Crime and Policing Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Thursday 5th February 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise briefly to support the amendment in the name of the noble Baroness, Lady Chakrabarti, and the noble and learned Baroness, Lady Butler-Sloss.

It is important to recognise the very important point made by the noble Lord, Lord Bailey, in relation to the problems of gangs in London, but I do not believe that that should be the reason why we should not make a change.

There are three things one can say very quickly. First, the noble Baroness, Lady Chakrabarti, has dealt at length with the enormous improvement in understanding the development of the mind and the enormous scientific advances that have been made. Across the criminal justice system, we generally are very bad at adapting to science.

Secondly, it is right to pay tribute to the Youth Justice Service across England and Wales. It has improved, and we now deal with youth crime and young people in a much more humane and civilised manner than we did 20 years ago. The number in places like Feltham has fallen enormously, and thank goodness it has. I do not know how many of your Lordships have been there, but it is a terrible place, and you do not want to send people there, particularly young people.

Thirdly, this was an issue I looked at when chairing the Commission on Justice in Wales. I must tell the noble Lord, Lord Hanson, that he is not to worry: I am not making a devolution point now, but I will come back to that at Report. However, I will say that the commission that examined this issue was firmly of the view that the age of criminal responsibility should be raised to 12, having heard a lot of evidence. It seems to me that this is something we cannot kick into the long grass again. We must recognise change, and we should make it now.

[Lord Hacking (Lab)]

The noble and learned Lord may recall from his days at the Bar that the juvenile courts were very sensitive to their role; that the judge and the counsel did not wear wigs; that the young offender was not kept in the dock, but was placed alongside his lawyers, and so forth. So we have, stretching back a long way, been very sensitive when trying juveniles.

[Lord Thomas of Cwmgiedd (CB)]

We have indeed.

[Baroness Brinton (LD)]

My Lords, as a former trustee of UNICEF, I rise to support Amendment 469, so clearly presented by the noble Baroness, Lady Chakrabarti, and signed and spoken to by the noble and learned Baroness, Lady Butler-Sloss. Internationally, the minimum age of criminal responsibility is recognised as 12, and UNICEF has always been clear that it should be 14. I heard what the noble Lord, Lord Bailey of Paddington, said, and understand his concerns about the very large number of young people and children being groomed and pulled into criminal gangs. He is right to say that we need more concerted support in terms of police, education and youth work intervention, but it is not the children’s—younger children’s—fault that they have ended up there. The noble Lord, Lord Hacking, and the noble and right reverend Lord, Lord Sentamu, recognised that heinous crimes needed to be marked in a certain way, but both also commented on the fact that we needed to understand that these were children. I am really grateful for the comments of the noble and learned Lord, Lord Thomas of Cwmgiedd.

Your Lordships’ House has been discussing this for many, many years and as the noble and learned Baroness, Lady Butler-Sloss, said, she was campaigning on this long before she came into Your Lordships’ House. Now is the time; we need change. We need to do that because there is so much evidence now.

In 2011, Nicholas Mackintosh, who chaired the Royal Society study on brain development, told the BBC then that there was

“incontrovertible evidence that the brain continues to develop throughout adolescence”,

and that some regions of the brain, responsible for decision-making and impulse control, do not mature fully

“until at least the age of 20”.

That Royal Society report cited the

“concern of some neuroscientists that the … age of criminal responsibility in the UK is set too low”.

We are still discussing it today.

UNICEF’s view is that 14 should be the minimum age, using scientific research as a base, but it is very specific that no country should have the age below 12. This places England, Wales and Northern Ireland in breach of the UN Convention on the Rights of the Child, which is bad enough, but the real problem is a court system that assumes that children have capacity to make decisions when all the research shows that that is not reliable. It is wrong for a Government to assert that any interference with a child’s human rights can be justified.

UNICEF says in its excellent guidance note on youth offending published in 2022, that children under the minimum age of criminal responsibility,

“should not be considered (alleged) child offenders but, first and foremost, children in need of special protection”.

It says that offending behaviour by such children

“is often the result of poverty, family violence and/or homelessness … their involvement in offending behaviour is an indicator of potential vulnerability that has to be addressed by the social welfare system. Special protection measures for children … should address the root causes of their behaviour and support their parents/caregivers. The measures should be tailored to the child’s needs and circumstances and based on a comprehensive and interdisciplinary assessment of the child’s familial, educational and social circumstances”.

That matches the advice of the medical specialists too. Frankly, it is time that the Government stepped up and took the brave decision that we need to recognise that we are out of kilter with the rest of Europe and, frankly, most of the world.

