hobbies such as birdwatching.

The Government probably do not mean to criminalise fracking and other oil and gas extraction, but this is a logical consequence of such broadly drafted offences. I rather suspect that people such as those at Greenpeace or the Good Law Project might enjoy some time in court with private prosecutions of that kind. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to my Amendments 11, 30, 34, 41, 57 and 63. That may seem a bit of a mouthful but they are all in exactly the same terms. They refer to the reasonable excuse defence in Clauses 1, 3, 4, 6 and 7. Perhaps I should preface my remarks, particularly in the light of the comments made by the noble Baroness, Lady Jones of Moulsecoomb, by saying that I very much subscribe to the view that these measures are not needed at all. These are laws we do not need and they may cause confusion, but I have to take the Bill as it is. I am making my remarks with reference to the Bill as we find it, not as I would like it to be.

The Constitution Committee examined the phrase “reasonable excuse” and its implications, and said that it is

“constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover”.

There are two points in particular: first, it invites argument over whether certain, but not other, political motivations might constitute an excuse—how serious they are and their consequences, and so forth; secondly, and perhaps even more important, is whether the defence of reasonable excuse should be available at all in cases where serious disruption has been caused. This is exactly the other side of the argument that the noble Baroness put forward a moment ago. The committee’s recommendation was that unless a precise definition of reasonable excuse is provided, the defence should be removed from Clauses 1, 3, 4 and 7 altogether.

The point is really this: if the wording remains in the Bill as it is, it opens the door to arguments that bodies such as Extinction Rebellion and Just Stop Oil use to justify their actions. I recall the lady who was sitting up on a gantry when she was interviewed on television. With tears in her eyes, she said, “I know I’m causing terrible disruption to many people”—you could see all the cars stuck behind the police cordon—“but I’ve got no alternative. Look at the serious disruption that climate change is giving rise to; that’s my case. We’ve got to do something about it, so I don’t mind how much disruption I cause to however many people because I’ve got to get that message across.” The problem with the reasonable excuse defence is that it opens up that kind of argument.

The committee’s recommendation was, as I say, that unless a precise definition is provided it should be removed. My amendments propose that the question

“is to be determined with reference to the immediate interests or intentions of the individual, not any public interest which that person may seek to invoke”.

The immediate interest point would cover the case of the journalist Charlotte Lynch, who was arrested by the police. In her position, she could obviously say that as a journalist she was doing her job. That would undoubtedly be a reasonable excuse if she was having to defend a charge in this situation, and one could think of many other examples, so the opening words of my amendment are designed to deal with people of that kind. But they are intended to meet the very point on which the noble Baroness, Lady Jones, focused on so clearly: the position of protesters who are protesting because of climate change, for example, or other big public interests that people feel it necessary to protest about.

There are various problems with leaving the words as they are. The offences described in Clauses 1 and 6 are to be tried summarily before magistrates. I am conscious that the noble Lord, Lord Ponsonby, is here with his experience but I suggest that leaving it to magistrates to decide whether a particular public interest excuse is reasonable, without any guidance from Parliament, is not satisfactory. There is a risk of inconsistent decisions between one bench of magistrates and another but there is another problem, too. These arguments, if they are to be raised in a magistrates’ court, may take up a great deal of time. I have heard at second hand of a case where one of these issues was raised in a magistrates’ court and it took hours and hours as people deployed their arguments. The magistrates’ courts are not equipped for that kind of interference in their ordinary business, so one has to have regard to the consequences of leaving it to them to decide issues of this kind. That important factor needs to be borne in mind.

[Lord Beith (LD)]

Could the noble and learned Lord explain whether he thinks that phrasing the clause in this way dispenses with the proportionality issue, which was so important in the Supreme Court judgment in the Colston statue case?

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord because I am coming on to deal with exactly that. Indeed, it leads me into the next paragraph in my notes. I am just making the point that one has to consider the practical consequences for prosecutors and the police of leaving this expression as wide as it is and without qualification of some kind. Of course, I am pointing to a particular qualification that needs to be made.

The Supreme Court, in a well-known case called Ziegler in 2021, held that protesters had been rightly acquitted of obstructing a highway when protesting about an armament fair. That is not an easy judgment to read or understand, not helped by the fact that there were two dissents in a court of five, but it has been thought to support the view that invoking the public interest defence in that context is acceptable. However, a series of decisions in the Court of Appeal have narrowed the window that Ziegler left open. The point is that we are dealing now, in the offences that we are considering in the Bill, with offences that require proof of serious disruption. The Court of Appeal’s point is that that changes the balance between what is proportionate and what is not, which is at the heart of this issue. The proof of serious disruption was not a necessary element of the offence of obstructing the highway considered in Ziegler, but it is important to notice that in our offences it is a vital and essential element.

The Colston case was the subject of the most recent Court of Appeal decision, which is Attorney-General’s reference no. 1 of 2022. The court was asked to rule on what principles judges should apply when determining whether the convention rights are engaged by a potential conviction for acts of damage during a protest, and when the issue of proportionality should be withdrawn from the jury. The court held that the convention did not provide protection to those who cause criminal damage during a protest that is violent, not peaceful. That was the Colston case.

However, it went on to say that a conviction for causing significant damage to property, even if inflicted in a way that could be called peaceful, could not be held to be disproportionate either. The prosecution in the Colston case was correct, both because the toppling of the statue in that case was violent and, as a separate issue, because the damage to the statue was significant. The words “serious disruption”, which appear in these offences, seem to fall into the same category. In other words, a person who engages in criminal conduct that causes serious disruption cannot take advantage of this defence.

It has been pointed out that a case raising this issue is expected to be heard by the Supreme Court before Christmas. I think there are problems with that. The judgment is not likely to be given until well into next year because the court takes a considerable time to consider all the issues. I think one would be fortunate if the judgment were out before the early summer. This is a problem that needs to be solved now, and I will come back to the question of the magistrates’ court and the problems that could arise there.

I stress again that the offences we are dealing with here all require proof of serious disruption. That is why the reasonable grounds defence should be removed altogether or qualified in the way I am suggesting, to confine it to circumstances that affect the position of the individual on the ground at the time he or she is causing the disruption. That qualification would be welcome, and undoubtedly useful, in many cases. Without it, I suggest that the whole defence be removed.

