Queen’s Speech

Lord Mackay of Clashfern Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I am sure the House will appreciate that there are many things in the gracious Speech upon which I would like to speak. I am glad to associate myself with what the noble and learned Lord, Lord Judge, has said in that connection.

What I want to do this morning will be very brief. A little phrase in the Queen’s Speech says:

“Legislation will also be introduced to ban conversion therapy.”


I expect that that is absolutely clear to all of your Lordships but it is not at all clear to me. First, “ban” is rather ambiguous, because it could involve criminal responsibility or some other forms of banning. Then there is “conversion”, a word with which I have been pretty familiar all my life. It was always regarded primarily as meaning that a person took more interest in religion at a particular stage in his or her life than they had taken before. On the other hand, it is also used in connection with moving from one religion to another and in connection with, say, changing a car from being dependent on petrol to electricity. The word is somewhat large in scope. Then we come to “therapy”. I have always understood that therapy was about, if possible, making you better. You went along and hoped that you would get some sort of therapy that would make you better when you came out than when you went in, so I find this very difficult. However, it is not without precedent.

I have tried to understand this business over some months and have read an erudite legal report about it—the Cooper Report—which indicates the nature of the problem. I have studied that extremely carefully and think it is talking about a type of banning by criminal jurisdiction, by making something or other a crime. The question is: what is it that is to be made a crime? In that report, very learned and experienced people have set out a whole lot of illustrations. The passing from the one side to the other, from innocence to guilt, is quite difficult to make out from this great learning. I think I read that the definition is so difficult that it should be made a bit wider than what at first sight might appear to catch what may not be quite a crime under this idea.

It strikes me that, if you are starting to alter the criminal law, the last thing you want is to incorporate in crimes things for which nobody regards a criminal responsibility as arising. To make it wider, just in case you cannot catch all that is in this definition, is surely a rather terrible scourge on the idea of a proper criminal situation. It is a mighty difficult subject which is covered by those three small words.

In recent times, the whole scope of this problem has been brought into relief by people asking: does it apply to a change of gender? I do not know the answer to that question because it is not me putting this forward, but it really is quite a question. There are other questions about it too. There was a big consultation and I took quite a lot of time to set out what I thought about it. I do not know that we have heard yet exactly what has been decided as a result, but it is certainly a tricky problem that those three words are supposed to expose.

There will be many other problems apart from that, and I would love to have time to get involved in them. The idea of moving the responsibility from the court to somebody else is always somewhat difficult. I agree that the courts may sometimes have the power to impose responsibility for expenditure on the taxpayer but, as the noble and learned Lord, Lord Judge, points out so clearly, if that is thought to be wrong the legislature can correct it quickly. It has a powerful correction mechanism for any such variation.

I put in a fairly detailed answer to the consultation on the Human Rights Act and, on the whole, I do not think it is moving very much. It is rather less in scope than your Lordships might think. However, my scope is finished, so I thank your Lordships for listening.

Nationality and Borders Bill

Lord Mackay of Clashfern Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I have listened to a debate of extremely strong argument and extreme persuasion, but I think it is now time that we got on with the task of sending back provisions of this Bill to the other place for it to reconsider. It is very touching for me to stand up for a moment here, because it is the 50th anniversary—exactly, to the day—of my maiden speech in this House.

[Lord Mackay of Clashfern (Con)]

I have been made anxious by the intervention of the noble Lord, Lord Pannick, in this debate. I have to say that I do not think it is for me to decide whether this is in accordance with the law or not. The Law Officer of the Crown is the Attorney-General, and my understanding is that the Attorney-General has supported the Bill. Therefore, one can take it that her opinion is that it is lawful.

After all, lawyers sometimes disagree, and I am not prepared to put myself in the place of the Attorney-General of this Government. A very distinguished lady is in that office. Therefore, it is right for us to say that, so far as we are concerned, the Government have the advice of the appropriate Law Officer. It is also important that, if necessary, the Attorney-General is the adviser to this House. Therefore, it would be very difficult for us—or at least for me—to proceed on the assumption that this is unlawful. I of course understand the arguments about this, but the ultimate conclusion is that of the Attorney-General, and that, in my view, is why the Ministers in the other place asserted so strongly that this was lawful.

Nationality and Borders Bill

Lord Mackay of Clashfern Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Verma (Con)]

My Lords, I declare my interests as set out in the register. This would be absolutely the right thing to do at this time, in order to demonstrate UK leadership. When it comes to long-standing government policy, we are a democracy and we should evolve, and policies should evolve with it. These people deserve our support in being given the right to go back to their homes. If we are to have any standing in the world, let us show that leadership today.

[Lord Mackay of Clashfern (Con)]

My Lords, this is a unique situation. These islanders were forced out of their homes not because of any objection to them, but to facilitate the development of bases desirable, perhaps, rather than necessary, in war. They have done nothing wrong and would be entitled, were they still there, at this level, to the citizenship which the Act gave them. The only reason they are denied it is that they are not now living where they would be, had they been left at home. That cannot in any way be imputed to their blame or against them in desiring to get what they would have otherwise had.

I want to understand what this long-term government policy is. Is it that people who have been damaged by activities of that kind should not be recompensed, or is it some other policy? Unless and until this extended government policy is explained, it is hard to see what sort of policy worthy of the name could be applied to making a refusal in this situation. It is difficult for those of us who are old enough to carry responsibility for what the Government did, but more difficult still to carry responsibility for what the Government are now apparently refusing to do.

