Daphne Caruana Galizia
Lord Lester of Herne Hill Excerpts(7 years, 2 months ago)
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Lord Lester of Herne Hill (LD)
My Lords, Malta is one of four countries, including the UK, whose system is based on the common law. It is also party to the European Convention on Human Rights. This extraordinary, courageous and investigative journalist wrote articles accusing the Maltese Prime Minister and the leader of the opposition of abuses of power. In those circumstances, will the Government please remind Malta of its obligations under the European Convention on Human Rights to hold a truly independent and truly effective investigation?
Baroness Williams of Trafford
My Lords, I hope an effective investigation takes place—we will encourage that to happen. The noble Lord’s point about journalists being free to express their views on what they perceive as wrongdoing in the country should absolutely be preserved. The state may not like it, but we welcome the preservation of free speech.
Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017
Lord Lester of Herne Hill Excerpts(7 years, 10 months ago)
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Lord Lester of Herne Hill (LD)
My Lords, nothing that I am about to say should be interpreted as anything other than strong support for the regulations, but I think some history is important. In 1970 Barbara Castle introduced an Equal Pay Act that was virtually useless. In 1974 I left the Bar to work for a Labour Government, with Roy Jenkins, to pioneer sex and race discrimination legislation. We were forbidden to do anything about the Equal Pay Act, which in any case was to be brought in within five years of 1970. So in 1975 a virtually useless Equal Pay Act from a Labour Government was brought into force. What then happened was that it was challenged under EU law by the EU Commission, as a result of which it became necessary in Margaret Thatcher’s time to amend the useless Equal Pay Act in order to deal with different work of equal value. I do not think any noble Lords in the Committee are old enough to remember this, but there was a drunken Minister in that Government at the time who introduced the regulations while barely able to speak. When the regulations came in, they were tortuous and virtually unenforceable.
In 2010 we in the Liberal Democrats supported Labour in getting the Equality Act 2010 on to the statute book. Again, we tried to do something about the tortuous and unenforceable equal pay legislation, and the best that we could do—the best that Harriet Harman could do—was something along the lines of these regulations today. The idea was that, at the very least, transparency might be able to assist in tackling the gender pay gap. That was the idea, and of course we support it; it was the idea of the coalition Government, and it is the idea now.
I am sorry to say, as someone married to a vegetarian, that the problem is that there is no beef. The problem is that you can have all the transparency you like but, unless something is done to enforce the law and tackle discriminatory patterns in employment, promotion, recruitment and pay, women will continue to suffer from unequal pay for work of equal value. If Members do not agree with that, they have only to read the admirable gender pay gap information regulations impact assessment from 2017—I think there is no separate impact assessment for these regulations—which explains why mere voluntarism will not work. It explains how they tried to persuade employers of a voluntary approach but it failed and they tried to explain that they hope that these regulations or the other ones that we have already approved will compel action where required.
I promise noble Lords that they will not. How do I know that? I have had four or five decades of experience in trying to tackle patterns of discrimination. We gave the Equality and Human Rights Commission wide powers for strategic enforcement. Those powers were stronger than those given to the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. However, those powers have not been used. It is all very well for the Equality and Human Rights Commission, as the noble Baroness, Lady Gale, has said, to call for an action plan, but what is actually needed is an action plan by the Equality and Human Rights Commission, which was set up with ample powers that it does not use. I am not saying this behind the back of the commission. David Isaac, its admirable chairman, knows my views and I think he agrees with them.
I remember, as part of the ancient history I am trying to summarise, that there was a wonderful businessman called Oscar Hahn. He was, I think, the head of the Midlands Employers Federation. In those days we were trying to persuade employers and trade unions that there should be legislation to tackle these problems. Oscar Hahn made a wonderful speech in which he said something like: “Archbishop William Temple said: ‘Whenever I travel on the Underground, I always intend to buy a ticket but the fact that there is a ticket collector at the end of the line just clinches it’. In the same way legislation and its enforcement just clinches the good intentions of employers and trade unions”. I think that is right.
We are dealing today, rightly, with gender equality and with the gender pay gap. The noble Baroness, Lady McGregor-Smith—a Conservative Member of this House—recently produced a devastating review that deals not with gender but ethnicity. She has called it, The Time For Talking Is Over. Now Is The Time To Act. Although today we are dealing with gender not ethnicity, I urge Members of this House, and especially the Government, to take very seriously what she says. She says:
“The time for talking is over”.
I agree. She says: “The reward is huge”. I agree. She says:
“Daylight is the best disinfectant”.
I agree, provided that there is some enforcement. She says:
“We need to stop hiding behind the mantle of ‘unconscious bias’”.
I agree, and that applies to gender and race. She says:
“The public sector must use its purchasing power to drive change”.
Again, I agree. She then explains why she has been trying to persuade people to take voluntary action but has found that it is not good enough. She concludes that legislative measures are necessary. The Government’s response to her report, as I understand it, has been to give voluntarism further time in dealing with ethnicity.
I am now 80 years old and I have been campaigning for race equality since 1964. I have to say to the Committee that voluntarism, as the gender pay gap illustrates, will not succeed. Therefore, even if the Government will not act, even if Parliament will not act, I very much hope that the Equality and Human Rights Commission will use its resources for strategic law enforcement so that the regulations we are about to approve will be given bite by the enforcement agency. I hope that what I have just said will not seem controversial.
Baroness Williams of Trafford
I thank both noble Lords for their thoughtful contributions. I think there is broad support for what we are bringing forward but I shall answer some of the specific questions the noble Lords asked.
The first question from the noble Baroness, Lady Gale, was about why the number of employees was not lower than 250. We estimate that the obligations for authorities with 250 or more employees will affect more than 3.8 million employees in the public sector, and that means they will be covered by the new gender pay gap reporting requirements. Indeed, the combined coverage of these regulations and the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 will be over 15 million employees in 9,000 organisations, representing nearly half the total workforce. In addition, public bodies with more than 150 employees are already required to report on the diversity of their workforce and are encouraged to publish gender pay gap information.
We are keen in the first instance to place the same requirements of gender pay reporting across all employers to ensure consistency and comparability, so we have started in the public sector with that 250 threshold, which matches the threshold in Section 78 of the Equality Act. However, we will keep the threshold under review, and I think that review period will be reviewed by the Minister for Women and Equalities five years after commencement. Although this is the formal point for reviewing the new obligations, we will be closely monitoring compliance on a more regular basis to ensure that the measures are effective and working properly. With regard to what the response was to the public consultation about the proposed scope, the majority agreed that gender pay gap obligations should apply to authorities with 250 or more employees.