[Lord Judge (CB)]

My Lords, I am very sorry that I was not able to speak at Second Reading. I shall be very brief. I share the various arguments presented to the Committee about the vagueness of this legislation and the ineptitude of the drafting that leaves so many criminal offences so vaguely described. I support the basic premise of the noble and learned Lord, Lord Hope. We are about to legislate in a situation where there is a decision of the Supreme Court, with two dissenting judgments out of five; further decisions of the Court of Appeal are rowing back from the majority decision in Ziegler; we have the Colston decision, which will have to be reconciled with Ziegler; and we know that the Supreme Court is looking at the issue again.

What on earth are we supposed to do when we have the opportunity to make it clear what the answer is to these problems, revealed by the number of cases to which I have referred? We have the opportunity, and we should take it. We really should not just say, “You carry on sorting it out”. How many more times does the issue have to be examined in higher courts? If the issues are being examined in magistrates’ courts, there will inevitably be references to cases stated and so on. If we do not accept the amendment of the noble and learned Lord, Lord Hope, or at least the thrust behind it, we are sending a slightly chaotic situation back to the courts when we could clear it up.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, this is an interesting group of amendments. I will come to the amendments of the noble and learned Lord, Lord Hope, but I will deal with my Amendment 42 first, because it deals with an important specific ask of the Government. I will then come on to the more general point about the reasonable excuse defence.

My Amendment 42, for which I am grateful for the support of the noble Lord, Lord Paddick, would insert a defence for a person who is present in a tunnel or is undertaking acts

“wholly or mainly in contemplation or furtherance of a trade dispute.”

The amendment probes situations where all or part of a person’s workplace is within a tunnel, such as the London Underground.

Currently, other clauses, such as Clause 6 on obstruction of transport works, include a reasonable excuse defence for people causing disruption as part of a trade dispute, and I think we all welcome the Government’s inclusion of that. But have they considered whether that defence needs to be replicated for the new offence of being present in a tunnel? What is covered in the definition of a “tunnel” under the Bill? Does it include the London Underground or the Channel Tunnel, for example? Under the Bill, the definition of a “tunnel” is simply

“an excavation that extends beneath land”.

So some clarification of that would be helpful, and I would be grateful for answers on my Amendment 42.

Aside from that amendment, we have had an interesting, almost philosophical, debate. The noble and learned Lord, Lord Hope, is right to say that you cannot just leave this to others to debate. There is a very real debate here: how far is protest justified by people who say, “My reasonable excuse is that there’s such a climate emergency and, if only people realised it, they would realise that we’re the people who are being sensible and reasonable”? This is a very difficult debate and discussion, but the noble and learned Lord, Lord Hope, has challenged Parliament to have it. The Government may need to think about this and come back on Report with something that seeks to explore the whole issue.

This example is not the same, for obvious reasons, but the Chartists would have been regarded in their time as unreasonable extremists. Many of the suffragettes were imprisoned and force-fed. You can say that this is different and we are in a different time, but you see the point that the noble and learned Lord, Lord Hope, is getting at: what is a reasonable protest, and how far should someone go? In other words, where is the balance in a protest that will inevitably cause some disruption? I have been on protests and demonstrations that have caused disruption. But where is the balance and where do you draw the line? We never debate or discuss this—

[Lord Hope of Craighead (CB)]

The crucial point that I was trying to make is that we are dealing here with serious disruption. I have been trying to get a definition of what that really means. These two points meet: you have to identify what you mean by “serious disruption”, and you reach a point where the proportionality tips against the person who is causing the disruption. That is what we need to get at and why the language in the Bill needs to be more precise to enable that to be determined.

[Lord Coaker (Lab)]

I could not agree more; the issue of proportionality is exactly right. But this is difficult. I have been on demonstrations that caused serious disruption that we regarded as perfectly reasonable, but I am not sure that everybody else would have thought they were perfectly reasonable.

So I support what the noble and learned Lord’s amendments seek to do, which is to get the Government to justify where they think that line should be and say—I am not a lawyer, but I often hear the lawyers here say this—that it should not be left to the courts to determine and try to guess what the Government’s view was and what Parliament was seeking to do. It is Parliament’s responsibility to try to define and clarify what the law seeks to achieve. The courts then interpret that, which is right in a democracy. But we abrogate our responsibility if we do not even seek to discuss this.

The noble and learned Lord, Lord Hope, is exactly right, but my question to him is: where does it tip? One person’s view of what is proportionate may be regarded by someone else as weak and not strong or determined enough to challenge the system. The system might need more challenge, not less, to bring about the change that is needed.

So the debate is necessary, but quite where that takes us and how you put forward an amendment, other than the interesting amendment of the noble and learned Lord, Lord Hope, is really important, as is how the Government respond to it. This important point should not be lost. It is almost a philosophical debate, but its practical implications for protest in our society are immense.

Speaking as an individual, I would put up with some disruption because I recognise the need for people to protest. When I drive into London and sometimes cannot get into Parliament, I remind myself that I have done similar things to people in other circumstances—

Public Order Bill

Lord Hope of Craighead Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I have to say that I am in two minds about the Bill. One must give credit to the Government for trying to find a solution to some of the most pressing public order issues that they face.

Climate change concerns us all, and there are many people who feel so strongly about it that they wish to join demonstrations to protest at what they see as a lack of action to deal with it. That is their right, as Articles 10 and 11 of the European Convention on Human Rights—that is, the right to freedom of assembly and the right to freedom of association and assembly—make clear. But some of the tactics now being used give rise to real concern as to whether what they are doing interferes too much with the rights of others to do as they wish. We have seen how members of the public are reacting to what is being done, which itself is a cause for concern.

The questions are: has the balance shifted too far? On the other hand, are the offences being created too broadly described? Are there sufficient safeguards against violations of the protesters’ convention rights?

Then there is the problem about abortion, which has just been mentioned: the intimidation that those who wish to obtain an abortion in a clinic or other suitable place are likely to face on their way in because of the increasingly vocal gatherings of those who object to the process. Of course, those who object to the process have the right to enjoy their rights under Articles 10 and 11 too, and the right to freedom of expression, but has the balance moved too far in their case, too? Clause 9, based on the concept of buffer zones within which such conduct is prohibited, could offer a solution, but we need to consider carefully whether the detail in Clause 9 is a proportionate response to the undoubted and serious problems that it seeks to address.