Prosecuting children and holding them in young offender institutions does not give them the time and space to learn how to live their lives differently. We have heard from both the noble and learned Lord, Lord Thomas, and the noble and learned Baroness, Lady Butler-Sloss, about how the arrangements work for children in specialist secure accommodation. We can still use those systems but without giving children the label of being a criminal when, clearly, they are not capable of making the right decisions.

I am really grateful to my noble friend Lord Dholakia, who has been campaigning on this particular issue for decades before he came into your Lordships’ House in 1997. His Private Member’s Bill in 2017 resulted in a wide public discussion. It is a shame that, nine years on, we have not progressed further. Let us do so now.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, I add briefly to this debate. When the matter came before your Lordships’ House with the passage of the CHIS Bill towards the end of 2020 and beginning of 2021, whether to move from the use of CHISs and their conduct being looked at ex post facto to it being looked at in advance was hotly debated. It is a difficult subject to debate in an open Chamber. We all accept that CHISs are necessary, but it is impossible to go into the details of those cases here. Further, it is important to concentrate not on what happened prior to 2020, although such cases are illustrative of the abuses that can occur; we are concerned with what has happened since 2021 and how well the Act is working.

As things stand at present, I cannot really add much to what the noble Baroness, Lady O’Loan, has said. My experience of this area of CHISs is that we have learned an enormous amount from Northern Ireland. We ignore at our peril what the judiciary and those who have experience of Northern Ireland tell us. That peril is that we need to be absolutely clear that the system we have of authorising when CHISs engage in criminal activity is subject to rigorous scrutiny. What disturbs me, and why I support the amendment from the noble Baroness, Lady Chakrabarti, is that the key to the new system was prompt, effective and detailed scrutiny, reported to the best extent possible, of the way in which the system is operating.

On what the noble Baroness has said, I have looked at these reports myself. They are necessarily vague—they have to be, because you cannot put the information into the public domain—but they are delayed. I hope that the Minister will look very seriously at this and maybe meet some of us so that we can see the reality. Is this system working? If it is not working, we must revert either to the old system or to what is proposed in this amendment. It is key to public confidence in the police that we do not have a repeat of what happened in the matters that are the subject of the inquiry that has been spoken about—though this amendment has absolutely nothing to do with that—that the CHISs operate properly, and that anything that goes wrong is properly dealt with. We cannot have another scandal on the scale of that which has been investigated for the past 10 or 12 years—I have lost count of time.

This is, therefore, a matter where the amendment put forward by the noble Baroness really should be investigated. I hope that the Minister will look very seriously at it. I had long discussions during the passage of the Bill in 2020 to try to ensure that we had a good system. At present, on what is available, there is no real democratic accountability and no independent scrutiny of it. We must have that, if public confidence in the police is not to suffer the kind of problems that it suffered, into which the inquiry is going on, in relation to pre-2020 events.

[Lord Hacking (Lab)]

My Lords, I am so glad that the noble and learned Lord, Lord Thomas, and the noble Baroness, Lady O’Loan, have participated in this debate. Like myself, they attended the recent meeting chaired by my noble friend Lady Chakrabarti. It was very nice to hear from the noble Baroness, Lady O’Loan, the admiration for the courage of the witnesses who came to speak to us at that meeting.

In any form of covert human intelligence, there has to be deception. It is the only way that the officer of the state, whoever he or she may be, can penetrate through to get the confidence of the criminals who they are there to investigate. But there should be, as my noble friend Lady Chakrabarti says in her amendment, some restraint in what they get up to.

When the noble Lord, Lord Jackson, got up, he started by saying that he opposed this amendment, but it was pleasing that, by the end of his speech, he was quite neutral. That was very reassuring.

My noble friend Lady Chakrabarti referred to the 2011 case of R v Barkshire, which concerned an undercover police officer infiltrating a group of climate change activists. The police officer, who I will not name, indulged in a sexual relationship, for about seven years, with one of the ladies involved. It also involved the birth of a child. This police officer, according to my brief, had as many as 10 other sexual relationships during the course of his activity as an undercover officer. When it came to the court, it was said that he went “much further” than the authorisation given to him, and that he played

“a significant role in assisting, advising and supporting … the very activity for which these appellants were prosecuted”.

That is why my noble friend—I hope she notes that I am giving her full support in this amendment—is absolutely right to suggest that there should be restraint. I accept entirely the restraint which is contained in Amendment 470.