The noble Baroness asked whether the reporting requirements were too narrow. The regulations do not require mandatory equality objectives connected to gender pay gap data or, indeed, action plans. However, all employers will be strongly encouraged to publish information on how they intend to tackle the gender pay gap in their organisations. Many public bodies have actually indicated that they are keen to publish that narrative alongside their gender pay gap calculations, so that they can provide more context for any gender pay differences and highlight work to reduce any gaps.
Transparency may not be a silver bullet, as the noble Lord said, but it will incentivise employers to analyse the drivers behind their gender pay gap and explore the extent to which their own policies and practices may be contributing to it. The regulations that will apply to the public sector will not include an explicit requirement for a senior official to sign a statement or authenticate an organisation’s gender pay gap, but this is in line with the existing obligations under the specific duties regulations.
The noble Baroness asked what assessment has been made of the effect of tribunal fees for people with protected characteristics. The review of the employment tribunal fees, published on 31 January this year, confirms that the objectives have been broadly met and that the current scheme is generally working effectively and operating lawfully. However, that does not mean there is no room for improvement. In particular, the fall in claims and the evidence that some people have found fees off-putting have persuaded us that some action is necessary, so we launched a consultation on 31 January regarding the proposal to widen the support available to people under the help with fees scheme. This would help people with low incomes and is expected to particularly benefit women, disabled people and people from black and minority ethnic backgrounds, who figure disproportionately among those in low-income groups.
The noble Baroness also asked: will the Government be publishing league tables to name and shame employers? The public will be able to search the government website to check whether employers in scope have complied with the regulations and compare them with other employers in the same sector. We will consider the most effective way to present the published information in discussion with a wide range of stakeholders but, as I am sure the noble Baroness and the noble Lord know, the press soon get hold of such figures, so we can probably rely on them to highlight the success and failure stories.
Lord Lester of Herne Hill
I hope that we can also rely on the Equality and Human Rights Commission, which is funded for this purpose. I forgot to mention the issue of access to tribunals. It is my view as a lawyer that it is unlawful and an obstruction of justice to do what has been done to the employment tribunal fees, because they deter people with discrimination cases. I bet that if it goes to the European Court of Human Rights it will declare it to be incompatible, so I am glad that the Government are moving on that.
Baroness Williams of Trafford
I thank the noble Lord for that and will come to the EHRC shortly to give a bit more detail.
The noble Baroness also asked why the Government have rejected the recommendation from the Women and Equalities Select Committee to reduce the gender pay gap. We appreciate and recognise the important work that the committee does on this issue, and we carefully considered its recommendations. The report makes a number of recommendations for the Government, several of which have already been actioned. For example, the right to request flexible working already allows those working fewer than full-time hours to request the opportunity to work more. Many of the recommendations made by the Select Committee would involve significant cost to businesses and we are keen not to place too heavy a burden on employers at this time.
We crossed into the equal pay realm. I thought I might make the point at this juncture that pay discrimination and the size of an employer’s gender pay gap are two quite different things, but I am sure that the noble Lord knows that, given his background.
The noble Baroness talked about pregnancy and maternity discrimination. That is unlawful as well as unacceptable and has no place in today’s society. The Government are working with a range of partners, including the EHRC and ACAS to promote opportunities for women, including pregnant women and new mothers. That will ensure that female talent is recognised and rewarded, and make more employers aware of their legal obligations.
I turn to the EHRC’s failure to ensure compliance. The EHRC takes a proportionate approach to enforcement, resolving many matters via pre-enforcement work and using its formal enforcement powers when absolutely necessary. It also takes a strategic approach to enforcement, focusing on those issues where it can have an impact on systemic, persistent and/or pervasive inequalities. Many less strategic cases are resolved through pre-enforcement work, involving discussions with organisations to encourage them to meet their obligations.
The noble Lord, Lord Lester, may draw some comfort from the fact that when the Women and Equalities Select Committee examined the EHRC’s chair and CEO in January, it asked searching questions about why its enforcement and compliance work, potentially involving legal interventions, seemed so limited. The EHRC’s chair, David Isaac, who the noble Lord mentioned, agreed that putting more resource into enforcement and compliance is a priority for him. Let us see what progress it makes in the coming year.
Finally, the noble Lord mentioned the Ruby McGregor-Smith review. It is an industry-led review, so we are going into a slightly different realm, but I shall not split hairs about that. The Government believe that non-legislative solutions are the right approach for now, but we will monitor progress and stand ready to act if sufficient progress is not delivered.
I am sure that noble Lords will remember this time last year, when the number of women on boards was a push for the Government and we tried to do it in a non-legislative way. That yielded very good results, so we always try the non-legislative way first before taking action, but we will always take action if we need to.
I hope that noble Lords are satisfied with those responses and thank them for taking part in this debate.
Policing and Crime Bill
Lord Lester of Herne Hill ExcerptsWednesday 18th January 2017
(7 years, 11 months ago)
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Lord Lester of Herne Hill (LD)
When I was young at the Bar there used to be a judge whose concurring judgments were commendably brief—he would simply say, “I agree”. I can say that about the speech of the noble Lord, Lord Pannick—I agree with him—and would add a few words. I declare an interest because I have given evidence in the consultation on why Section 40 is, in my view, arbitrary, discriminatory and contrary to freedom of speech and should not be brought into force. I have not given evidence on the other question in the consultation to which the noble Lord, Lord Pannick, referred, upon which many views have been expressed. I agree with what the noble Lord said about that.
As I have said again and again in debates in this House, Parliament has not shown itself to be fair minded in the way it amended two Bills in order to create a scheme to bully the newspapers into entering a regulatory framework other than the one now being admirably well conducted by Lord Justice Moses—IPSO. Contrary to what the noble Baroness, Lady O’Neill, has said, we now have an effective system of voluntary press regulation and the state and politicians ought to give it breathing space. I wish to make that clear.
When I was young I began believing in the philosophy of John Stuart Mill. That is why I am a Liberal. I remain a Liberal today, and that is why I am sympathetic to the Government’s position.
Baroness Williams of Trafford
My Lords, I shall respond first to the point made by the noble Lord, Lord Pannick. He is right to assert that Sir Brian Leveson will be consulted formally in due course in his role as the inquiry chair before any decision is taken. The noble Lord also made a point about the cost and other issues that have already been addressed. Lord Justice Leveson said:
“Before leaving the Ruling, I add one further comment … If the transparent way in which the Inquiry has been conducted, the Report and the response by government and the press (along with a new acceptable regulatory regime) addresses the public concern, at the conclusion of any trial or trials, consideration can be given by everyone to the value to be gained from a further inquiry into Part 2. That inquiry will involve yet more enormous cost (both to the public purse and the participants); it will trawl over material then more years out of date and is likely to take longer than the present Inquiry which has not over focussed on individual conduct”.