My conclusion is that the way the Government are seeking to deal with the issues in the Bill is open to serious objection and in some ways misconceived. The powerful response by the Joint Committee on Human Rights underlines this point. Its conclusion is that the Bill is an unacceptable threat to the fundamental right to engage in peaceful protest; that must surely be taken very seriously. This is not the occasion to go into detail but it is clear that many of the provisions in Part 1 are in need of amendment before they leave this House; and Part 2, about disruption prevention orders, may need to be removed altogether, as the committee argued. This is on the ground that, given the powers that the police already have—that is, the existing laws—these provisions are disproportionate and amount to an unjustified threat to the right to peaceful protest.

The fact is that we live in a country where we are free to do as we like unless it is prohibited by law and where the police, on whom we depend for preserving law and order, do their job largely by consent. These are freedoms that we interfere with at our peril. The Joint Committee has warned that the new stop and search powers in Clauses 10 and 11 risk exposing peaceful protesters and, indeed, other members of the public to intrusive encounters with the police without sufficient justification. Surely, we do not want to disturb the balance any further than we absolutely have to; nor, I think, do the police. Giving them powers that they do not really need and that are almost certainly wider than can reasonably be justified is not the way to go. Here too, getting the balance right when addressing these issues is so important.

I wonder whether it is sensible for the Government to legislate, as they seek to do in Part 1, by singling out locking on and tunnelling for special attention. I recognise the problems, but there is already a huge range of legislation that confers power on the police to control public protests and assemblies: causing criminal damage, obstructing a police officer, obstructing a highway, endangering road users and so on. These existing offences are defined by the purpose or effect of the activity rather than the method by which it is carried out. Directing attention to the method, as Part 1 does, rather than to its purpose or effect, may be good box office but it requires a high degree of precision if it is not to criminalise activities that have nothing to do with the protests.

There is another problem too, which has already been hinted at. We have to accept that the protesters will not go away. If you close off one method of protesting, they will soon find another that is just as—perhaps even more—damaging or disruptive and more difficult to police. The fact that the other method is not expressly proscribed will encourage them to resort to it until it too is proscribed. Surely it is better to concentrate on purpose and effect, as the existing laws do, when defining public order offences.

Well intentioned the Bill may be, but there are many defects in it. I do hope that the Government will listen very carefully in Committee and accept the corrections that will need to be made. As I suggested, it is a question of striking the right balance in the right place. That is what the public interest requires and what, in its present form, the Bill fails to do.

Queen’s Speech

Lord Hope of Craighead Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I will concentrate on two themes in the gracious Speech. One was introduced by the declaration:

“The continued success and integrity of the whole of the United Kingdom is of paramount importance”


to the Government. The other is to be found in a passage that states:

“Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”

I hope that the noble and learned Lord, Lord Judge, will forgive me for quoting the sentence in full.

A little more needs to be said on the first theme, beyond the reference in the gracious Speech to the undoubted need to support the Belfast/Good Friday agreement. While we can all agree on that, I fear the Government are entering into a very contentious area when they go on to say that their support for that agreement and its institutions will include

“legislation to address the legacy of the past.”

I regret the absence of any mention here of the need to respect the position of the devolved Administrations—that was a missed opportunity. Their co-operation was severely tested during the last Session by the passing of the internal market Act and the Subsidy Control Act, both without the legislative consent of either Cardiff or Holyrood. Greater care needs to be taken, in the interests of the success of the whole United Kingdom, to see that this does not happen again this time.

As for

“legislation to address the legacy of the past”,—[Official Report, 10/5/22; col. 3.]

the Constitution Committee, of which I am a member, referred in a report published in January called Respect and Co-operation: Building a Stronger Union for the 21st Century to the Northern Ireland legacy proposals that the Government published in July last year. They included ending all

“judicial activity in relation to Troubles-related conduct”.

The Government’s aim, which was no doubt well intentioned, was to obtain a broad consensus. However, they signally failed to do so. One of our witnesses, the leader of the SDLP, said that the Government

“had achieved the rare feat of uniting every political party and victims’ organisation in Northern Ireland against its proposals.”

As we said in paragraph 148 of our report, there was

“a clear lack of consent on that issue.”

The original plans for the total amnesty have been abandoned, and new proposals are included in the draft legacy and reconciliation Bill—matters on which the UK Government are free to legislate as they wish. However, the concept of consent is of great constitutional importance in Northern Ireland—as it is in Scotland and Wales, but particularly so in Northern Ireland. I hope the Minister can assure the House that the Government will consult further to achieve as much consensus as possible this time before they proceed with these new proposals.

I recognise that the Government consulted widely on their proposals to introduce a Bill of Rights, but I cannot help thinking that this is a Bill that we could well do without. The manifesto commitment owes its origin to this Government’s dislike of the Human Rights Act. One might say that it was an obsession, and obsessions are rarely a good start to anything. It all seemed so simple: “Let’s restore the balance of power between the legislature and the courts by getting rid of that Act and replacing it with something else that tells the courts what to do”. We must be grateful that the Government will remain a party to the European Convention on Human Rights and that the individual right of petition to Strasbourg, which it sets out, will remain unchanged, with all that that means. The proposals here are directed entirely to the position in domestic law.

However, the more you look at it, the more obvious it is that there is a serious risk that they will do more harm than good. It does not seem to have been appreciated, for example, that the usual way that convention rights are enforced in Scotland is not through the Human Rights Act but through the Scotland Act, which sets out the limits of the powers of the Scottish Parliament and the Scottish Government. This enables incompatibilities to be dealt with in a way which is not subject to the same procedural routes which the Government wish to change. Further, the proposals are likely to lead to an increase in human rights litigation in view of the uncertainties that they will create, to the disadvantage of a wide range of public authorities which will be drawn into the courts, and to an increased demand on the courts themselves.