If there is anything wrong with the drafting of the amendment—I am not conscious of it, but it may be pointed out—I see no reason why the Government should not extend this until Third Reading and correct any mistake. As I say, I do not see anything wrong with it, but I am always subject to being corrected and therefore I leave that open for my noble friend the Minister to deal with.

The real essence of it is that these people were put out of their homes for reasons that had nothing to do with any deficiency, damage or ill-considered action on their part. Nobody has suggested that they did anything wrong, and I find it very difficult to see why they should not get the benefit of what they would have had if they had not been wronged.

[Lord Cormack (Con)]

My Lords, I rise very briefly to say a few words in tribute to one of the most remarkable parliamentarians I have ever known and one of the best friends I have had in my time in Westminster: the late, great Tam Dalyell. He was on to this before anybody. He campaigned publicly and in the House of Commons. If he is looking down on your Lordships’ House as we debate this afternoon, I think he will have a thrill of satisfaction having heard the speeches we have just heard, particularly that of my noble and learned friend Lord Mackay of Clashfern.

It is never too late to put right a wrong. It is never too late to offer justice to those to whom it has been denied. It is incumbent on any Government who value their own self-respect to put right this wrong. I had to hear my noble friend’s other answers from the Bar of the House. I sympathise with him; he has drawn not one but two short straws today, and he is a new Minister, but he will earn enormous credit from your Lordships’ House if he is able to get up and say, “Yes, this is an overwhelming moral argument. Yes, I accept the justice of it. Yes, I will take it away, talk to my ministerial colleagues and come back with something satisfactory”—although, in my view, this is satisfactory—“at Third Reading”. If he does that, I know the noble Baroness who moved the amendment will be satisfied; she is indicating that she will. If he cannot do that, I hope she divides the House and I will be with her.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank all noble Lords who have spoken. I think it is unusual to have more support from the Government Benches than from any other Benches—and very strong support it has been.

The two interventions really put their finger on how the poor Minister—I am afraid he is making a face—did not address the fact that this is a unique case, as the noble and learned Baroness, Lady Butler-Sloss, said. As the noble Baroness, Lady Altmann, said, if their grandparents had not been forcibly evicted and kept in exile, these people would probably still be living on the Chagos Islands and be entitled to British citizenship. It is citizenship that they want. Certainly, the Chagossians who have been in touch with me are desperate to be seen as citizens; they do not want to come through some intricate way of dealing with the Immigration Rules—that is not what they are seeking.

I am sorry that the Minister has not addressed the key issues here. The noble and learned Baroness, Lady Butler-Sloss, described successive Governments as demonstrating “disgraceful behaviour”. As the noble Lord, Lord Horam, said, we all, in terms of our political parties—not the Green Party, but all the others—have responsibility here. This is our opportunity to put this injustice right. I wish to seek the opinion of the House.

[Lord Mackay of Clashfern (Con)]

My Lords, the Minister has said that he would take it back. It may well be that if he takes it back—

[Noble Lords]

No!

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, I shared the concerns expressed by my noble friend Lady D’Souza about Clause 9 as it was originally drafted. However, I am very satisfied with the amendments tabled by my noble friend Lord Anderson, particularly as the exercise of these powers is subject to the control of the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Bennett, that this is not to have trust and faith in the Home Office. Whether or not that is justified, I have trust and faith in the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Warsi, that this is not a compromise or papering over the cracks. Rather, this is a great tribute to the noble Lord, Lord Anderson, and to the work done by the Minister: it is to achieve the protection of both the public interest and the rights of individuals. This is what this House should be aiming to do.

[Lord Mackay of Clashfern (Con)]

My Lords, I had the honour, with the then Leader of the House, to present to this House the 1981 Bill which became the Act. We certainly understood that it was a very drastic power which enabled citizenship to be taken away. Therefore, it was only right that notice should be required, and provided for, in Section 40(5) of that Act. It included the need to make clear to the person affected that the application was on. It used the last known address as a possibility. However, the more that difficulties arise, the more it is seen that something further is required. Therefore, it is right that Section 40(5) should be amended. I think that the amendments, as now proposed—and subject to the amendments of the noble Lord, Lord Anderson of Ipswich, if, as I hope, the Government will accept them—are an acceptable way of dealing with this very delicate matter.

I agree entirely with what the noble Lord, Lord Pannick, said, that the real and ultimate protection is in the independent judicial review by the special court for that purpose. It is essential that, as this nation is subject to many different ways of being attacked, we should be protected as much as possible. This is a very sensible way to do it, provided that the Government are prepared to accept the proposal of the noble Lord, Lord Anderson of Ipswich.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I spoke in Committee and, obviously, after two and a half hours then and 50 minutes now, one is in danger of ending up with—in that famous phrase of the football manager—a sense of déjà vu all over again. I will try to avoid that and just raise a couple of points.

I listened very carefully to what was said by the noble Baronesses, Lady D’Souza and Lady Bennett, and the right reverend Prelate—and I am not a lawyer. I also listened again to my noble friend Lady Warsi—having heard her passionate speech at the earlier stage—and the noble Baroness, Lady Mobarik. I did not see the provisions of Clause 9 as an attack on people, and particularly not an attack on a particular part of our community. I saw the clause as a defence of the values that tie us all together and the glue that binds our society: the tolerance, freedom of speech and economic opportunity that has brought people to this country over the years, some more recently than others. That has been the essence of the attractions that have brought people here.