On the point made by the noble Baroness, Lady O’Neill, about Parliament voting on part 2 of the inquiry, in fact Parliament did not vote on part 2; the inquiry was established by Ministers under the powers of the 2005 Act. Parliament voted on Section 40, but in this Motion we are talking not about Section 40, but about Leveson 2.
On the point made by the noble Lord, Lord Rosser, about the Government already deciding to abandon part 2, as I hope I have explained, we have not made a decision on this; we want to take a view on it as part of the ongoing consultation. It is five years since the inquiry was established and since the scope of part 2 was set. We think a consultation is needed before a decision is made on whether proceeding with part 2 of the inquiry, on either its original or its amended terms of reference, is still in the public interest. In response to the point from the noble Lord, Lord Pannick, as I said, we will consult with Sir Brian Leveson formally in his role as the inquiry chair before any decision is taken.
Baroness O'Neill of Bengarve
My Lords, I thank the Minister for her reply and other noble Lords who have helped illuminate the issue we recur to. The noble Lord, Lord Lester, is perhaps a little optimistic in imagining that IPSO is a model of self-regulation. Perhaps he meant to say a model of self-interested regulation. The point is that Leveson provides not regulation, but an audit of the standard of self-regulation. As we all know, IPSO has refused to have its process audited. Its so-called independent review of what it did was to terms of reference that it provided and funded by itself. Just as we think a free market requires companies that are—
Lord Lester of Herne Hill
I am sorry for interrupting the noble Baroness, but is she aware that the independent review was conducted by a very senior former Permanent Secretary?
Baroness O'Neill of Bengarve
I am aware of that and know him. I admire him and what he did in Northern Ireland. He is an admirable person. I comment just on the terms of reference.
Self-regulation is something anybody would concede can reasonably be subject to audit. We allow companies in a free market to proceed as they wish, but they have to have their accounts audited. It is no different when we say that a free press should also be willing to subject itself to proper standards of audit. That, in a sense, is the area of debate. We should be very careful to keep self-regulation distinct from audit.
Quality matters, as does Leveson 2. We will return to this terrain and I do not think this is the end of the story, but I will withdraw the Motion because it has one or two deficiencies we need to deal with. It is not at all adequate to imagine that we can deal with these matters by having a consultation after a parliamentary decision. That is essentially the reason why I feel strongly that this is not the way to go; however, I beg leave to withdraw the Motion.
Policing and Crime Bill
Lord Lester of Herne Hill ExcerptsMonday 12th December 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-III(a) Amendment for Report, supplementary to the third marshalled list (PDF, 54KB) - (9 Dec 2016)
Lord Deben
Not at all. The fact is that what the judge would be deciding is whether that name should be put forward at that point, and in most cases he would probably say no. I can think of very few cases when publishing the name in connection with an allegation would reduce the number of people coming forward if that name were later published at the point of an actual charge. It would therefore affect a limited number; in fact I do not believe there are any in this group. But if there were, I would want someone to be able to say, “In this particular case, it is so important that I will allow it to be done”.
Lord Lester of Herne Hill (LD)
My Lords, like the noble Lord, Lord Pannick, I was not intending to take part in this debate. However, with his great skill as an advocate, he has persuaded me to support my noble friend Lord Paddick’s amendment. I want to try to explain why. The main reason is that the noble Lord, Lord Pannick, with his usual brilliant, destructive analytical skill, has explained objections to the amendments but has not answered the fundamental question from the noble Lord, Lord Lamont: what safeguards does he propose to put in place of either or both these amendments? I am sure we will hear that from the Minister in her reply.
As a lifelong friend of Leon Brittan and his wife, during that one year while he was dying I witnessed the destruction of both of them through the callous misconduct of the police service, to which there was and is no effective remedy. The United States, which takes due process very seriously under its written constitution, has not abolished the grand jury. When the grand jury is investigating a federal crime, the one thing that is absolutely clear is that there must be no publicity for any of the evidence that it is investigating before deciding whether to recommend that the prosecution should be brought. The reason for that is the same reason that noble Lords have expressed today about the unsatisfactory nature of our legal system at present—it is the need to protect the innocent before the presumption of innocence has been applied at a trial.
Whether either of these amendments is acceptable or not, I believe that some kind of safeguard is needed—not just through guidance or a code of practice, but a binding legal rule that will protect people in the position of Lord and Lady Brittan from the kind of scurrilous allegations that were made, and the misconduct of the police in failing even to tell them before he died that they were satisfied there was no evidence against him. They allowed him to die not knowing that. There needs to be a prophylactic rule. If the Minister is against these amendments, I ask her to indicate in answer to the noble Lord, Lord Lamont, what the Government propose instead.
Baroness Williams of Trafford
I think I addressed that right at the beginning of my speech, when I said that the Government completely acknowledge the pain that some people have gone through in the course of the last few years—and in the course of history—due to being wrongly accused of crimes which they did not commit. I absolutely acknowledge that point. The noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said that it is an incredibly difficult issue, and I recognise that.
I was going to say something else. The College of Policing is currently developing—
Lord Lester of Herne Hill
The Minister acknowledges that there is a problem and that there have been cases of monstrous injustice to individuals. Several of us have asked whether the Government will go forward, not backwards, with some alternative to either of these amendments. Can she tell us precisely what she proposes to do, with revised guidance, codes of practice or anything else, so that we can be satisfied that the Government will solve the problem?
Baroness Williams of Trafford
I was just about to say—I do not know whether the noble Lord will be satisfied by it—that the College of Policing is currently developing authorised professional practice on media relations, and its guidance makes it clear that decisions should be made only on a case-by-case basis when it comes to the releasing of names. I am not sure that I have satisfied noble Lords but I have tried to explain how we have tried to achieve balance in the protection of anonymity for persons who are accused pre-charge.
Prevent Strategy
Lord Lester of Herne Hill Excerpts(8 years, 2 months ago)
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Lord Lester of Herne Hill
To ask Her Majesty’s Government whether they intend to set up an independent inquiry to evaluate the operation of their Prevent strategy.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, Prevent is a key part of the UK’s counterterrorism strategy, Contest. Since 2011 we have expanded Prevent to take account of the changing scale and nature of the terrorist threat. Prevent is working; it is safeguarding people from being drawn into terrorism. The statistics on Prevent delivery are reported in the Contest annual report. We have committed to updating Contest in 2016 and Prevent will be included as part of that refresh.
Lord Lester of Herne Hill (LD)
My Lords, I think that what the Minister said was no, the Government have no intention of supporting an independent inquiry. Am I right in that? Could I also ask her whether she is aware that my Question is being asked not just by me but by two Independent Reviewers of Terrorism Legislation—my noble friend Lord Carlile of Berriew and David Anderson QC—the Joint Committee on Human Rights and last week by the Open Society Justice Initiative in its report? I should declare an interest as a former board member of that organisation. Is she aware therefore that many more people than I think that it is now urgent to restore mutual trust and confidence by having an independent inquiry?