By making it harder for individuals to obtain a domestic remedy, the proposals are bound to increase the number of petitions to Strasbourg, to each of which the Government will have to respond, irrespective of which public authority was involved. Further, there are some rather odd and quite unnecessary proposals, such as to enshrine in legislation the right to jury trial, a system based on the common law, which works perfectly well in England and Wales. Except in the case of the most serious crimes, there is no absolute right to a jury in Scotland, so why should that situation be changed?

I am sure that many of us will work very hard to improve the Bill when it reaches us but, given the uncertainties and extra expense that it will create and the absence of any compelling need for it, I really doubt that it should come here at all.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

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

[Lord Pannick (CB)]

My Lords, I am very happy to stand up for womanhood and motherhood, but this amendment is very puzzling indeed. What it would mean is that even if a person born male has lived as a woman for 20 years, even if they have undergone sex reassignment surgery, even if they have a gender recognition certificate, and even if they are assessed as posing no risk whatever to other women, the Home Office would be obliged either to place them in a men’s prison or put them in specially segregated facilities. The former option of putting them in a men’s prison would be a disaster; it would obviously be enormously dangerous to such a person. Placing them in specially segregated facilities would be demeaning; it would fail to recognise what legislation in this country has recognised for the last at least 15 years: that people who happen to be born in the wrong sex deserve our compassion and deserve recognition of their position.

I suggest to the House that these issues are far better addressed, as they are at the moment, by Home Office policy that considers the circumstances of the individual case, rather than by broad amendments of this nature, whatever the good faith of those who put them forward.

[Lord Hope of Craighead (CB)]

My Lords, I warmly support what my noble friend Lord Pannick has just said. It is a great mistake, certainly at this stage in our affairs, to attempt to legislate in this matter. It may be that the prison estate will be big enough in years to come so that one can segregate by gender reassignment in special prisons of their own, but we are nowhere near that at the moment and the proper way to deal with this is to rely on the discretion that exists at present.

It is quite striking if you look at the wording of the amendment—it makes no distinction between whether we are talking about male or female prisoners, but very different situations arise depending on which of these two characteristics you are considering. It makes no distinction for the time that the person may have lived in that new assignment. It makes no distinction, either, for the extent of the surgery and the appearance of the person over time as the reassignment process takes place.

It is very difficult for those of us who, I assume, have not faced this to appreciate the intense emotional problem that people who believe that they have been born into the wrong sex undergo. It is a very emotional matter, fighting against characteristics you have acquired that you do not believe belong to you. The way you deal with it is to believe that you are actually of the sex—of the gender, I should say—that you think you should have been. That involves not only reconstruction of the body but a mentality designed entirely to live the new life, which you believe is the one you should have been given. It strikes me as very cruel, if I may use that expression, to treat these people as if they had not reassigned themselves. It is not a choice. They are driven by the characteristics they acquired which forced them into their decision.

I make these points just to emphasise that we are dealing here with a very difficult problem. The offender requires as much consideration on the grounds of safety and emotional distress as the people around them in the prison in which they are placed. Legislation is not the way to go, certainly not at the moment. I personally have complete confidence in the way that the prison authorities are dealing with this very difficult problem at the moment.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I welcome this amendment and I commend the noble Lord, Lord Blencathra, in particular, for doggedly sticking with this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for organising the MoJ teach-in, which I found very interesting and useful. I learned a lot and I listened hard.

I thought this amendment was a nuanced and sensitive way of dealing with all the objections raised by the MoJ at that teach-in, so I am rather disappointed that the Government have not accepted the proposal from the noble Lord, Lord Blencathra, which is a bespoke amendment that protects women’s single-sex spaces while sympathetically and practically managing any challenges faced by transwomen prisoners.

The amendment might be a modest proposal—I think it is—but noble Lords may be interested to hear that it has created a huge amount of interest outside this place over the last couple of days. People on Twitter might look at #KeepPrisonsSingleSex. It has been trending for the last 36 hours. Do look because the messages on there are what I am talking about, rather than the fact that it is trending.

I want to read a few tweets that could maybe help us understand why this amendment matters. One woman said:

“I find it quite baffling that this is even up for discussion! How did we get to the point where we need a debate to include legislation to prevent something so damaging to women?”


Another said:

“Women in UK prisons must not be locked in with convicted male criminals. This is an appalling failure of the duty of care the state has for female prisoners. Female prison staff must not be forced to search male prisoners. Let’s hope the House of Lords shows sense.”


I would like to think the House of Lords would as well, but maybe not. The final one I want to read out says:

“I’ve been to prison and I’m telling you now that for some women it’s their only safe space, due to abuse on the outside. Allowing anyone who claims to feel like a woman to be put in that safe space is wrong! Women, criminal or not deserve to feel safe.”


I say hear, hear to that.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 13th December 2021 Lords Chamber

Moved by

[Lord Hope of Craighead]

60A: Clause 67, leave out Clause 67

[Lord Hope of Craighead (CB)]

My Lords, I am moving this amendment to enable the House to continue the discussion which took place in Committee with regard to what was then Clause 66: the new offence of causing serious injury by careless or inconsiderate driving. I should stress that we are dealing here with careless driving pure and simple, with no aggravating factors or other offence being committed—an act of carelessness or a moment of inattention which causes a serious injury.

My objection to the clause relates to the fact that among the penalties that a conviction for this offence will attract is a sentence of imprisonment: two years on indictment and one year if prosecuted summarily. There are also provisions for automatic—or, I should say, obligatory—disqualification and endorsement. I make no complaint about that, nor do I complain about the two-year sentence on indictment. However, I am concerned about the sentence of imprisonment in cases which do not deserve to go to jury trial and are taken summarily before magistrates, or before sheriffs in Scotland.