However, I was extremely concerned, and pointed out in Committee, that there was a gap in the arguments using the phrase

“conducive to the public good”.

I was worried about that, but I said—and still believe—that there is a need for the Government to protect the citizens of the country and that that is the overriding proposition we need to follow. Do I find the issues of Clause 9 easy? I do not. Do I wish we did not have to have Clause 9? I do so. But there are evil people about and wishing will not make it so. I thought in Committee, and still think now, that the underlying purpose of Clause 9 is right.

I pointed out in my speech then that, without the informed consent of the population of the country, the respect for and the importance of the rule of law become undermined. The travellers on the Clapham omnibus would regard some of the issues that have been raised this afternoon—such as having to send a courier into an extraordinarily dangerous country and put his or her life at risk—as a perverse outcome.

I recognise that there is a gap. I said that I hoped there would be some opportunity for smoothing some of the sharp edges in Clause 9 as originally drafted. As a non-lawyer, it seemed to me that the amendment from the noble Lord, Lord Anderson, answered the points that were made. Can it answer all the points? No, but it answers them effectively. It seems to provide a means to smooth the corners or close the gap—whichever metaphor you wish to use.

I would support the Government, whatever happened, as I think the underlying purpose of Clause 9 outweighs the disadvantages. However, I hope very much that my noble friend will be able to see the advantages of the amendments from the noble Lord, Lord Anderson, and will be able in that way to make the compromise that I think makes the argument unanswerable.

Police, Crime, Sentencing and Courts Bill

Lord Mackay of Clashfern Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness Newlove (Con)]

My Lords, I thank the noble Lord, Lord Russell, for tabling this amendment. I praise the tireless work of the noble Baronesses, Lady Royall and Lady Brinton, in this area. I am delighted to put my name to the amendment because of the work of Laura Richards, who has also worked tirelessly. Even though she is not in the UK, she still works tirelessly on podcasts, which I suggest that everyone listens to; they are brilliant in the stories that they cover, but it is very sad to hear the journeys that some women go through.

I will not add much more to what my colleagues have said. Stalking, on its own, is horrific. I really welcome what we now have on domestic abuse stalking and I thank the Minister for the conversations we have had. However, it scares me that this piece of legislation has been left to wander in the fields again. I feel we have taken 10 steps forward and 50 back. Listening to victims of this horrendous crime in my former role as Victims’ Commissioner—victims I am still listening to—I know that the problem with stalking is that you cannot see it. If you had a scab on your hand and we could see it, we could then do something tangible. Stalking is horrific and coercive, both mentally and physically.

When we look at amending and putting this legislation into place, the default is that we must train better. Now we are asking that we have a standard of training for non-domestic abuse stalking. I believe that every word from the noble Lord, Lord Russell, and the noble Baronesses, Lady Brinton and Lady Royall, adds to the quality of what this training should be. Unfortunately, if a stalking victim phones up, it will not be the first time; they will be at the end of their tether. In society and under Governments past and present, we have waited until somebody is murdered brutally—taken. That should not be the case, as the horse has already bolted.

I ask the Government to look at this again: please put this national strategy for non-domestic abuse stalking right next to domestic abuse stalking. Then it will not be piecemeal and all these agencies will fully get what happens to victims of stalking.

[Lord Mackay of Clashfern (Con)]

My Lords, the first Bill I can remember that dealt with this subject did so under the name of “harassment”. That was before 1997. This whole evil has grown extraordinarily since then. I am not aware of any real analysis of the reason for that exponential growth, but it is certainly important that the people who have to deal with it understand what is involved. Unless and until that is developed fully, the problem will probably continue to increase.

In the list of people in this amendment, I do not see mention of the judiciary. Does the noble Lord, Lord Russell, have it in mind? Obviously, judges have to understand lots of different things that come before them and the judicial training system has been developed very much over a number of years. It is very effective. If it is intended to include the judiciary, it would be very advisable to say that, because the judicial training system would take account of that and, no doubt, as he said, look for the resources required to do it properly.

[Lord Coaker (Lab)]

My Lords, I add our strong support for this amendment. I pay tribute to my noble friend Lady Royall, the noble Lord, Lord Russell of Liverpool, and the noble Baronesses, Lady Newlove and Lady Brinton, along with many others, for their tireless efforts and leadership on this issue and their informative and inspirational words this afternoon.

The crucial point is that stalking is an offence that escalates. Victims and their families are being let down to an extent by the failure to recognise the seriousness of this crime—although, to be fair, that is improving—and the failure to manage serial and dangerous offenders. This Chamber has supported stronger action to tackle stalking perpetrators and protect victims in multiple pieces of legislation over the past few years, yet we find ourselves having to raise it again.

As the noble Lord, Lord Russell, pointed out, the amendment is a fairly moderate ask. Having said that, it is exceptionally important; it will make a huge difference to ensure that those interacting with stalking victims and investigating these offences have specialist training. The Minister should accept it and the Government should go even further in tackling this vile, criminal behaviour, on which the whole Chamber is united.

Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021

Lord Mackay of Clashfern Excerpts

Tuesday 12th October 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Baroness for tabling this regret Motion for debate today. It brings the House back to the detailed, thoughtful and vital discussions which were held on what is now the Act during its passage earlier this year.