Baroness Williams of Trafford
My Lords, I was not aware that the noble Lord was speaking on behalf of others because his was the only name attached to the Question—but I take his point. My Answer was not actually “no” in the sense that we review how effective Prevent is being all the time. The previous Home Secretary, now the Prime Minister, commissioned an internal Home Office review of Prevent which concluded that it should be strengthened, not undermined, and made 12 suggestions on how to do so. Those suggestions are being brought forward as part of the Contest strategy review this year.
Investigatory Powers Bill
Lord Lester of Herne Hill Excerpts(8 years, 6 months ago)
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Lord Lester of Herne Hill (LD)
I, too, like the noble Lord, Lord West of Spithead, and others, welcome this Bill as a significant step towards providing a much-needed clear and transparent basis for the investigatory powers used by the security and intelligence services and law enforcement authorities. I also welcome the safeguards that it contains, some of which need to be strengthened. We must await the expert assistance of David Anderson’s report on the key issue of bulk powers. David Anderson is about the last person left in this country that I really trust on some of these issues.
I am grateful for briefing from the Law Societies of all four corners of the UK, the Bar Council of England and Wales, the Chartered Institute of Legal Executives and the NGOs, Liberty and Justice. I shall talk mainly about legal professional privilege, an issue raised some years ago by my noble friend Lady Hamwee.
It is essential that there is a powerful independent body able to ensure that the vital powers of the state and its agents are not misused. David Anderson QC, the wise and manifestly independent reviewer of terrorism, wrote in his report, A Question of Trust:
“Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite), but on there being mechanisms to verify that they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed”.
The Government’s simplification of the oversight system in the Investigatory Powers Commission is welcome. The commission should have the resources needed to improve transparency, efficiency and public trust in the vital work of the security and intelligence services. The commission needs to be properly funded and have the services of an amicus on difficult warrant applications. It is in the interests of public trust and confidence that the judicial commissioners are appointed by the Prime Minister on the recommendation of an independent appointments committee established by the Commissioner for Public Appointments. I hope that the Minister, who, I am delighted to mention, is a member of my chambers, as is the noble Lord, Lord Pannick—it is a curious, triangular situation—will be able to reply positively to these suggestions.
I turn to legal professional privilege, which has been spoken about powerfully by the noble Lords, Lord Rosser, Lord Pannick and Lord Paddick. It is a constitutional right inherent in the rule of law, which protects the individual’s right to consult a legal adviser in absolute confidence, knowing there is no risk that information will become known to a third party without the client’s clear authority. It is the right to speak safely with a lawyer, and it has been protected by our common law—and I dare say in Scotland, too—since at least the 16th century.
The mere prospect of surveillance creates the risk of a chilling effect on openness of communications with a lawyer. The accuracy of legal advice is an immediate and obvious casualty, but so is the rule of law. Without being able to discuss candidly, defending lawyers might not know about important defences open to a client. Courts may adjudicate cases on a misleading or incomplete basis. When people cannot speak safely with their lawyers, it is not only individual privacy that is affected but the administration of justice as a whole.
There is a danger of miscarriages of justice for individuals in litigation with the state. The Government may respond that there will be no unfair advantage when they monitor individuals’ meetings with lawyers, because they can maintain a Chinese wall between spies and prosecutors. But that was not the finding of the Court of Appeal in 2011, when it struck down the convictions of 20 environmental protestors whose conversations with a lawyer had been monitored by an undercover police officer, Mark Kennedy. Nor was it the finding of the Investigatory Powers Tribunal in April last year, when it ordered GCHQ to destroy illegally intercepted communications between a Libyan rendition victim, Abdel Belhaj, and his lawyer. In mishandling those data, GCHQ rightly admitted that it had broken its own rules and had broken the law.
Prohibiting the targeting of legally privileged communications does not impair the ability to bring dishonest lawyers to justice. Legal privilege attaches only to communications between lawyer and client genuinely aimed at obtaining legal advice. If the consultation is a cover for a conversation whose true aim is to further a criminal purpose, it is not protected. The Bill should forbid deliberately targeting legally privileged communications.
This may be an unnecessary academic, technical point, but I still think it worth mentioning. Reference has been made to an iniquity exception, but it is more accurately described as a constraint on the scope of the privilege. For example, Section 10(2) of the Police and Criminal Evidence Act 1984 states:
“Items held with the intention of furthering a criminal purpose are not items subject to legal privilege”.
That, I think, is the correct approach.
When compelling evidence suggests that the privilege is being abused, a judicial commissioner should be required to authorise covert information-gathering. There should be no grant or modification of a warrant likely to capture privileged communication unless there is prior judicial approval. This protection is written into the Bill in respect of journalists’ sources—see Clause 73. Legal professional privilege needs equal protection. There is also a need for safeguards to ensure that any legally privileged communications intercepted accidentally or incidentally are immediately destroyed.
Like the Joint Committee on Human Rights, I recognise the value of thematic warrants, but the Bill’s provisions concerning the possible subject matter of targeted interception and targeted equipment interference warrants are too broadly drafted. As the JCHR recommends—and I agree with it—the Bill should be amended to circumscribe the possible subject matter of warrants in the way recommended by the Independent Reviewer of Terrorism Legislation. That will ensure that the description in the warrant is sufficiently specific to enable the person unknown, but who is the subject of it, to be identified and to prevent the possibility of large numbers of people being potentially within the scope of a vaguely worded warrant. One is reminded, for those who are interested in history, of the kind of Entick v Carrington problems that were raised in the 18th century.
The JCHR has said that,
“the power to make major modifications to warrants for targeted interception, without judicial approval, is so wide as to give rise to real concern that the requirement of judicial authorisation can be circumvented, thereby undermining that important safeguard against arbitrariness”.
I agree with the JCHR that major modifications to warrants should require approval by a judicial commissioner.
The independent reviewer has said that he knows of no other country in which the Secretary of State holds responsibility for authorising police warrants; judicial authorisation is sufficient. The Home Secretary signs some 1,600 warrants each year, not including national security warrants. If the requirement of her direct approval for police warrants were removed from the Bill, she would have 70% fewer warrants to approve, giving her more time to focus on vital national security interests. That makes good sense.
As I said at the outset, I welcome the Bill and hope that it will be significantly improved, as suggested by my noble friend Lord Paddick and others in the debate. I look forward to the Minister’s response.
Lord Butler of Brockwell (CB)
My Lords, it is a great pleasure to follow the noble Lord, Lord Lester of Herne Hill. It brings back the arguments we used to have about the powers of the intelligence agencies on dog walks around Brockwell Park—which, incidentally, is not my personal estate. He was then counsel in the Spycatcher case; I was about to be Cabinet Secretary. He did not trust me then and since he says now that David Anderson is the only person he does trust, that situation clearly has not changed.