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[Lord Hanson of Flint (Lab)]

The noble Baroness tempts me to go into areas of the inquiry, which I will not do. The inquiry is looking at historical abuses, which we have recognised and which are appalling. In the meantime, there have been legislation and improvements by policing in the management of covert operations. I am giving the noble Baroness that assurance now that we believe there are improvements in that management but things that need to be looked at in relation to the previous operation.

The legislation that the noble Baroness is seeking to amend has also put in place a range of measures as a whole. I say to my noble friend Lady Chakrabarti that I have made clear that CHISs cannot be authorised to entrap. This amendment would impose broad and unintended constraints on intelligence gathering by CHISs where criminal conduct is a factor—for example, by preventing CHISs going along with offences that they do not instigate. I have seen the product of that type of activity by CHISs. It is extremely valuable for crime prevention and for bringing people who are committing criminal or terrorist acts to the courts.

My noble friend’s amendment would also rule out the possibility of discrediting the subject of an investigation—for example, a terrorist organisation—in cases where it is equally important to do so. My noble friend has fulfilled her duty. She is challenging the Government on these matters. Self-evidently, we are in a better place than we were many years ago. I await with interest the recommendations of the John Mitting inquiry on undercover policing and whether there are further issues for us to examine.

I want to touch on two other points. The noble and learned Lord, Lord Thomas, sort of asked for a meeting. I am always open to meeting with Peers. In my tenure in this job, I have tried to meet with anybody who has asked. But in this case, given that there is an inquiry ongoing, it would be inappropriate for me to meet with him to discuss those matters now.

[Lord Thomas of Cwmgiedd (CB)]

I was talking not about the inquiry but about the level of supervision and what is happening in the reports under this Act. I entirely agree with the Minister that what happened in the inquiry has nothing to do with this regime. The inquiry is relevant only because it shows the horrendous consequences of not supervising the use of CHISs. All I was concerned to understand better was why there are problems with the reports being so slow and what problems are being encountered. You cannot put this into the public domain, but it would reassure, from the point of view of democratic accountability, if we saw what the problems were and whether there were other means—such as strengthening the code of conduct—to put it right. The peril here is the discrediting of the police five years down the line. That is what I am concerned to avoid.

[Lord Hanson of Flint (Lab)]

I hear what the noble and learned Lord says. Those are operational matters for the police, in my view, but we can make some judgments on that. I will reflect on what he has said and what he has requested, but my initial gut reaction—and I would like to trust my gut, on several occasions—is that it would not be appropriate to do that. I will reflect on what he said. I am trying to complete my remarks, but I see that the noble Lord, Lord Jackson, wishes to speak, and I will always give way to him.

Crime and Policing Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Thursday 22nd January 2026 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak briefly in support of the amendments, to which I have put my name. As the noble Lord, Lord Hain, has made such an eloquent speech in relation to youth justice, I will concentrate on the police because the arguments are identical. The reason I say they are identical is that the three commissions that have looked at this issue—commissions made up not of politicians interested in hanging on to power but of individuals who have experience and expertise in the systems—have all recommended the devolution of youth justice and the devolution of the police. The first was Sir Paul Silk, the distinguished clerk; then I chaired a Commission on Justice in Wales, which reported in October 2019; and then there was the report of Dr Rowan Williams and Professor Laura McAllister. All recommended the same thing.

In view of the pressing need for a debate to occur at 4 pm—it may be a minute or two early—I refer to paragraphs of the report that we wrote. The police are dealt with at paragraphs 4.77 to 4.151, and youth justice is dealt with at paragraphs 4.181 to 4.195. I give those paragraph numbers in the hope that someone in the Home Office might read them. One of the problems of the report that the commission I chaired submitted is that no one has ever answered it. I assume it has never been answered because it is unanswerable. It is therefore important, in the light of the forthcoming paper on the police, that this point is grappled with.

The two fundamental arguments have been outlined by both the noble Lord, Lord Hain, and the noble Baroness, Lady Smith. First, if you devolve everything else, you have to devolve police and justice. They are integral to the proper management of a system. Secondly, there is the democratic argument that if Wales is paying the greater part of what it costs, there should be accountability—certainly greater accountability than that enjoyed by the Mayors of Manchester and London. At the moment, the accountability is the other way around.

Where this is so important is that the view used to be expressed that the people of Wales really were not up to governing themselves. That was the 19th-century and early 20th-century view and, thank goodness, is gone. But now one asks: what is the argument against devolution? It is very difficult to see what it is. It will be a testing point as to what will happen on the publication of this White Paper.