The first priority of any Government, and of this Opposition, is to ensure the safety and security of our communities. We pay tribute to those who serve honourably and put themselves in harm’s way to protect us, and to prevent and disrupt serious criminal activity. The Act addresses the necessary, though difficult, use of covert human intelligence sources to combat serious crime. The key purpose was to place the authorisation of CHIS activity on a statutory footing, where previously there was not that underpinning. The version of the Act which was passed was not the draft that a Labour Government would have passed but we did support it, as urgently needed legislation which created that statutory footing and contained some improvements on the status quo.

I recognise the significant contribution that this House made to improving the Act as it passed through Parliament, including securing extra protections for children and vulnerable people, ensuring access to compensation for innocent victims, and increasing oversight mechanisms. I pay particular tribute to the noble Lord, Lord Anderson of Ipswich, for his work on securing notification of all authorisations to the Investigatory Powers Commissioner, providing real-time oversight by the IPC.

The order about which today’s Motion is tabled makes a series of changes in secondary legislation which are consequential to the Act. They include: updating requirements to keep records of authorisations granted under the Act, extending some existing safeguards on matters subject to legal privilege to the new authorisations, and updating the designations of the rank of a person able to grant an authorisation with a public authority. Here I should say that I listened with great interest to what the noble Lord, Lord Paddick, said about the relative seniority of police officers needed for particular authorisations. I look forward to the Minister’s response to the questions which he raised.

The Motion, however, deals with a wider issue which was debated as part of our deliberation on the then Bill. During its passage, colleagues from across the House sought a wide array of improvements to the Bill. The Labour Party particularly sought for the Government to look seriously at the possibility of prior judicial authorisation as a gold standard. We also tabled amendments in the Commons and supported amendments in this House, including those tabled by the noble Baroness, Lady D’Souza, on the key issues raised in today’s Motion. These were changes which would have put explicit limits on the type of activity that could be authorised on the face of the Bill itself. As a House, this was one of the issues we sent back to the Commons for further consideration, although we were ultimately unsuccessful.

The Human Rights Act is a proud achievement of the previous Labour Government. It provides safeguards to this Act and to all public authorities that take action under it. Adding explicit limits to the face of the Bill would, though, have provided clarity and reassurance, and positioned the protection of human rights as an integral part of this package. But as the noble Lord, Lord Paddick, said, this argument was had and lost when the Bill was before Parliament.

As has been well rehearsed, the inclusion of limits has been modelled by countries which are our allies and have similar judicial systems to ours, and with which we co-operate on security matters: Canada is the obvious example, a point made by the noble Baroness, Lady D’Souza. While those countries are able to do this, these Benches and our Commons colleagues remained unconvinced by the Government’s argument that we could not.

I will be interested to hear the Minister’s response to the questions put to her by noble Lords across the House today, particularly on what ongoing monitoring there will be of the operation of the Act and whether amendments of any kind are required. Specifically, will oversight of the Act be led by the IPC’s oversight of the practical arrangements? Presumably, any concerns which could be raised will be addressed by the IPC.

[Lord Mackay of Clashfern (Con)]

My Lords, it is worth reminding ourselves that the original Bill contained a restriction in relation to the Human Rights Act. The person operating under this Bill with authority will operate on behalf of Her Majesty’s Government and will therefore be bound by the authority of the Human Rights Act in relation to the activities which they can undertake. That is an important consideration which was raised in the debate on the Bill.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the CHIS Act was the final Act on which my right honourable friend James Brokenshire and I worked. I know noble Lords will agree on several aspects of how we worked; we engaged extensively across both Houses, and we saw compliance with the Human Rights Act as central to the Bill—as my noble and learned friend Lord Mackay just mentioned—and safeguards as incredibly important to it. As an earlier speaker said, it puts beyond legal doubt the deployment of CHIS for criminal activity.

The SI on which the noble Baroness bases her Motion to Regret passed unopposed and, as the noble Lord, Lord Paddick, said, is not in scope of this Motion. That aside, noble Lords will recognise some of the points I am about to make from the extensive debates that took place when the Covert Human Intelligence Sources (Criminal Conduct) Act passed through the House earlier this year.

The passage of the Act provided significant opportunity for noble Lords to discuss and put forward amendments to the oversight regime for this power. Noble Lords will recall the collaborative approach we took in responding to the amendments. That included strengthening the oversight of the activity by accepting the amendment from the noble Lords, Lord Anderson—I join the noble Lord, Lord Ponsonby, in paying tribute to him—Lord Rosser and Lord Butler, and my noble and learned friend Lord Mackay, which provided real-time independent oversight of every authorisation by the Investigatory Powers Commissioner. We have a robust oversight regime in place with significant internal and external safeguards to make sure that every authorisation is necessary for and proportionate to the purpose for which it is sought.

The noble Lords, Lord Paddick and Lord Ponsonby, talked about the seniority of authorising agents. They must be appropriately trained, as I said during the passage of the Bill, and of the necessary rank. Public authorities all have their own training processes in place for their authorising officers to reflect the specialist remit in which they operate. IPCO will identify whether any public body is failing to train and assess its officers to the sufficiently high standard necessary for this very specialist type of activity.

The other matter, raised by the noble Baroness, Lady D’Souza, and referred to by the noble Lord, Lord Ponsonby, was limits and, following on from that, practices in other countries. We debated this point extensively during the passage of the Act and voted on it but let me again state that the limits on what could be authorised under the Bill are provided by the requirement for all authorisations to be necessary and proportionate and for authorisations to be compliant with the Human Rights Act. Nothing in the Act seeks to undermine these safeguards and every authorisation will be considered by the independent Investigatory Powers Commissioner, who will be able to ensure that this is always the case. However, on numerous occasions we went over the point that to explicitly place limits in the public domain risks creating a checklist for terrorist organisations to test for suspected CHIS and doing so would put not only the safety of the public at risk but the safety of the CHIS.