When I last spoke in the House, on the Motion of the Leader of the Opposition about the powers of Parliament and of this House, I was critical of much of the legislation introduced into Parliament. I do not withdraw that but I do not make those criticisms of this Bill. On the contrary, like others who have spoken, I commend the way in which the Government have brought forward the Bill and the way in which it was debated and scrutinised in the other place.
The Government published a draft of this Bill in the autumn. Despite the fact that preparation of it had been informed by authoritative reports from the Independent Reviewer of Terrorism Legislation, the Intelligence and Security Committee of Parliament and RUSI, the Government produced it when it was, frankly, still in the course of preparation. It was just being baked. But that was a thoroughly good thing to do because it could then be considered by a joint pre-legislative committee—on which I had the privilege of serving, under the noble Lord, Lord Murphy—by the Intelligence and Security Committee and by the House of Commons Science and Technology Committee. That enabled a large number of changes to be made and improvements to be introduced before the Bill was brought before Parliament. At the same time, the Government undertook widespread consultation with interested parties outside Parliament, including the communications service providers, which were able to give evidence to the parliamentary committees. So there was a very transparent method of preparing this Bill, which was necessary in view of its complexity.
I have read in full the debates in Committee, on Report and at Third Reading in another place. Without being patronising, I think that they show the House of Commons at its best. There were no less than 16 Committee hearings. The Government responded constructively to the Opposition and, as has been said, introduced many amendments to respond to their points. As a result, it is remarkable that the Official Opposition did not vote against the Government in a single Division.
Of course, many matters were left over for this House, and I will come on to those, but I would also like to say—seeing as I am to be followed by the noble Marquess, Lord Lothian, who is a member of the Intelligence and Security Committee—that the scrutiny has shown the strength of the mechanisms that Parliament has for considering issues of this sort. In addition to the specialist committees that I have referred to, the Intelligence and Security Committee is able to operate within the ring of secrecy around these highly classified issues, and has shown itself capable of reassuring Parliament in some areas but also of proposing additional safeguards in other areas where oversight of the intelligence agencies needs reinforcement. That has been a very valuable contribution.
None the less, as others have said, there is much work for your Lordships’ House to do. There are important issues in the Bill that still need to be determined. Part of the Government’s response to criticisms raised in the other place was to promise further consideration in your Lordships’ House. That covered such important issues as protection of legal privilege, on which the noble Lord, Lord Lester of Herne Hill, and other noble Lords spoke; further protection of journalistic freedom; the definition of crimes for which access to communications data is justified; and the whole issue of the operational case for bulk powers. On top of that, although clearly the Home Office has made much progress in discussions with communications providers about the definition of internet connection records, questions remain about both the effectiveness of those and the cost of collecting them. We must remember that hanging over the whole issue is the case brought in the European court by David Davis MP and Tom Watson MP about the retention of communications data, in which there may well be further developments during the passage of the Bill.
The intention is that this House should start Committee before the Summer Recess but not complete it. That makes sense because by the end of the Recess we can expect to have David Anderson’s report on the operational case for bulk powers, which will be central to considering Parts 6 and 7 of the Bill. This is a very difficult but very important Bill. I hope that this House can maintain the very thorough but also very co-operative and constructive tone of the scrutiny that has taken place on it so far.
Lord Lester of Herne Hill
I apologise to the noble Lord and the whole House for the hurt I have caused him by suggesting that I trust David Anderson more than anybody else. I trust the noble Lord, Lord Butler of Brockwell, almost as much.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this has been an interesting and thought-provoking debate, which has benefited from the considerable expertise on all sides of this House. I am grateful to all those who have contributed. In particular, I welcome the contributions from those opposite. This reflects the constructive approach that has been taken to the Bill right across Parliament.
Indeed, I recognise the consensus on all sides of this House that new legislation is needed to make the use of these powers clearer and more transparent. We have an opportunity now to ensure that the security and intelligence agencies and law enforcement have the powers they need, and to strengthen the safeguards and oversight that govern their use. The list of speakers this evening is testament to the importance of this issue.
Mention has repeatedly been made of the need to balance privacy and security. There have been references to the privacy of the innocents, but one must also take account of the protection of the innocents. As the noble Baroness, Lady Liddell, observed, one of the primary human rights is the right to life, and without that the others fade into insignificance.
A number of issues have been raised in the course of this fairly lengthy debate. If I am short in responding to them at this stage, it is not because I consider those contributions slight but because I am constrained by time.
The noble Lord, Lord Rosser, raised the question of EU co-operation, which has just been revisited by the noble Baroness, and whether that would impact the present Bill. There is, of course, no immediate change to our relationship with the EU and it is not considered that any changes are or will be required to the Bill by virtue of recent developments. Of course, negotiations will take place over the coming weeks and months with regard to our situation and the EU, and these will clearly need to take account of our security and the need for cross-border co-operation in the area of security and the need for further co-operation beyond that. But let us remember that we already co-operate with many countries beyond the European Union in matters of security. Noble Lords will be familiar with the “Five Eyes”, which includes the United States, Canada, Australia and New Zealand—none of them connected with the European Union. So it is not considered that that will be an issue for the Bill as it proceeds.
The noble Lord, Lord Rosser, also referred to the undertakings and commitments that have been given in the Commons with regard to the Bill. Of course, we will meet those commitments and undertakings. We fully intend to bring forward a number of amendments. We intend to have those amendments available by 4 July.
There are remaining issues, of course, that will be the subject of further debate. The noble Lord, Lord Rosser, made reference to such issues as the privacy clause, which is now expressed in the Bill and the Bill is improved because of that; the express provision on trade unions—again, the Bill is improved because of that; and the question of dealing with whistleblowers’ protection, which the Solicitor-General alluded to in the other place. Again, we will meet our commitments with regard to these matters.
I turn to some of the observations of the noble Lord, Lord Paddick, which were supported to some extent by the noble Lord, Lord Oates. He concentrated in particular on internet connection records and something that he referred to as a draconian power. I noticed that the noble Lord, Lord Condon, alluded to these powers and was at pains to point out that they were not extending any boundaries but maintaining them. I would go further: these powers are actually restoring a boundary that had been lost as people moved away from conventional telecommunications. There was a time when police powers in regard to conventional telecommunications would provide them with the datasets they required, particularly in the context of evidence gathering and prosecution.
I pause on that note. The noble Lord, Lord Paddick, suggested that recourse could be had to the powers of the security services rather than in gathering ICRs. But of course that is neither practical nor effective because many of the powers of the security services produce investigative material that is not admissible as evidence in a court of law. Therefore, one has to be careful about how one confuses the powers of the security services to gather and investigate and the powers that are conferred upon the police in the context of internet connection records.