The Government are abolishing police and crime commissioners. I express no view as to whether that is a good thing or a bad thing, but it forces the Government to grapple with what happens in Wales. Are they going to set up some elaborate structure to avoid devolution, or are they going to face up to devolution? We shall know the answer to this in the forthcoming White Paper. I hope that the Home Office officials, when they have read the paragraphs to which I have referred, will see that there is one unanswerable response to this question: devolution. On the other hand, if they set up some elaborate structure, no longer will it be said, “Well, the Welsh aren’t quite up to running their own police force”. It might be said, “There are other reasons why politicians don’t like giving up power in London. They want to hang on”. One has already seen reflected in remarks made in and across Wales that it is about time that these important powers were transferred to Wales to make the Government coherent, rather than hanging on to them and to power for what I hope I have wrongly understood—or been told—are purely party-political reasons. I hope that is not the case, but the proof will be in the pudding of the police White Paper.

[Baroness Brinton (LD)]

My Lords, we on the Liberal Democrat Benches are grateful to the noble Lady Baroness, Smith of Llanfaes, and the noble and learned Lord, Lord Thomas of Cwmgiedd, for tabling Amendments 433 and 434, and to the noble Lord, Lord Hain, for adding his name to Amendment 434. These amendments relate to the devolution of policing and youth justice to Wales.

My noble friend Lady Humphreys has signed both amendments as they agree with Lib Dem policy and our ambitions for Wales, but, unfortunately, she cannot be in her place today. Our manifesto for the general election in 2024 promised to:

“Deliver a fair deal for the people of Wales by … Devolving powers over youth justice, probation services, prisons and policing to allow Wales to create an effective, liberal, community-based approach to policing and tackling crime”.


To the disappointment of many in Wales, the issue of devolving justice to Wales was absent from Labour’s general election manifesto, despite Keir Starmer committing a year before, in 2023, to introducing a take back control Bill to devolve new powers to communities from Westminster. This commitment appears to apply to England only, and gradually, over the months since the election of the Labour Government, their lack of ambition for Wales has become more apparent.

After the State Opening of Parliament in 2024, there was no new mention of new powers for Wales in the King’s Speech. In July 2025, the noble Lord, Lord Timpson, said that the UK Government could row back on its promises on the devolution of probation and youth justice, despite the Welsh Government beginning the groundwork to prepare for what they believed to be a realistic project.

Noble Lords have raised queries about the consequences of the decision taken by the Government in November last year to abolish police and crime commissioners—a decision that those of us on these Benches applauded. At the time, noble Lords from Wales were concerned about the lack of clarity on the Government’s plans for the transference of the PCCs’ functions to Wales. The assumption was that the functions would transfer to mayors in England and to the Senedd in Wales. However, far from providing clarity, the answers they received amounted to pure obfuscation. Now we learn, in what could be described as a slap in the face to the Senedd, that the functions of the PCCs are to be transferred to a new board, placing the Welsh Parliament on the same level as a non-mayoral authority in England.

On these Benches we understand the difficulties so ably clarified by the noble and learned Lord in his contribution to the Sentencing Bill of devolving just one part of a system. But where has English Labour’s ambition for Wales disappeared to? For all the platitudes about mutual respect and co-operative working, the disrespect is beginning to show, sadly. Where is the recognition that Wales has been ready for the devolution of the justice system for the last 25 years at least, and where is the road map for our two nations to achieve that together?

--- Later in debate ---

[Lord Sandhurst (Con)]

My Lords, we oppose Amendments 433 and 434, which seek to devolve policing and youth justice to Wales. Let me be clear: I make no observations on the principle of devolution for its own sake, but these amendments would make profound constitutional and operational changes. They are presented without convincing evidence that devolution of policing or youth justice would improve outcomes for victims, communities or young people themselves.

Policing and youth justice are not isolated administrative functions—

[Lord Thomas of Cwmgiedd (CB)]

May I ask the noble Lord whether his staff have read the report that contains all the evidence? To say that this is put forward without evidence is not correct.

[Lord Sandhurst (Con)]

I cannot answer that from the Dispatch Box, I am afraid; nor do I have many staff.

Policing and youth justice are not isolated administrative functions. They sit at the heart of a single, integrated criminal justice system spanning England and Wales. Police forces operate across borders daily; so too with the criminal justice system. Intelligence sharing, counterterrorism, and serious organised crime and public order policing all rely on consistent legal frameworks, operational standards and accountability structures. Fragmenting those arrangements would introduce complexity, duplication and risk at precisely the moment when policing faces unprecedented pressures.