In response to the concern that the Government are seeking to repeal the Human Rights Act, let me be clear that the Government are committed to human rights and will continue to champion them at home and abroad. The Government remain a signatory to the ECHR, which provides for the right to life and the prohibition of torture or inhuman or degrading treatment or punishment. The requirement for an authorisation to be necessary and proportionate further limits the activities which can be authorised under this Act.

To address the point made by the noble Lord, Lord Ponsonby, regarding the comparative position in other jurisdictions, it is unhelpful to compare the UK legislation with that of other countries because each country has its own unique laws, public authorities and, crucially, threat picture. We know that CHIS testing takes place in the UK, particularly in relation to the unique challenges that we face in Northern Ireland, and it is important that we legislate for the particular circumstances in which we need our operational partners to operate in order to keep the public safe. I emphasise that our advice on this issue is based solely on the advice of operational partners, and I hope that noble Lords place the same weight that the Government have on their assessment of this issue.

The noble Lord, Lord Paddick, talked about the undercover policing inquiry and the separate recent ruling of the IPT. I have repeatedly made it clear to this House, as he referenced, that the conduct that is the subject of the inquiry was completely unacceptable and should not have taken place. It is never acceptable for an undercover operative to form an intimate sexual relationship with those whom they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it ever be used as a tactic of a deployment. Nothing in this Act changes that. The noble Lord quoted from the IPT’s judgment that the authorisations made under RIPA were fatally flawed, but the court did not find that the entire CHIS regime under the Regulation of Investigatory Powers Act breached article 8.2 of the ECHR. It invited the UCPI to draw its own conclusions. The tribunal is still to hold a remedies hearing in light of the findings.

There are now much more stringent safeguards in place to guard against these mistakes being repeated. In 2014, the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 came into force. The order applies enhanced safeguards to authorisations for long-term undercover operatives from policing or other law enforcement agencies. This includes a higher rank of authorising officer than for other CHIS and greater oversight by the Investigatory Powers Commissioner.

To answer the question asked by the noble Lord, Lord Ponsonby, all the changes were brought about to address specific concerns that were raised about law enforcement undercover deployments. They have been tested in the operational and judicial environment over the last six years and we think that they are robust and fit for purpose.

Domestic Abuse: Older People

Lord Mackay of Clashfern Excerpts

Wednesday 14th July 2021 Lords Chamber

[Baroness Williams of Trafford (Con) [V]]

My Lords, I was pleased to be able to speak to the commissioner in Wales. I think it is always advantageous to learn from good practice elsewhere. We know that the number of older people experiencing domestic abuse has increased in the last year. The Crime Survey for England and Wales shows that 5.5% of adults aged 16 to 74 experienced domestic abuse in the year ending March 2020. But I look forward to seeing more refined figures in the future, which I think is what the noble Baroness is alluding to.

[Lord Mackay of Clashfern (Con)]

My Lords, do the Government have a plan for the effective monitoring of this type of abuse?

[Baroness Williams of Trafford (Con) [V]]

I thank my noble and learned friend for his question. There are various ways in which we can monitor this sort of crime. I have mentioned the Crime Survey for England and Wales. We have the National Domestic Abuse Helpline and of course we have police figures as well. So there are numerous different ways of measuring this.

Undercover Policing Inquiry

Lord Mackay of Clashfern Excerpts

Wednesday 14th April 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

The cost to date is £36.2 million. The report to the Home Secretary is due before the end of 2023.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, will my noble friend say whether there is any mechanism to ensure that an inquiry as important as this will report in a reasonable time?

[Baroness Williams of Trafford (Con)]

My noble friend makes a very pertinent point because, of course, some of the inquiry goes back to 1968, so timeliness is very important. As members of the sponsor department of a statutory inquiry, both the Home Secretary and the Permanent Secretary have sponsorship responsibilities that are set out in the inquiries management statement. I have personally engaged with the chair in my capacity as sponsor to discuss the progress of the inquiry and stress the importance of learning lessons promptly.

Domestic Abuse Bill

Lord Mackay of Clashfern Excerpts

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I first came across the problem with which Amendment 1 deals when I was promoting the divorce Act in 1996 and I was assisted in great measure by my late friend Lord Jakobovits, who was then the Chief Rabbi.

The problem arises, as has been explained, for a person of the Jewish faith who is married and then decides to seek divorce. If she is female, she may get a decree of divorce in the English courts, but the Jewish law to which she feels bound requires that she cannot be divorced under that law without the agreement of her husband. Some husbands who have been divorced by the English courts decline to agree that the wife should be allowed to divorce under the Jewish law which they have both agreed to follow. In that situation, the husband is able to hold the wife into the marriage which she has made clear she wishes to leave.

The exercise of power by the husband is a controlling or coercive power within the meaning of Clause 1(3) of the Bill. Since they are both over the age of 16 and have been personally connected within the meaning of Clause 2(1)(a) of the Bill, it is clear that the husband is showing what under the Bill is described—and this will shortly become law—as domestic abuse towards the wife and therefore is subject to the remedies for her provided in the Bill. No distinct amendment is required in order to bring the wife into the situation where she can receive the help that the Bill will provide when it becomes an Act.