With regard to the security of that material, the noble Lord, Lord Oates, raised a number of questions, some of which puzzled me a little. What I will say is this: clearly, the data are retained by the service provider and those service providers are bound by various data protection obligations with regard to the security of those data, and that will continue to be the case. As regards the period of retention—12 months—that reflects the requirements of the police in the context of the sorts of investigations that are carried out by reference to these kinds of data; that is, telephonic communications data and the like.
So far as cost is concerned, the noble Lord, Lord Paddick, cited a figure of £1 billion. I know not where that figure came from, but the considered opinion of the Government is that the cost will be in the region of £174 million over 10 years. Of course, that cost is not to the service providers but will be met by the Government where it is reasonably incurred by the service providers when and if they are required to retain the relevant data.
The noble Lord, Lord Paddick, also referred to the request filter as a database and said that it was therefore vulnerable. The request filter is not a database; it is simply a filter. It is a further safeguard because it will operate in such a way that where a mass of data are returned by a service provider they will go through the request filter, and the relevant authority will receive only the data it requested and no additional data, notwithstanding what the service provider may have made available. I hope that answers the points raised by the noble Lord, Lord Paddick.
I will not be able to answer every query that has been raised today. If at the end of this evening there are any points that noble Lords feel I have not responded to and wish me to do so before Committee, they should allow my office to be aware of that and I shall arrange to write to them on the particular topic. I say “my office” in response to an observation from one of my noble friends who said that there was no Home Office Minister here. I had understood that I was here in the capacity of a Home Office spokesperson. If I am not, I want to know why I have been answering all these questions for the past four weeks.
The noble Lord, Lord Paddick, also referred to the RUSI 10 tests, which were alluded to by the noble Lords, Lord Hennessy and Lord Rooker. Professor Michael Clarke, the then director-general of RUSI, gave evidence to the Joint Committee that scrutinised the draft Bill. He said:
“As Chair of the RUSI panel, I can say that the Bill met most of our expectations in terms of the recommendations that we made”.
The noble Lord, Lord Rooker, made the sensible suggestion that we should consider producing a paper in which we set out the Government’s response to each of those 10 points. I hope he will understand what I mean when I say that we will take that and give it due consideration.
The noble Lord, Lord Pannick, raised the question of legal professional privilege. He was joined in these observations by the noble Lords, Lord Lester, Lord Beecham and Lord Thomas. I notice that, in his account of his experiences, the noble Lord, Lord Thomas, did not say what happened to the bag of money but surely we can infer that it remained where it was. I fully accept the analysis of legal professional privilege that has been advanced by each of the noble Lords. The present position is this: I am due to meet representatives of the Bar Councils and the Law Societies this coming week to discuss the scope of the provisions within the Bill with regard to legal professional privilege.
The noble Lord, Lord Pannick, was right to observe that there is one problematic area—the question of when and to what extent there should be access to LPP material in circumstances where there is no iniquity. There may be very exceptional circumstances in which it is critical in the context of an immediate investigation that some data should be recovered. That will be addressed and we will bring forward our finalised position in due course.
There was also the question of journalistic privilege. This has been clouded by a misunderstanding on the part of many journalists as to what, if any, privilege they actually enjoy, in particular the belief that whenever security services sought information from a service provider they would be given notice of that. That is not the case. It is not the present law and it is not realistic that that can be law. However, again, this will be addressed going forward.
In addition, of course, we have to address the question of what is a journalist. I believe one noble Lord on the opposition Benches said that could be defined normally by waving an NUJ ticket. That is no longer the case and virtually every blogger on the planet would claim to be a journalist of one kind or another. It is a very serious issue and we will seek to address it.
The noble Lord, Lord Blunkett, mentioned the necessary balance between liberty and privacy and again underlined the need to balance the privacy of the innocent with their protection.
The noble Lord, Lord Strasburger, raised a number of issues. I shall not repeat what I have already said about internet connection records or the request filter. He also questioned whether the provisions of the Bill would somehow threaten, as he put it, encryption. There is no question of that. The provisions of the Bill do not weaken encryption or threaten it. We do not seek what have sometimes been erroneously termed “back doors” into encrypted material. I would seek to dispel any such suggestion.
The noble Baroness, Lady Neville-Jones, raised questions about extraterritorial jurisdiction, as did the noble Baroness, Lady Liddell, and the noble Lords, Lord West and Lord Janvrin. The US Attorney-General recently indicated that discussions are ongoing to address conflicting legal obligations in circumstances where we seek the release by American companies of material. United Kingdom law is perfectly clear that companies providing communication services to users in the United Kingdom, irrespective of where they are based in the world, must comply with lawful requests and warrants from UK authorities. The ultimate power to deal with that would of course be contempt of court proceedings. We maintain that right to extraterritoriality. In response to a further point made by the noble Baroness, Lady Liddell, I should add that we are satisfied that the provisions of the Bill comply with and meet our international legal obligations. Whether it sets a template for others is a different matter, but we are satisfied in that regard.
The noble Lord, Lord Lester, raised the question of legal professional privilege. He also referred to the position of the IPC and to the “commission”. I should be clear that in terms of the Bill there is no commission; there is a commissioner. However, the commissioner has the express power to seek independent legal advice as and when required. I believe that another of your Lordships referred to the commission. It is not a commission; it is the commissioner.
Lord Lester of Herne Hill
I am grateful for what the Minister has just said, but will the Government consider, as David Anderson has suggested, that there should be a commission endowed with the kind of powers that he has recommended?
Lord Keen of Elie
I note the observation. The position of the Government is that it is appropriate that there should be a commissioner and that it is not necessary that there should be a commission. Clearly, this matter can be revisited in Committee.
Thematic warrants were mentioned by the noble Lord, Lord Lester, and my noble friend Lord Lothian. Thematic warrants are considered vital to investigate complex and fast-moving threats, and they are currently provided for under RIPA. The Bill simply clarifies and strengthens the safeguards around the operation of thematic warrants but, again, if there are issues as to their scope, they can be revisited in Committee.
My noble friend Lord Lothian and the noble Lord, Lord Janvrin, raised the question of bulk personal data. The Government accepted in principle the argument that we should provide further restrictions on the use of class BPD warrants and should take into consideration some of the detail contained in the ISC’s draft clause. The Government intend to bring forward some amendment on this—again, I indicate that it should be available by 4 July.
My noble friend Lord Lothian also mentioned additional offences being incorporated into the Bill. It is considered that the changes made to Part 1 make clear the criminal offences that apply. The Bill also creates a new offence for the acquisition of communications data without lawful authorisation. Beyond that, it is not considered appropriate to introduce further criminal offences into the Bill at this stage.