Policing in Wales is already delivered locally, is locally accountable and is responsible to Welsh communities. Police and crime commissioners in Wales set priorities based on local need. Chief constables in Wales are not directed from Whitehall on day-to-day policing. What is proposed is not so much localism but the creation of a new layer of political control over policing.

The amendments ask your Lordships’ House to place policing and youth justice under the control of the Welsh Government. This has been run by Labour continuously since devolution began. It is therefore legitimate to ask what that Government’s track record tells us about their capacity to take on these serious responsibilities. In area after area of devolved public policy, Labour-run Wales has failed to deliver. Educational outcomes in Wales have fallen behind those in the rest of the United Kingdom on many international measures. Health waiting times are persistently worse than in England. Major infrastructure projects have been delayed or mismanaged. Those are not ideological assertions; they are documented outcomes of more than two decades of one-party dominance and failure.

When systems fail in devolved areas, the response of the Welsh Government has often been to blame Westminster rather than to reflect on their own actions or inactions. If policing and youth justice were devolved, who would be blamed if and when crime rose, youth reoffending increased or serious failures occurred? Experience suggests that accountability would become more opaque, not clearer and more robust. Constitutional change should be driven by clear evidence of benefit, not by political symbolism. It has not yet been demonstrated how these proposals would reduce crime, improve public confidence or deliver better outcomes for young offenders; nor has it been shown that fragmentation would be avoided and how cross-border crime would be tackled more effectively, or failures remedied. For these reasons, we cannot support the amendments.

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[Lord Hanson of Flint (Lab)]

There are significant differences between the positions in Scotland and Wales. Scotland has its own legal system, prison system and policing system; it has had that for some time. In Wales, we have a very integrated England and Wales court system and a cross-border, east-west relationship. For example, the regional organised crime centre that services the area of north Wales where I live is a cross-border co-operation on a cross-border issue.

We have looked at the noble and learned Lord’s points and reports and, from my perspective, attempting to separate elements of the offender management system from the wider criminal justice system would in practice be extremely complicated. It would lose some of the economies of scale that we have in the current arrangements, and it would put a jagged edge on an entirely new and complex interface. I know that the noble and learned Lord has looked at those issues, but that is the view of the UK Government. The UK Government recognise the importance of Welsh partnership structures such as the Policing Partnership Board for Wales and the Police Liaison Unit, but ultimately the Government have no plans to devolve policing in Wales at this moment.

Noble Lords mentioned the decision announced on 13 November last year to abolish police and crime commissioners. We have put in that plan, and it will require legislation at some point to give effect to those proposals. There will be further discussion in the forthcoming White Paper on them, but we have committed to work with the Welsh Government and other stakeholders to ensure that new arrangements provide strong and effective police governance for Wales, while recognising the unique nature of those Welsh arrangements.

Having said that, on the Labour Government’s commitment that the noble Baroness, Lady Brinton, mentioned, we are working with the Welsh Government to undertake a programme of work on the Labour Government’s 2024 manifesto commitments around youth justice, which goes to the heart of one of the amendments tabled by the noble Baroness. In light of the manifesto commitment, we are trying to ensure that the youth justice system delivers effectively for the people of Wales. We are undertaking a programme of work to meet that aspect of the manifesto commitment, which meets in part the objectives of the noble Lords who spoke to these amendments.

I am conscious of time, and I am sorry that this is a speedy debate pending the debate that is due any moment now. We can return to this on Report, as the noble Baroness may do, but the view of the Government to date is as I have outlined.

[Lord Thomas of Cwmgiedd (CB)]

First, I do not want the Minister to answer this now, but I would be very grateful if he would look again at the funding for the police in Wales. Unless I am mistaken, Manchester and London do not have a Government who make a grant to policing as the Welsh Government do. Secondly, the argument has been put forward, but the arguments that we have put contrary to all this have never been answered—and I hope they will be answered in the police White Paper. If the argument is a good argument, it stands or falls by its strength. The Government in London have never had the courage—and those who seek political advantage have stood behind that lack of courage in failing to answer independent views that have been expressed.

[Lord Hanson of Flint (Lab)]

The Government will answer those questions, and they can make a very robust case for why devolution of policing should not happen. As I have said, we are exploring the issue of devolution of youth justice with the Welsh Senedd and the Welsh Government, and in the forthcoming police White Paper we will look at what the governance systems should be in consultation with the Welsh Senedd, police and crime commissioners and the police chiefs in Wales. That is a further debate. The noble Baroness has opportunities on Report to table amendments to get a fuller debate, and there will have to be legislation capacity at some point around the objectives set in the announcement on 13 November and in the forthcoming White Paper, which is coming very shortly. In the light of all that, and given the time that we have now, which is far too short to debate this in full—and I would like to do that at some point with the noble Baroness—I ask her to withdraw the amendment.