I agree that there is a problem which cannot be solved by us about a get having to be voluntary. The use of one of the remedies may be easier than another in that situation, but one thing I am sure of is that it does not do any good to alter the provisions in Clause 1 of the Bill by these amendments, at least in respect of everything except the Serious Crime Act—but I do not think it requires anything to be done in that place, either. Adding things such as “reasonable” and “unreasonable” and so on is a mistake and the proper thing to do is to leave Clause 1 as it is, because it undoubtedly carries with it the implication that the refusal of a get is domestic abuse.

[Baroness Deech (CB) [V]]

My Lords, the Ministers involved have done a great service by listening to the Members who have put forward these amendments. I am pleased to support all the amendments in this group, to which I have put my name.

By accepting the need to stigmatise husbands who behave unreasonably in not giving a get, the Government are sending a signal to spiteful men and to fossilised religious authorities that compassion and secular standards have to prevail. I support the noble Lord, Lord Palmer, in all that he has said about this. The ability to refuse a religious divorce provides abusive husbands with power to control and to subvert conditions relating to the divorce, by, for example, demanding that the divorce settlement be repaid. The refusal can have a grievous effect on a woman’s entire life. She may be prevented from remarrying while still of childbearing age and there is concern for the status of children that she may have in future.

I am not defending the religious law underlying this, and it is not confined to Judaism. Nevertheless, it is accepted by some women here, and by millions around the world, but it is time for the secular law principles to prevail, all the more so since from this autumn, we will have no-fault divorce, a system which does not allow the unwilling spouse to defend a divorce at all—it must be accepted. The guidance, which I hope will contain these provisions, is a good example of how British law manages to encompass a diversity of views within its system. A man who refuses a get unreasonably in the future may even be found guilty of a criminal offence of coercive and controlling behaviour, under the Serious Crime Act 2015, because this Bill clarifies that domestic abuse provisions apply to former couples, even after separation. Nevertheless, this provision would work more effectively as a threat than an actual imprisonment, because the get must be granted by the husband without direct coercion. The clarification in the statutory guidance which we hope for will mean that this is a good day for women and a step closer to equality in religious law.

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[The Deputy Speaker (Baroness Henig) (Lab)]

I call the next speaker, the noble Lord, Lord Winston. No? We shall move on, then, to the noble and learned Lord, Lord Mackay of Clashfern.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I have supported this amendment on the basis that it shows what the general definitions reveal and include. I do not think that it will be necessary to pursue it, if we have a clear understanding that the sort of behaviour that the noble Baroness, Lady Meyer, has described is covered by the phrase “controlling or coercive behaviour”.

There is another important definition that deals with children being used as weapons against their parents. It points out that activity towards a child may well be against the parent. Clause 1(5) says:

“For the purposes of this Act A’s behaviour may be behaviour ‘towards’ B despite the fact that it consists of conduct directed at another person (for example, B’s child).”


I am certain that there are a large number of cases in which one parent, using his or her relationship with the child, seeks to damage that child’s relationship with the other parent. It is a natural weaponising in a conflict, which is apt to come forward in this sort of fighting between parents. When they are antagonistic towards each other, they are apt to try to bring children to their side of the dispute, which strikes me as extremely dangerous.

I believe that the attempt to use one parent’s relationship to damage the children’s relationship with the other parent is an obnoxious type of controlling or coercive behaviour. I verily believe that, if allowed to persist until the end, you will get parental alienation, because the operation of trying to damage the child’s relationship with that parent ultimately succeeds. That is what alienation is: by that means, the child has been successfully cut off from the other parent’s company, love and support. As we show, the law as it stands includes that.

The reason for the amendment is to illustrate that that is so, simply to make it possible to have this debate on Report. There was a tremendous amount of debate in Committee suggesting that parental alienation should not be contemplated. Sadly, I fear that, if the conduct that we have described succeeds, it will continue to happen. The Bill already, properly, includes a definition that deals with the kind of behaviour that underlies attempts to alienate the other parent from their child.

I strongly believe that this broad definition should not be restricted. I felt that the addition of qualifications in other amendments restricted the wide definition presently in the Bill. That is important, because domestic abuse is a large area and the definition manages to encompass it with great success. Therefore, the reason for the amendment is to illustrate that the conduct in question is included in the definition. Once that is accepted, as I hope it will be, the amendment will not be unnecessary.

[Lord Lucas (Con) [V]]

My Lords, as one would expect, that was a fascinating contribution. In some ways, it answers a lot of my questions. I am completely behind the purpose of this amendment. To my mind, as someone who is experienced but not expert, there is nothing about the phrases in Clause 1(3)(c) and Clause 1(3)(e) that naturally covers alienation behaviour. If one were to describe this in plain English, neither of those concepts would comfortably accommodate controlling behaviour which by its nature takes place remotely. Once you have got into the business of alienation, the two parents, typically, are not together. It is difficult to see what element of control or coercion can be exercised by alienation or how, in the context of domestic abuse, the wide phrasing of

“psychological, emotional or other abuse”

could certainly be construed as covering alienation. I hope that the Government will make it clear to me and the public in general, by what they say and do outside the Bill, that alienation absolutely is covered. But I need to see that in clear and unambiguous terms.

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[Baroness Hollins (CB) [V]]

My Lords, the noble Baroness, Lady Stroud, has summarised some of the extensive research which associates abuse—including emotional abuse—of mothers during pregnancy with resulting poor outcomes for the child. What happens to children in utero may affect them for the rest of their lives and cause longer-term developmental delays and both mental and physical health problems, and may even lead to criminality.