I recognise that as the law stands, causing death by careless or inconsiderate driving does attract a sentence of imprisonment. On the other hand, causing a very serious life-changing injury, where perhaps the injured party has survived only by the skill of the doctors, does not. I can well understand why the Government see this as a gap which needs to be filled. But the situations to which the wording of this clause will apply extend well beyond those where one can reasonably say that there is a gap in the present law that needs to be filled. The words “careless” and “serious injury” can embrace many situations where to send the careless driver to prison would be wholly disproportionate. That is my concern.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, of course I understand and to a certain extent accept that point; we have previously helpfully discussed it. What we try to do with the two-year maximum is find the appropriate level. One has to fit it between that six-month point and the five-year point for the reasons I have explained. Even if the noble Baroness does not accept the comparison with six years, it still obviously has to be below five years. The question is where we should put it. The central point is that maximum penalties are there for the worst imaginable case. The two years, therefore, is really for the worst imaginable case. I have sought to set out, in not too great length but clearly, why it is two years and, more importantly, what a maximum sentence means in this context and what the very limited circumstances are in which we would expect a maximum sentence to be imposed—not because the Government are telling the courts what to do but because, given the guidelines under which the courts already operate, it would be a very rare case to have a term of imprisonment or, certainly, a maximum term of two years. That is why I set it out earlier in the terms I did.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who have spoken in this short debate, and in particular to the Minister for his careful attention to the points that I have raised and the carefully worded assurances that he has given us in the past few minutes.

The worst imaginable case is the reason why I accept that there is a gap that needs to be looked at and filled, and this offence obviously addresses that gap. But one is faced with the mental element that the noble Baroness, Lady Randerson, and the noble Lord, Lord Marks of Henley-on-Thames, have drawn attention to. It is that which makes it very difficult to accept that, even for the middle layer, there should be a sentence of imprisonment at all, in comparison with the many offences where there is a distinct mental element and a deliberate intention to flout the law—to disregard it, shrug your shoulders and go ahead anyway. It is not that kind of offence, which is why it is so important to signal, as the Minister has done, that it is only for the most extreme cases that a sentence of imprisonment for this kind of offence would really be appropriate.

Obviously, we must listen and wait for the Sentencing Council to set out the scales, and no doubt it will do so with great care. But, for the time being, what the Minister has said offers some reassurance, and I am extremely grateful for that. For those reasons, I beg leave to withdraw the amendment.

Amendment 60A withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support this group of important amendments, which seek to bring some sort of equality into the Bill when dealing with the Gypsy, Roma and Traveller communities, which is significantly absent from the Bill as it stands.

On Friday, the most reverend Primate led a debate on the challenges to freedom of speech and the role of upholding freedom of speech. He said in his remarks that one of the threats to freedom of speech is the “dehumanisation” of those with whom we disagree:

“We must be alert to how our habits of communication can stifle our creative imagination—how they might make us see others as somehow less than fully human.”—[Official Report, 10/12/21; col. 2109.]


While this section of the Bill is not about freedom of speech, it is certainly about the loss of freedom to roam.

In Committee, we heard speeches from some quarters which made assumptions about the character and lawfulness of the Travelling community, without evidence being provided to substantiate the allegations. All the amendments in this group deal with Part 4 of the Bill, which seeks to demonise and terrorise the Travelling community. I support Amendment 55ZB and congratulate the noble Baroness, Lady Whitaker, on her contribution.

The Travelling community is often portrayed as being less than fully human. It is true that their way of life is very different from that of those in this Chamber, but they are human, and they have the right to a roof over their heads, to educate their children and to have access to healthcare. This can be achieved only when they have somewhere to stop with their caravans. The Minister has rightly said that the provision of sites is a local authority matter and dealt with through the planning process, but she is reluctant to ensure that local authorities step up and fulfil this role.

As a vice-president of the LGA, I receive a regular copy of the Local Government First periodical. In the latest edition, there are two articles on Gypsies and Travellers. The first is from Sarah Mann, the director of Friends, Families and Travellers, about countering inequalities. GRT communities are known to face some of the poorest life outcomes across multiple indicators among the UK population. FFT provides local government with training on cultural awareness to provide more inclusive services, and this has resulted in the provision of more transit and permanent sites in certain areas. The second article was from Boris Worrall, chief executive of Rooftop Housing Group, which provides high-quality accommodation solutions to the Travelling community. He writes that the evidence shows that

“where high-quality sites are provided for the … (GRT) communities, and managed effectively, there is a wealth of evidence about better outcomes for residents, positive community relations and the avoidance of taxpayer costs.”

There are solutions out there to what some sections of our community see as the problem of GRT. It is part of the role of government to promote these to the benefit of all. The draconian measures in this Bill are not the answer and are a sledgehammer to crack a nut. My friend Lord Avebury, had he been here, would have had much to say on this matter.

[Lord Hope of Craighead (CB)]

My Lords, there is a lot of force in what the noble Lord, Lord Pannick, said about reasonable excuse. There is a problem, however, in that one would not know that one had a reasonable excuse until one had been charged with the offence. The advantage of the amendment spoken to by the noble Baroness, Lady Whitaker, and others is that it achieves certainty and intercepts the risk of being brought to court to have one’s reasonable excuse determined. Although I tend to agree with what the noble Lord said, it comes too late in the process, and the safest and most secure way of dealing with it is to intercept the process at the beginning, which is exactly what the amendment in the name of the noble Baroness, Lady Whitaker, seeks to do.

[Lord Paddick (LD)]

My Lords, there are two problems here. Because of the behaviour of the lawless few, all Gypsy, Roma and Traveller communities are being stereotyped as troublemakers. The new law creates offences when people trespass on land with vehicles where, among other things,

“it is likely that significant damage or significant disruption would be caused”,

and, again, where

“significant distress … is likely to be caused”.

All GRT people are likely to be criminalised by these new offences because people’s prejudices will result in them anticipating damage, disruption or distress, despite no previous experience of the GRT people concerned, or any other evidence—just their own prejudice. The second problem is that there is no option for many GRT people other than to trespass on land because local authorities do not, and do not want to, provide authorised pitches. Imagine the reaction of motorists if there were no local car parks and double-yellow lines on every road? That is the equivalent of what GRT people face.

That is the reason for these amendments. In the absence of removing the whole of Part 4 from the Bill, we will vote with the noble Baroness, Lady Whitaker, should she divide the House. At the very least, the police should not be allowed to seize caravans when they are peoples’ homes and the statutory duty on local authorities to provide authorised sites should be reinstated. That is the purpose of my Amendments 55ZC and 55AA. These may be planning issues, but the clerks have ruled that these amendments are within scope.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Judge (CB)]

My Lords, we have not had time yet for all of us to read the report from the Secondary Legislation Scrutiny Committee or, for that matter, that of the Delegated Powers and Regulatory Reform Committee, whose paper is entitled Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. I have read that, but I did not get round to the first.