Product Regulation and Metrology Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Report stage
Wednesday 5th March 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I do not wish to add to the profoundly detailed and clear analysis that the noble and learned Lord, Lord Hope of Craighead, has given about the purpose of this proposed new clause; there are just three short points I wish to make.

First, we must look at the context in which this amendment has been put forward. The history of the creation of the internal market was not an altogether happy one, if I might put it mildly. The vision—and it was vision—particularly of the original part of the Conservative Government, to try to create common frameworks which would enable us to work as a co-operative union, has not been properly realised. The machinery to make devolution and the union work has really not been implemented. Finally on this, although this is not, as the noble and learned Lord, Lord Hope, has explained, the subject of the Sewel convention, let us hope that the spirit of the Sewel convention can be resurrected, both as regards what it should apply to—primary legislation—as well as delegated and secondary legislation.

Secondly, I thank the Government for the very fine words they have spoken in relation to making devolution work, and for the discussions they have obviously been having—with what degree of success one cannot tell from what is available—with the devolved Governments.

Thirdly, however, words are not enough. Men are judged by deeds, and I hope that this Government will show, in the amendments they intend to bring forward, that they really mean what they say about the union and devolution. One cannot underestimate the importance of action by deeds.

We are only just over a year away from important elections in both Scotland and Northern Ireland, and we must be clear when those countries go into those elections that the union is seen to be strong, and that devolution is seen to work. Both are vital for our future. That is what makes what might seem at first sight a technical amendment one of such importance.

[Lord Wigley (PC)]

My Lords, I intervene very briefly on this—as noble Lords would perhaps expect on a matter relating to devolution—in support of the amendment moved by the noble and learned Lord, Lord Hope, and supported by the noble and learned Lord, Lord Thomas.

The points that have been made are very relevant. Although it is in a minority of products within the whole economy that there may be derogations, changes or fine tuning needed to the circumstances in Wales, Scotland or Northern Ireland, in those areas—which include food, cultural and literary products—there is a range of products for which the linguistic dimension has in the past raised questions, when all this came under Brussels, as to what names were or were not acceptable on products in Wales.

There is a sensitivity to this. I have no doubt that the issues can be overcome if there is a mechanism for consultation, but if there is a danger of ignoring the possibility of things going wrong then things will go wrong. Now is the time to address these questions, and I am very grateful that this amendment has been put forward.

Product Regulation and Metrology Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 27th November 2024 Grand Committee

[The Deputy Chairman of Committees (Lord Ashton of Hyde) (Non-Afl)]

My Lords, I have been informed that we are not going to take the last group, and the Minister is confirming that. If anyone is waiting just for the last group, they should not, and they can go.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, it is an enormous privilege to have been in a position to add my name to these two amendments and to have listened to the elegant description of the way in which they are meant to work, as explained by my noble and learned friend Lord Hope of Craighead.

I come to them from a slightly different perspective. The new Government have brought into being a desire to make the union work as a union by co-operation between the Governments in London, Edinburgh, Cardiff and Belfast. Looking particularly to Cardiff, one would have hoped that this is an ambition capable of easy realisation. These clauses give one an opportunity to mark that stated aim in very clear terms. It seems to me that if one looks at what the two clauses have brought about, which my noble and learned friend has so elegantly explained, one sees that they touch on areas of devolved competence, without any doubt at all, and there are legislative consent Motions before the respective devolved legislatures.

There are two areas, as my noble and learned friend has explained. One is consultation. I have never understood why across the board in areas such as this consultation is not mandatory. The previous Government were not very good at that; they did not uphold it properly, I regret to say. I hope they will now see a changed way through, and I very much hope this Government will accept the first amendment on consultation. I can see no argument whatever for not accepting that change.

The second area, as my noble and learned friend Lord Hope, explained, is common frameworks. He has explained how it is necessary to make the amendment, but I hope there is also something to the amendment that will breathe life back to common frameworks. It is fairly useful to go back to what was said in the communique issued after the heads of Government meeting in 2017:

“As the UK leaves the European Union, the Government of the United Kingdom and the devolved administrations agree to work together to establish common approaches in some areas that are currently governed by EU law, but that are otherwise within areas of competence of the devolved administrations or legislatures. A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate”.