Questions were raised about the double lock, of course. The position of the Government, and I believe that of the Opposition, is that we have now arrived at a suitable position in this respect, but it is important that the judicial point here should be subject to a test of judicial review. It would not be appropriate for a judge in these circumstances to revisit the merits of a decision, and I hope that that will find wider support in the House in due course. In the end the Secretary of State must be answerable to Parliament for the warrants for these intrusive powers, and that is allowed for.
In the context of warrants, the noble Lord, Lord Evans of Weardale, raised the question of speed of operation. There is provision within the Bill for an emergency warrant to be issued by the Secretary of State and then be the subject of review by the judicial commissioner. It is hoped that speed of operation will not be challenged by the terms of the Bill going forward. The noble Viscount, Lord Colville of Culross, mentioned in the context of journalists the matter of notification of warrants. As I indicated, that is not the present law and it is not considered a realistic way forward, but again I anticipate that that may be considered in Committee.
Modern legislation that consolidates and clarifies the powers available to the state to obtain communications and related information is, I believe it is generally acknowledged, badly needed now. That was the conclusion of three independent reviews and three committees of Parliament. The Bill achieves that aim. The threats we face are evolving and the ways in which we communicate are changing rapidly. The capabilities of law enforcement and the security and intelligence agencies must evolve and change too. It is Parliament’s responsibility to ensure that those charged with keeping us safe have the powers they need, governed by strong safeguards, strict protections and robust oversight. That is what the Bill provides.
The Government are clear that the Bill must command the support of Parliament and the public. It arrives in this House having been subject to extensive debate and examination in the other place and having received cross-party support and a resounding majority there. As we have done to date, we will continue to listen, to engage and to make changes that improve the Bill or strengthen its safeguards. We have the opportunity here to deliver world-leading legislation that provides robust oversight and powerful privacy protections. It is legislation that is clear, comprehensible and legally sound. It will provide the men and women of our law enforcement and security and intelligence agencies with the powers they need to keep us safe. I commend the Bill to the House.
Islam: Extremism
Lord Lester of Herne Hill Excerpts(8 years, 10 months ago)
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Lord Ahmad of Wimbledon
I agree on the whole issue of interpretations and the right not to be offended, because after all that is what we are protecting here in our country. I think that there is a distinct line to be drawn when it comes to any conservative practice of a particular religion. Indeed, my right honourable friend the Prime Minister is on record, when referring to Islam in particular, as saying that anyone who is devout of faith can be anything but an extremist. The right to offend someone and not to be offended remains a value that we wish to protect, but we need to stand up to those who seek to divide us and to create division between society and faiths. That is certainly what our counterextremism strategy is all about.
Lord Lester of Herne Hill (LD)
My Lords, is the Minister aware that I have tried four times to get a straight answer to a Parliamentary Question about whether, in countering extremist ideology, the Government are concerned about the preaching and teaching of Wahhabism in mosques and Muslim education bodies in Britain that are funded from overseas? Could he please answer that question with a yes or no?
Lord Ahmad of Wimbledon
We are concerned as a Government—as we all are—about any kind of funding which seeks to harm and disturb the nature of our society. The noble Lord referred to a particular issue; the review that has been set up was set up with that very intention: to look at all forms of extremism that seek to influence or distort Islam in a way which is not conducive to the fundamental shared values we enjoy in Britain today.
Psychoactive Substances Bill [HL]
Lord Lester of Herne Hill Excerpts(9 years, 6 months ago)
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Lord Lester of Herne Hill (LD)
It is my fault and my stupidity but I do not understand how this amendment can properly be regarded as a wrecking amendment. Can the noble Lord explain that to me?
Lord Cormack
I said that it had some of the ingredients of a wrecking amendment because it would delay by at least a year the implementation of legislation that many believe to be urgent and necessary.
Serious Crime Bill [HL]
Lord Lester of Herne Hill Excerpts(10 years, 2 months ago)
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Lord Lester of Herne Hill (LD)
My Lords, I rise only because of my experience in piloting through the Forced Marriage (Civil Protection) Act 2007. I just want to say how glad I am—because we are dealing with a whole group of amendments—that the Government are not only toughening criminal law, but also mimicking, or copying, that Act in relation to female genital mutilation. That is dealt with as a new schedule in government Amendment 46G. I would like briefly to explain why that is very wise.
The problem about using criminal law in this area is that it depends upon all the safeguards of a fair criminal trial. It depends upon there being a prosecution before a criminal court to a high standard of proof, the burden being on the prosecution, and all the panoply of a criminal trial, which may terrify anybody, but certainly will in this sensitive area. It is therefore extremely difficult for a prosecution to succeed in a case of this kind. It is said, and it is the position of the Government, that it is very important to send a signal. I am not, on the whole, in favour of using law simply to send signals.
Although I understand why the Government are strengthening the criminal law, if we are serious about dealing with this odious and significant social evil, the civil law is much more likely to be effective, including the use of the family courts. This is because, as with the Forced Marriage (Civil Protection) Act, first of all you do not need the victim to apply. A third party can do so. In fact, you do not need anyone to apply; the court can do so on its own initiative. Secondly, the application will be heard in private. Thirdly, the outcome will not involve dishonouring the family. It is extremely important in an area of this kind that the victim is not put in a position where if she gives evidence she will be permanently alienated from her family.
I am delighted that the noble and learned Baroness, Lady Butler-Sloss, is in her place, because she has far more experience of this than I have. Certainly experience of the 2003 Act has been very good in that forced marriage civil protection orders have been made in their hundreds and been complied with. It has worked because it uses the civil route of family law and family courts with all the expertise of those courts, in a way that will not deter victims from coming forward and which will not mean permanent divisions within the family.
As I read what the Government are proposing, that is well understood. That is why the new schedule which is to be inserted on female genital mutilation protection orders largely mimics what we were able to achieve in that Bill. I will explain who I mean by “we”. That Bill had the support of women, including Asian women, bodies such the Southall Black Sisters and the refuges. They really took ownership of it and made sure that it was something that would work. That ownership is vital. What is contemplated here should do that.
Baroness Smith of Basildon
I would like to ask the noble Lord’s advice on this, because he referred, as I did, to the forced marriage protection orders. I understand that that was done by an amendment to family law. The point on which I was asking the Minister to come back on was whether, by not amending the family law in the government amendment, although we seek to do that in our amendment, we will make it more difficult to bring the law together and deal with it in a family court. Does the noble Lord have a view on that, having dealt with this previously?
Lord Lester of Herne Hill
That is a very good question, but I cannot really answer it. My reading of government Amendment 46G indicates that there is a copying in of what had happened with forced marriage. Furthermore, paragraph (7) of the proposed new schedule in the amendment amends the Family Law Act and gives jurisdiction to the family court. I may be talking complete rubbish and I may be corrected, either by the noble Baroness or by the Minister. I am simply trying to get across why the civil route is so important and the use of family courts is so important.