We have to support our committees—that is why we have them; they are cross party. This is a tiny amendment of significance. The amendment does not propose any interference with the power to address the problem of serious disruption. It is not intended to address that. The submission is that the way in which the legislation is drafted, in Clause 55(4) and Clause 56(6), is completely unnecessary to enable justice to be done in whichever way the Government think it is appropriate for justice to be done.

Secondly—this is a bit naughty of me—I think the provision reflects a growing constitutional wheeze, what I call the “blank cheque wheeze”. It is this: the Executive tell the legislature to please legislate, and the legislature legislates—and, when it legislates, the Executive then tell the legislature what the legislation means. That is a blank cheque that we are being asked to give in these clauses.

As to the words, I know that it is quite late at night and so I shall be short, but do any of us here not understand two simple English words—“severe disruption”? I mean, come on, even the lawyers among us cannot think of a lot of differences. “Severe”, “serious”—get out your thesaurus. They are simple English words, and the two words put together make a perfectly clear picture of what is being addressed and sought to be protected.

This is unnecessary and a wheeze. We really must not allow the Executive to start treating this way of legislating—called in more elegant terms tertiary legislation —by saying, “We’ll tell you what it means when we get around to it”. The Secretary of State has started to tell us what it means. The place where we should be told what it means, if it does not mean what it says—and I think that it does mean what it says—is in a definition clause within the primary legislation.

[Lord Hope of Craighead (CB)]

My Lords, I put my name to Amendment 308 in the name of my noble and learned friend Lord Judge and shall say a few words in support of what he has just said. It was quite clear from the reply by the Minister to the previous group that these words, “serious disruption”, are the key to the proportionality of the clauses that we are considering. They are absolutely central to the whole proportionality of the scheme. Of course, if something does not amount to a serious disruption, the police take no action; if it does amount to that, within the ordinary meaning of the word, the police have authority to do so.

I mention that because, while I support entirely what my noble and learned friend has just said, there is an element of risk here, which I think the noble Lord, Lord Rosser, hinted at in his comments in the last group. It is the risk of lowering the threshold. Why else is the power being taken? If it is not in the present Home Secretary’s mind to lower the threshold, the risk is there. It is for that reason that I suggest there is a risk here that should be avoided.

There is also the point about the clarity of the legislation. One element of the rule of law is that the law should be accessible, and the more you attempt to define words by regulation and not in primary legislation, the more inaccessible the true meaning of the words becomes. It is not a way to go down—it is unnecessary, as my noble and learned friend said—and I hope very much that the Government do not proceed with this scheme.

[Baroness Chakrabarti (Lab)]

The noble and learned Lord is exactly right about this constitutional problem, but there is a further point to be made. In this context, it is not just the usual problem of allegedly unclear legislation that is then going to be sorted out by regulation later, and the relationship between the Executive and the legislature not as it should be. It is also in danger of interfering with police operational independence. To be explicit about this, my fear is that the police will take whatever view they take of what this legislation means in certain circumstances and do their best—and if a Home Secretary of the day, even well into the future, thinks that the police are being too lenient towards protesters, or perhaps there is a commotion in the media, regulations will be used further to define what “serious” and “disruption” mean so as to mandate the police effectively to be more heavy-handed than the natural meaning of the words would suggest.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

Finally, Amendment 292T proposes that where somebody, A, kills another person, B, in the course of, or with the motive of, sexual gratification, if A intended the action that led to the death of B, that should be an offence that has a maximum sentence of life imprisonment. This is to ensure that the “rough sex” defence cannot be deployed. It means that where that does happen there is an offence, punishable up to life, available to the prosecutors to prosecute and for the jury to find the person guilty of. I would be very interested to hear the Government’s reaction to that. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I support Amendment 284 for all the reasons that the noble and learned Lord, Lord Falconer of Thoroton, has explained. However, I respectfully suggest to him that there is a slight mismatch between that amendment and Amendment 285. Amendment 284 is so broadly defined, for the reasons that have been very well expressed, that it would include the conduct that is described in Amendment 285. Indeed, if we look at the wording of Amendment 285, harassment is an essential element of that offence.

I raise the point because there is a difference between the penalties. The value of the kerb-crawling clause is that it introduces a possibility of disqualification, and I see the force of that, but the fine is only level 3, whereas the fine in Amendment 284 is level 5. If I was a prosecutor, having to decide which charge to bring, I would probably go for the offence in Amendment 284 and forget about the disqualification. I wonder whether, if the noble and learned Lord is thinking of bringing the matter back, he might try to amalgamate these two and perhaps put a subsection into Amendment 284 to cover the situation that if the harassment offence is conducted from a motorcar, in the way broadly described in Amendment 285, it would attract the additional penalty of disqualification. It would then be brought into Amendment 284’s sanctions, which are imprisonment, which might well be appropriate in a kerb-crawling offence, and also the level 5 fine. That is a refinement of drafting, but I am very much in favour of Amendment 284 as it stands, particularly in view of the broad way in which it is expressed.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer Green support for all these amendments. Some of my questions have just been answered by the noble and learned Lord, Lord Hope of Craighead, and his suggestion that some of the amendments be combined is positive, because retaining the opportunity to take away the right to a vehicle in an offence involving a vehicle is very useful.

I am aware of the time and the pressure to make progress, but it is a great pity that we are discussing such an important group of amendments, all put forward by the noble and learned Lord, Lord Falconer of Thoroton, so late at night and in this rather rushed way. I will just draw some comparisons and links between them.

One thing to highlight is how much these amendments come from community campaigning from the grass roots up. I imagine that the campaign for the offence of harassment draws, in large part, from the group called Our Streets Now, set up by sisters Gemma and Maya Tutton, aged 16 and 22, who are working with the charity Plan International UK. Their hashtag is #CrimeNotCompliment. I suspect that the noble and learned Lord might have drawn on their ready-made Bill and I note that this has had strong cross-party support in the other place. I draw on the words of the women’s rights campaigner Nimco Ali, who said it is “bizarre” that street sexual harassment is still legal. Littering and smoking are banned, but this kind of behaviour is not.