Those were lofty ambitions. Regrettably, and it is not the occasion to go into it now, those ambitions were not properly realised. I pay especial tribute to what my noble and learned friend Lord Hope did when the United Kingdom Internal Market Act was promulgated in obtaining the clauses to which he has referred. It was only by his skill, diligence and considerable persistence—I say with respect—that we got these amendments through. Unfortunately, if there is not the spirit of co-operation—I regret that such spirit was not there for a lot of the past two or three years, although it came back towards the end, particularly under Mr Sunak’s Government—we cannot begin to hope for the lofty ambitions of a union where the Governments work together being realised again.

I hope that, because we have referred to common frameworks in this legislation, we will see them coming back. Much has been said about the need for co-operation and working together, but I think these two amendments are important because it is often said that men are judged not merely by words but by deeds—one could put it in a more colloquial phrase. It seems that these two amendments, drafted in the Government’s words, are and ought to be the deeds by which the Government show that they really mean to go ahead and operate on the basis of a union where, in these areas of devolved competence, there is co-operation but within a framework that permits divergence. Therefore, I very much hope that the principle of these amendments will be accepted, because it is so important to the future of the union.

[Lord Fox (LD)]

My Lords, my noble friend Lord Foster will speak to his Amendment 102 in a few minutes, but it makes sense to follow the noble and learned Lords with my comments on Amendment 47 and the two amendments in my name, Amendments 93 and 96.

It is an enormous pleasure and something of a responsibility to follow two absolutely fantastic speeches on this subject, and I am afraid that my mind did go back to the long nights of the internal market Bill and the tenacity—as the noble and learned Lord, Lord Thomas, set out—of the noble and learned Lord, Lord Hope, in bringing his amendments forward, because a really important thing was eventually done there.

The noble and learned Lord, Lord Hope, referred to the danger of impinging on the devolved authorities. I will give just one practical example and this is not theoretical, because it is already something that the Welsh Government have raised. In their response, the Welsh Government concluded that

“there are relevant provisions in the Bill which, for the purposes of Standing Order 29, are within the legislative competence of the Senedd and therefore a Legislative Consent Memorandum (LCM) is required”.

I do not think that is disputed by the Government.

For example, the power within Clause 1(1)(a) could be used to reduce or mitigate risks presented by products that endanger the health of a person, distinct and separate from any risks to a person’s safety. The use of “health” in Clause 1(4) broadens the scope of how power could be exercised beyond simple product safety, which is a reserved matter, and enables provision to be made for public health purposes, which is an area within the Senedd’s legislative competence. This is just one example.

In their response document, the Welsh Government raise issues covering product regulations, product requirements, emergencies, information sharing, cost recovery, consequential amendment of certain Acts, interpretation, and the Schedule. Happily, the Welsh Government seem okay with Clauses 5 and 6, but the rest of the Bill forms a grey area around competence and responsibility.

Economic Crime and Corporate Transparency Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 27th June 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I am pleased to hear my noble and learned friend say that he has changed his position since we met in Grand Committee because I recall that, during those debates, he was strong in his view and mildly critical of those of us who had brought forward amendments.

I have two amendments in this group, Amendments 125H and 125J. I will speak to them but, before I do, I join my noble and learned friend Lord Garnier in welcoming the amendments tabled by my noble and learned friend the Minister. I am very pleased to see them; they go a long way to addressing the concerns that my committee—I declare my interest as chairman of the Communications and Digital Select Committee—has raised in our hearings on this topic over the past 12 months. As has been acknowledged, those amendments are confined to economic crime but that is because this is a Bill about economic crime, so I am happy to accept them as far as they go.

None the less, I want to highlight something that my amendments, the same amendments that I tabled in Committee, refer to—the power of deterrence with regard to the solicitors who represent those who bring forward these forms of legal action. I listened very carefully to my noble friend Lord Faulks introducing his amendment. Unlike my noble and learned friend Lord Garnier, I find his arguments quite compelling, but at this point I am pleased with what we have here. The importance of deterrence and the link between the Solicitors Regulation Authority’s new fining powers, the tactics employed by those who bring SLAPPs and the new dismissal mechanism are where I want to focus my comments.

As we have heard, the Government’s amendments bring much-needed legal clarity about the definition of a SLAPP case. The new strike-out clause includes a likelihood test but not a requirement for the case to be shown to have merit. That is a bit of a gap. It suggests that well-to-do law firms could still threaten journalists with a defamation case that has no merit and force the journalist to deal with huge legal costs. As we have already heard, as long as the lawyers toe the line and are not too aggressive in their tactics, they are unlikely to be thrown out under the early dismissal mechanism, but just because a case is not thrown out at the start, that does not mean everything is fine.