My noble friend Lady Finlay has also pointed, quite rightly, to the role of alcohol. As the noble Lord, Lord McColl, suggested, opposition to Amendments 7, 8, 9 and 90 may be because the unborn child is not afforded the same rights as a newborn child. Indeed, an unborn child is bestowed with few rights, so it does not seem to make sense to include them in this Bill. Or, if the mother is the victim of domestic abuse, she will be in scope of the provisions of the Bill in any case, therefore the amendments would have little effect because the child affected by domestic abuse during pregnancy is not perceived as a victim.

It is important that we recognise the effects of domestic abuse on children, in order that we can intervene at a young age and act to mitigate some of the harms that will flow from domestic abuse. The Government’s amendments recognising this are welcome. However, in the same spirit and in the spirit of consistency, the scope of this Bill should include children in utero, because the rationale is much the same as for other children and it would be a significant blind spot to exclude them.

I turn now to Amendment 78 and the duty to provide therapy for new parents. I consulted my daughter, who is a psychiatrist specialising in parent/infant mental health. We know a great deal about the importance of early caregiver relationships on a child’s developmental trajectory, attachments and physical health. This amendment is about targeted early intervention and the mitigation of domestic abuse-associated future harms. All children need sensitive and responsive parents who are emotionally available and can help them feel safe and understood.

The priority for treatment is to treat, reduce and prevent parental conflict with accessible therapeutic interventions and practical support for families. Therapies and couple interventions to consider include video interaction guidance, child/parent psychotherapy, Hold Me Tight and OnePlusOne and, in complex situations, the NSPCC’s UK programmes, LIFT and GIFT. Family-based therapy with children should always be considered, when possible, although it is no replacement for other kinds of general parenting support. The noble Baroness, Lady Newlove, mentioned the importance of health visiting. This seems to be much less available today than it was when I had my children many years ago.

I strongly support all the amendments in this group and hope that they will bring new opportunities to really respect the Conception to Age 2 manifesto and work, and all the other initiatives concerned with the health and well-being of babies in utero and infants.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I strongly support Amendments 7, 8, 9, 78 and 90. We have heard the very informed opinions of my brethren, including the ladies, about the dangers that exist at the beginning of life, including the time that a child is in utero, from the effects of domestic abuse surrounding them.

It is very important to remember that the idea of putting something in guidance depends on whether it is already included in the statute. Guidance cannot extend the scope of the statute and I think that these amendments are really concerned with the legal necessity of having these beginning-of-life children in the statute. Therefore, I support them very strongly because I think it is generally assumed that they need to be looked after and that looking after them involves a degree of involvement that is essential for success.

[Baroness Armstrong of Hill Top (Lab) [V]]

My Lords, I am going to be very disciplined in this Bill—some people may say that that is a bit unusual for me—and speak only to those things that are not part of the criminal justice system. I am concerned that overall the Bill has been dominated by the criminal justice system, and most of the women I have worked with for many years want problems to be sorted before it is necessary to go to court, because things really have failed once it gets that far. That is why I was really pleased to support the noble Baroness, Lady Stroud, in these amendments, because they are about early intervention and, in terms of domestic abuse, about how we prevent it and how we break that cycle.

Operation Midland

Lord Mackay of Clashfern Excerpts

Thursday 11th February 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, over the past few years, we have learned many lessons about what went wrong in a number of those cases. As I said, IICSA continues its inquiry. I hope that nothing like this ever happens again.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, when this report was commissioned, was it done for the purpose of preventing a repetition of what had happened; to consider the possible discipline required as a result; or did it include both?

[Baroness Williams of Trafford (Con)]

My Lords, its primary focus was to learn the lessons of what went wrong during that period so that those mistakes would never be repeated. Obviously, the IOPC then declined to investigate further.

Domestic Abuse Bill

Lord Mackay of Clashfern Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 1st February 2021 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I welcome the introduction of DAPOs but believe that, in certain respects, clearer rules are required to ensure that they are used in a practical and proportionate manner. It is in this constructive—I hope—spirit that I have put my name to the amendments in this group.

The potential scope of a DAPO is extraordinarily wide. Under Clause 33, it may include any prohibition or restriction considered necessary to protect a person from the risk of domestic abuse, expressly not limited to what are referred to as the “examples” of non-contact, residence and tagging provisions in subsections (4) to (6). I remind the Committee that even the types of measure that can be imposed on suspected terrorists under the Terrorism Prevention and Investigation Measures Act 2011—TPIMs—are exhaustively spelled out in the Schedule to that Act. They include some measures that one assumes would never be imposed in the context of domestic abuse, but the contrast in approach is striking none the less. With such a powerful and open-ended instrument as the DAPO, it is important that we get the safeguards right.

Of course, it will sometimes be necessary to impose the DAPO without notice. Amendment 71 would ensure that those cases did not fall between the cracks and were brought back to court as soon as practical, and in any event within five days. That matters for the reasons given just now by the noble Lord, Lord Ponsonby, and more broadly because DAPOs are highly personalised and highly intrusive. Without the presence of the person against whom the order is made, no one can be sure that the most effective and appropriate DAPO will have been arrived at first time around. Indeed, Clauses 31 and 34 acknowledge the principle that, if DAPOs are to be effective, they must be suitable and enforceable having regard to such matters as the work and educational commitments of their subjects, any other court orders or injunctions which may apply to them, and the interests of other persons including children.