On Amendment 285, I briefly highlight that Generation Rent, another grass-roots campaign group, has been pushing for action here. A report by Shelter in January found that, between March and September 2020, around 30,000 women had been offered housing in exchange for sex. This is a function of the extreme dysfunction of our current housing system.

I have to address Amendment 292M personally because, as I suspect is the case for many people, particularly women, it is something I have personally experienced. I was 11 years old in another country, out in the centre of Sydney on my own, when I was subjected to this offence. I was taught, as lots of young girls were then and probably still are now, to laugh, turn around and walk away. But that I can still vividly remember that street scene shows that it had an impact on me. When I look back now, I felt as an 11 year-old that this was a threat to my right to be on the streets. I did not tell my mother, because I was worried that she would think I should not be allowed out on my own to exercise the freedom that I wanted and continued to exercise. It is crucial that we see a change in attitude here and a review is a good way to address that.

The noble and learned Lord, Lord Falconer, has covered Amendment 292T very well, but we must note that Femicide Census, campaigning on this and broader issues, reports no sign of a reduction in the rate of femicide. That study covered a 10-year span from 2009 to 2018. We are not making progress on this, but we need to. I hope the Government will go away and look at this important group of amendments very seriously, and come back to us with proposals covering—I like to be an optimist—all of them.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I like many elements of the proposal from the noble Earl, Lord Attlee. We all know that the youth justice system, in theory if not in practice, is focused on diverting young people from criminal justice towards a better life. At 18 years of age, however, this sort of falls off a cliff as young adults get dropped into the mainstream criminal justice system and are left to fend for themselves. This leaves a huge population of young adults stuck in the adult prison system and missing out on essential learning and the foundations for developing work, family and social lives. These young people are also often illiterate.

Those important years of young adulthood—when one is no longer a child but lacks experience and wisdom—are lost in prison, and can never be retrieved. I like the aspect of this amendment, therefore, that would create a structured system of personal development and rehabilitation for those too old for young offender institutions but too young to be written off by society as lifelong criminals. There are issues about the tuition they would be given, because many of them might have problems such as autism or dyspraxia: they would need specialist help. That they would, however, be leaving better informed and educated than they went in is a positive for them as individuals and for society.

[Lord Hope of Craighead (CB)]

My Lords, I have some sympathy for the noble Earl’s amendment because of two experiences of mine. First, I had to undergo 10 weeks of basic compliance training when I did my National Service. It had many of the elements listed here. Hope for the future was there. Certainly, a lot of attention was paid to dress and bearing, teamwork, first aid training, conduct and anger management, fieldcraft and so on. I underwent that for 10 weeks as a recruit. Later in my national service, having become a commissioned officer, I was responsible for training recruits, and I noticed a remarkable difference in their behaviour and appearance between the beginning and the end of the 10 weeks. That impressed on me the value of the training that the Army was then able to provide.

At a later stage in my life, when I was prosecuting criminals, usually in Glasgow High Court, a lot of those who were being prosecuted I could see in my mind’s eye as people who might have been among my platoons of people undergoing training. My great regret was that we had not been able to get hold of them before the gang fights took place that led them to being prosecuted and ultimately going to prison. There is a lot of force in what the noble Earl has suggested. In those days—I am talking about my national service days—there was an enormous force available within the Army to conduct all these procedures. This is not easily managed. You are required to train the trainers and you must have the facilities. However, the philosophy and thinking behind the noble Earl’s amendment has a great deal to recommend it. He is talking about people who have already been convicted, but it would be lovely if one could intercept them before they got into the criminal system in the beginning. We cannot do that but, at least if they have been convicted, we can do something to prevent reoffending, which is what I think his amendment is driving at.

[Earl Attlee (Con)]

My Lords, perhaps I may respond to what noble Lords have said. The noble Baroness, Lady Jones of Moulsecoomb, mentioned young offender institutions. When I was getting educated by Frances Crook, I asked her, “How often do inmates at a YOI get taken out on camp?” She said to me, “John, you should ask how often they are taken out of their cells.”

In response to the noble and learned Lord, Lord Hope of Craighead, I am not proposing conscription or a national service-type solution. However, the points that he makes are absolutely what is informing my thinking. He made a valid point about the need for instructors and I am not proposing the use of the military to provide that function. Prison officers ought to be taking up that role and I envisage, among other things, youngsters who trained as Outward Bound instructors who cannot necessarily get particularly well-paid employment then training as prison officers and being double-hatted. There are a lot of things that we could do if we wanted to do them.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, I ask the Committee to forgive me for using legal language. Some years ago, I had a case in Newport. It was a murder trial in which the victim was profoundly deaf, the defendant was profoundly deaf and four or five of the witnesses were profoundly deaf. This trial proceeded with three sign language interpreters always in the courtroom: one for the defendant, one for the witness and one behind the judge, positioned so that everybody, including the many profoundly deaf people in the public gallery, could see what was happening.

When I first looked at this provision, I thought, like everyone else would, that surely a person who is profoundly deaf should be entitled to carry out their public duty. But the practicalities of it make that an impossible idea. For a deaf juror, there has to be a succession of people interpreting what is going on in the court in sign language. First of all, that is an immense burden on him—he is different from everyone else; and, secondly, while what is said in the court can be heard by everyone else, we do not know whether the person doing the signing gets it right. Nobody can really tell if that is the case, unless, as in my case, you have someone familiar with sign language in the box with the defendant.

How can we be sure that that juror understands the nuances of a summing-up, in which the judge sets out the law that the jury is to apply? Can it be the case that some other person who knows sign language checks that the proper interpretation is being made of what may be very technical language? As I learned, the sign language interpreter is not translating word for word but is conveying ideas. During that case I also discovered that sign language interpreters and witnesses who give their evidence by signing are quicker than people using ordinary speech. It is not a slower procedure, rather it actually speeds things up; the rest of the court have to hold the sign language interpreters back.

However, in the jury room, there is no way in which a profoundly deaf person can follow the arguments being made—passionate and otherwise: nobody can be sure that every nuance of what the other jurors are saying is being transmitted, and nobody can be sure that an interruption or question from a profoundly deaf person is being accurately translated and represents his thoughts.