Baroness Butler-Sloss (CB)
I shall pick up that point. It is perfectly obvious to me as a former president of the Family Division that it does not matter which piece of legislation it is as long as the work done in relation to female genital mutilation is allocated to the single family court and heard either by High Court judges or circuit judges who are ticketed to try family cases. This is really not for the ordinary civil judges in what was the county court.
I am interested by this talk about the High Court or the county court. We should actually be talking about—I say this respectfully to the Government—the single family court. It does not matter whether it goes into the Family Law Act as is suggested in the excellent opposition amendments, which I largely support. What matters is who actually tries it. Just as with forced marriages and every other child protection issue, we have here issues of crime, but we know perfectly well that there has not yet been a single conviction of anyone who has done this. It is a question of culture, too. One has to train people in this country that this is not an acceptable practice. The Government are to be enormously congratulated for working on that—as were the previous Government when introducing the 2003 Act—but nothing has gone far enough.
I totally agree with the noble Lord, Lord Lester. I would like to see what is good in each set of amendments put together. Therefore, I hope that the Opposition and the Government will get together after Report and thrash out what would be the best of everything and get that into one list that could go into Third Reading. I do not think that the Government go quite far enough. A great deal of what the Opposition are saying is exactly what we need, but it all needs to be put together. Certainly, the most important thing is that it should go to the single family court and be tried by High Court or circuit judges who have specialist family experience.
Lord Lester of Herne Hill
Everything that the Minister has said is music to my ears, and I congratulate her and the Government. However, she has just mentioned Northern Ireland and that provokes in my mind the question about what happens beyond England, Wales and Northern Ireland. What will be the position if someone goes to Scotland or to another country? The same problem arises with forced marriage. Will the Government take steps to try to persuade other jurisdictions to collaborate, if necessary by amending their laws, so that when people move from this country to carry out this vile procedure, it can apply not only to England, Wales and Northern Ireland?
Baroness Williams of Trafford
I thank my noble friend for bringing up that point. In actual fact, Scotland has very strong provisions in this area, and in a certain sense we are catching up, so I hope that answers his questions.
Lord Lester of Herne Hill
Sorry, I said not only Scotland but any other country. Scotland sounds as though it is fine. But what happens with any other part of Europe or the Commonwealth?
Baroness Williams of Trafford
I apologise to my noble friend. I am sure that if other countries or jurisdictions want to take on our legislation, that would not be a problem. I will confirm that with the noble Lord in a letter and also put a copy of that letter in the Library, but I assume that to be the case.
I have been on my feet for some time, but I hope that I have set out in a little detail the effect of the government amendments. I am grateful to the House for bearing with me and commend the government amendments to the House.
Crime: Domestic Violence
Lord Lester of Herne Hill Excerpts(10 years, 7 months ago)
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Lord Lester of Herne Hill (LD)
My Lords, as is so often the case, I share the aims of the noble Baroness, Lady Thornton, but I do not agree with her means. The problem I have with the Question she has raised for debate is that it presupposes that the important way of tackling what is referred to as,
“a pattern of behaviour, psychological abuse and coercive control in domestic violence cases”
is through the introduction of more criminal law. Apart from minor exceptions, I do not agree with that. We have plenty of criminal law to cover these issues, and we have plenty of civil law, including the Protection From Harassment Act 1997, covering both civil and criminal litigation, and what we put into the Equality Act 2010 in the form of civil law on sexual harassment. There is a great mass of law.
The problem with relying on the criminal law is illustrated by what has happened with FGM. The practice was criminalised many years ago, but until very recently no prosecutions had been brought. Why is that? It is because, first, the victims are inhibited from coming forward. There is the whole business of not dishonouring the family. Secondly, the police are hardly the best people to rely upon to take up these extremely complicated and difficult family issues. Thirdly, the burden of proof is criminal. Fourthly, the mode of trial is criminal and it is normally held in public. There are all kinds of reasons why the use of criminal law can be ineffective.
I learnt all this when I was dealing with forced marriage. The Labour Government had quite rightly rejected the notion of criminalising forced marriage, so I decided to plug the gap by inventing a civil protection that would use the family courts to deal with the victims. It has worked extremely well. Many cases have been brought in which alleged forced marriages or attempted forced marriages have been prevented by the family courts. Article 37 of the Istanbul convention, which I hope the Minister will indicate the Government intend promptly to ratify, says of forced marriage that:
“Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised”.
I was hesitant when I saw that. It is one thing to use the criminal law when there is a breach of a court order—a forced marriage protection order, for example—but it is quite another matter to create a free-standing crime. That is problematic because it may deter very young children—boys and girls—women and men from coming forward with their complaints of gross malpractice, for fear of dishonouring their families. Although this is not really for this debate, I hope that, after the Government have ratified the Istanbul convention, and after we have thought about the legislation to do that, we will ensure that the criminal process is only used when the civil process cannot give an effective remedy.
The Joint Committee on Human Rights, of which I am a member, has heard a great deal of evidence from the fundamental rights agency about its massive survey of all the EU member states. It has produced a huge report, and it looked in particular at the UK. In no part of that report has the agency suggested there is any need for more criminal law. I agree with that. Instead, the evidence I have heard so far indicates the importance of a wide range of other measures. If she will forgive me, I wish the noble Baroness, Lady Thornton, had said “tackle” instead of using the word “criminalise”. If she had asked what plans the Government have to tackle this pattern, one could have looked beyond the criminal law—for example, at the role of the health service in identifying and supporting victims of violence against women and children. One could have looked at training doctors and healthcare providers to look for physical and psychological signs of domestic violence, such as signs of controlling behaviour. That is important, because women come into contact with doctors and other healthcare providers more regularly than they would with the police or specialised services.
So far as the UK is concerned, the fundamental rights agency has recommended the need in this country to increase awareness of violence against women and children, to provide training for perpetrators, and the importance of focusing on bullying and harassment in schools. We need workable legislation; we broadly have that. We need to ratify the Istanbul convention. We need a comprehensive action programme, because one in three women is affected by domestic violence. That is a comprehensive problem, needing a comprehensive solution. We need to deal with new technologies that enable cyberstalking and harassment, misogynistic hate mail and so on. However, we should not focus just on reporting to the police, but on reporting to doctors and healthcare workers, on dealing with violence in childhood and on the impact experienced in adulthood resulting from that.
I agree with the aim, but as I say, I do not agree with the means. I hope the Minister, in his reply, will be able to say that the Government have no plans to further criminalise in this field, except in very exceptional areas where a real gap can be found. To do so would hamper the means of dealing with domestic violence, rather than promoting them.