As to Amendments 72 and 73, I comment only that in my days as a Crown Court recorder, it was axiomatic that one did not impose a positive requirement, such as a drug or alcohol rehabilitation order, or a mental health programme, in the absence of the intended subject of that requirement. These interventions are costly and, if they are to be effective, they require not just the presence but the consent and indeed the commitment of the subject. I have strayed there into Amendment 81, which we will come to shortly.

Self-evident as these matters may be to some, there is an advantage to putting them clearly in statute so that magistrates and their clerks are in no doubt as to the position. The amendments in this group are particularly compelling to me because they are supported by the Magistrates Association and by the noble Lord, Lord Ponsonby, in his capacity as a magistrate with current front-line experience. I hope that the Minister will look favourably on them.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I support all the amendments in this group; I put my name to the ones that I thought were more appropriate for me but I agree with them all. As the noble Lord, Lord Anderson of Ipswich, has said, it is of course true that these amendments are supported by the Magistrates Association. My reason for supporting them, apart from the fact that I am convinced that they are right, is that they come from the Magistrates Association, of which I had the honour to be president for almost 10 years. However, that experience is rather elderly and I am therefore very happy that these amendments are supported by an active, front-line, authoritative magistrate today.

[Lord Blunkett (Lab) [V]]

My Lords, we are doing very well this afternoon so I will try not to delay your Lordships’ House very long. As the noble Lord, Lord Anderson, said, one of the great advantages of being on the front line as a magistrate at the moment, as in the case of my noble friend Lord Ponsonby, is that you literally have current hands-on experience. One of the burdens you carry as a former Home Secretary—including one who had what is now the justice ministry under that umbrella—is that you ask yourself, “What would I do if I were the Home Secretary today?”

My response would be something like this. The amendments are logical, rational, humane and very difficult to argue with, but the one relating to a five-day timeframe is in the present circumstances unrealistic. We currently have a backlog of 64,000 outstanding cases, including many people on remand. We have a justice system that has been described in this House over recent days as being “justice delayed, justice denied”. I do not think it is realistic to specify five days, although there should be a timeframe within which the response is required in court with the person present.

That leads me to the second element. I want to come back and speak on Amendment 81 but, for now, I will just reflect. When I had responsibility for drugs policy, I was very clear that you needed the consent and commitment of the individual if they were to be offered treatment as opposed to punishment. However, when you offer people a positive road forward and require their genuine commitment to taking that up, you also need a fallback position when they do not do so. I hope that the Minister, when she responds, will be able to reflect on how we might meet the genuine rights of individuals in this case, with the imperative not to be taken for a ride.

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[Lord Mackay of Clashfern (Con) [V]]

I support these amendments, which are supported by the Magistrates’ Association, because it is very clear that they will have taken the view of a number of experienced magistrates in what they have formulated. It is in the nature of this order that it is an interim order, because it is made on the basis that it will be reconsidered after the representations, if any, that the respondent makes. It is essential that in due course an opportunity is given for that as part of the order. In due course, as we suggested in a previous group of amendments, it will be modified to five days and that is going to happen. Therefore, it is an interim order in its nature, even if it is not called that in these proposals.

It is important to note that this application continuation will take place in a hearing which will normally be extremely short. It will not be in the same set of court cases involving any kind of substantial and long hearing and is not likely to be very much affected by the present situation with regard to criminal cases.

The noble Lord, Lord Blunkett, mentioned being taken for a ride. It is also possible, at least with some of these orders, that a person may be very willing to take it on. I had experience, a long time ago now, of a case in which a young mother in Glasgow undertook to attend a very good programme for dealing with addiction. I am certain that she was determined to go through with it, because it was much better than having a sentence which might involve separation from her child. However, I learned some time after I had made the arrangements with her and got her fervent consent, that she had left the programme. That can happen, not as a deliberate act, but as a consequence of the power of addiction to alter a person’s will at a particular time.

I support these amendments and I am glad that they are supported by an active and leading magistrate who has current experience of these matters.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have put my name to Amendments 81, 83 and 84. I addressed Amendment 81 when speaking to Amendments 72 and 73 in the last group. The Minister suggested in response that there were certain circumstances in which it might be appropriate to impose a drugs or alcohol rehabilitation order, or a mental health disposal, without the commitment, consent or even knowledge of the intended subject—at least, I think that is what he said. I should be interested to hear him elaborate on the sort of circumstances he has in mind.

As to the proposal of a statutory time limit in Amendments 83 and 84, I endorse what the noble Lord, Lord Ponsonby, has said from experience about the practice in comparable contexts, and what the Magistrates’ Association has said about the desirability of allowing the court to put in place review hearings if appropriate. I will add one or two further points.

Clause 36(5) recognises that an electronic monitoring requirement should be authorised for no more than 12 months, yet there is no time limit on the other provisions of a DAPO despite their unlimited range. I expect the Minister will refer to the right of a person to apply for the variation or discharge of a DAPO under Clause 42, but that is a haphazard safeguard and one that the Bill itself acknowledges is not sufficient where tagging is concerned. Something more is required, and I suggest that the amendments provide it.

Finally, there also seems to be force in the other amendments in this group. The case for Amendment 86 in particular seems unanswerable. I know from our time together at the Bar that the Minister is more than capable of rising to any occasion, but I hope that in relation to this group he will find at least some of the amendments to be uncontentious.