I take the argument of principle that the noble and learned Lord, Lord Judge, put forward, but from a practical point of view, and from my experience of that trial, it is impossible for a fair trial to take place.

[Lord Hope of Craighead (CB)]

My Lords, I do not think I can add very much to the points that have already been made on the difficulties which this proposal is likely to give rise to, except to say that one has to remember that hearings in criminal trials take a very long time. I do not know whether we, who have never had to be instructed in sign language, are able to tell whether a deaf juror can maintain concentration by that method throughout the entire day that the trial goes on, and indeed whether the interpreter can conduct that process throughout the entire day without relief. Maybe you would have to have another interpreter to come and take over after a reasonable interval, as you often had to do with shorthand writers in the days when they were used.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I do not wish to be taken as suggesting that what works well in Scotland should necessarily be applied in England and Wales, but I think I am right in saying that there has been some attempt in Scotland to allow juries to be remote. The problem one has is that a judge cannot be in two places at once. I think it was thought more appropriate that the judge should be close to the place where the evidence was being taken, with the juries remote in some other room because of the need for social distancing and so on. My point is simply this: I suggest once again, with great respect, that the Minister should find out what has been happening in Scotland and what the experience has been. They may have decided, for the reasons given by the noble Lord, Lord Pannick, that it should not be continued. I simply do not know, but it is worth exploring to find out exactly what the position is.

[Lord Judge (CB)]

My Lords, despite Covid—I know it is not over yet, but despite the 18 months we have had—I have not heard it suggested that one solution to the problems that the courts face is that juries should act remotely. We have trial by judge and jury. I agree with what the noble Lord, Lord Pannick, said, but I want to be just a bit more down to the realities of it. What happens in court when the jury is unhappy with itself or with some of its members? The judge has a most delicate task to perform. On my old circuit—I am sorry to say that the Midlands circuit has this—one juror smelled; he stank, and the jury were extremely unhappy about it. Can all that be done remotely, when the judge is responsible for looking after the interests and needs of the jury as a whole? Do we send messages down the line? How is it accommodated? It requires huge tact, skill and, I think, the personal touch.

My other concern about this provision was touched on by the noble Lord, Lord Pannick—it is the usual one, I am afraid; you have all heard me talk about it. Why should we give these huge powers when we do not need to give them?

--- Later in debate ---

The last thing I have to say is that I, too, do not like general powers taken without a very good reason. There are too many examples of this Government doing things they should not do, without the powers. Give them the powers and we have no idea what they might do. So, as far as I am concerned, the fewer powers they have, the better protected we are.

[Lord Hope of Craighead (CB)]

My Lords, there is a great deal to be said for the need for justice to be done, as the noble Lord has been saying, but there is another side to the coin, which is a trial within a reasonable time. That factor has been exercising the minds of those who have been trying to progress trials through the desperately difficult situation created by the Covid epidemic. I hope those times have passed but, in the defence of those who have been setting out remote proceedings, they have been doing so under great pressure. People have been languishing in custody for far longer than they should have been, awaiting trial, and that factor has to be taken into account in deciding what is the right thing to do. The noble Lord is absolutely right, of course, that the worst option is the one they were driven to—but they were driven to it for very good reasons.

Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

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

[Lord Hope of Craighead (CB)]

My Lords, I support the principle behind the amendments but will make two short points to elaborate on what has already been said. First, I support what the noble Lord, Lord Carlile, said about balance. This has been referred to as a common-law duty, but the common law does not strike hard edges in such matters; it leaves room for balance to take account of particular circumstances.

At one stage in my career, when I was a senior judge in Scotland, I needed to know the state of health of one of my judges, who I knew was terminally ill with cancer. I was able to persuade his doctor, his skilled adviser, to let me know the truth when the judge himself was not prepared to do that. I felt that was the right thing to do; he thought it was the right thing to do; and it was an illustration of balance. The information remained entirely confidential between ourselves, but I had to take a decision as to the extent to which I could trust that judge to continue to sit in open court. The advice I received was very welcome: I was able to allow him to sit in certain conditions, in the light of the information I was given. I give that as an illustration of the way in which balance can operate in practical situations.

The other point to which I want to draw attention is the difference between Amendments 22 and 48. On the one hand, Amendment 22 states simply that

“no information may be shared … which breaches”

the duty set out in the General Medical Council ethical guidance on confidentiality. That is a simple formula that merely requires looking at the way the guidance is expressed; no doubt, with the balances that are built into the guidance. On the other hand, Amendment 48 says that regulations

“must not require the release of personal health information if a doctor regards that release as a breach”

of the duty of confidentiality.

I rather wonder whether that would be the right way to go: to leave it up to the decision of a doctor without further consideration. With great respect to the medical profession, that may be taking a little bit of a risk, because there are situations where a doctor may feel under pressure and that would not be the right thing to do. I think the amendment would be strengthened by taking out the reference to the doctor and just laying it down as a matter of proper structure that the regulations should not require the duty of confidentiality, as set out in the guidance, to be breached, leaving individual doctors’ decisions out of it.

[Lord Kakkar (CB)]

My Lords, I support the principles of the amendments and declare my interest as a registered medical practitioner.

The debate in Committee has been most interesting in this regard, because it raises a delicate and deeply sensitive issue for any practising clinician—any practising healthcare professional—with the suggestion that something that is considered absolutely sacrosanct, the duty of confidentiality, may be in some way undermined.

That is, of course, not to neglect or fail to understand the fact that there are clear circumstances provided in the context of well-recognised and frequently applied professional guidance in which confidentiality may indeed be breached. But there is a suggestion that the way the Bill is drafted, there may be a deeply undermining impact on a very important principle, one that is so well recognised that it is protected in both data protection legislation and, as we have heard, common law. I wonder whether the Minister can explain why it is so important to achieve what are important objectives in the Bill that we need to undermine the common-law effect of such an important principle—confidentiality of medical information—and why they need to be promoted in the way proposed in the Bill. Have Her Majesty’s Government considered other ways to achieve their important objectives without creating this deep anxiety and uncertainty, because the full implications are clearly not well understood by the regulator or by professionals more generally, and which, we must therefore all feel, has the potential to be attended by consequences that could be deeply unhelpful to the nature and solidity of the doctor-patient relationship?