Most SLAPP cases never make it to a court, as we have heard. They succeed by intimidating critics into dropping their investigation at a very early stage. In these circumstances, the early dismissal test will not even come into play. One of the best defences probably lies with the solicitors’ regulator. The SRA needs to have confidence that these amendments tabled by my noble and learned friend the Minister will give it a sufficiently robust basis to penalise solicitors and law firms that pursue SLAPPs.

I understand that the SRA has powers to take action against individuals and law firms for misconduct or failing to comply with the rules. I would be grateful for clarification from my noble and learned friend the Minister that the SRA’s new unlimited fining powers, which are already in the Bill, could definitely be used to deter and punish law firms facilitating SLAPP cases, even if the case is not thrown out by the early dismissal test or does not make it to court. Let us not forget that the lawyers are making huge amounts of money from this. They know exactly what they are doing and can be very clever about getting away with it. We need confidence and assurances that the regulator will be able to take robust enforcement action, as we in Parliament need to be able to set a clear expectation of the regulators that they will be proactive in asking people to come forward with concerns, process complaints speedily and investigate high-risk firms to put them on notice.

Above all, the SRA needs to enforce the spirit of the law, not just the letter, by demonstrating zero tolerance for those profiting from flagrant abuses of our legal system. From my noble and learned friend the Minister, I am looking for clarity at the Dispatch Box that the fining powers that the SRA now has in the Bill and this new definition of SLAPPs empower it to act against law firms if it considers it appropriate to do so because they have breached its codes and so on. We are not looking for a situation in which it is possible for the SRA not to do what is properly expected of it just because it has not been spelled out in words of one syllable in the Bill.

In my view, it is really important for any regulator or regulated sector to understand that the members of it and those who are regulating it have a responsibility to uphold the reputation of that sector. That is done by the way in which they conduct their business. It is important that that is made very clear if the Government bring forward this definition of SLAPPs, as they have, to try to prevent further use of this aggressive and abusive form of legal action, which is doing so much to undermine the Government’s overall intention to reduce economic crime.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I am grateful to the Minister and I welcome the amendment he has put forward. I want to make three quick points.

First, it is clear that the will of the House is that something should be done quickly. The remedy should be speedy, inexpensive and flexible. This leads to my second point. The right course is to allow the rule committee to develop this, but the rules must be flexible and must allow for the development to be made judicially, rather than prescribed in rules. That, in my experience, has generally been the way forward; we have tried this in relation to other matters and know that it is impossible to lay down too many detailed things in rules. Thirdly, I hope that the Government will make available the necessary resources to the judiciary, so that this can be dealt with by a High Court or other senior judge. Speed, effectiveness and determination will show whether this is a means that will work or whether we will have to resort to that which was suggested by the first amendment that was debated.

[Baroness Blake of Leeds (Lab)]

My Lords, I add the thanks of our side to Ministers and their teams for the access that they have given us.

I will not say much more; we have had a full discussion and response to the concerns that were raised at Second Reading and in Committee. I believe that we are in a much better place than we were, as has been outlined by many of these contributions.

I have a few points to highlight. I honestly believe that providing the courts with powers to strike out SLAPPs would be a huge, ground-breaking step forward. We have to regard what is before us as a positive start. It is also positive that a robust threshold test has been introduced and that the profile of the defendant is not prescribed, which enables it to be used by anyone—journalists, whistleblowers, activists and academics—as we have heard.

We have to acknowledge the problems that other noble Lords have highlighted around the definition of what constitutes a SLAPP and where we will achieve that clarity. The proof will come as we move ahead, but I agree that we need to make sure of this in the rules and know when they will be available for us to consider. Perhaps the Minister can respond to this.

I want to press the Minister on an answer to when the Government expect to extend the use of protections against SLAPPs beyond the definition of economic crime as outlined. That would be very helpful for us all.

In conclusion, while limited, this is a promising framework. As I have said, the Government have committed to expanding the scope, and we all ask for this to be done speedily. I do not want to get into competing quotations from famous rock stars, but there are several we could follow. I hope that

“watch out, you might get what you’re after”,

from Talking Heads, is not one of them.

Economic Crime and Corporate Transparency

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Thursday 27th April 2023 Grand Committee

[Baroness Morgan of Cotes (Con)]

My Lords, I will have more to say shortly on Amendments 91 and 94, but I will make some brief points on the Government’s proposed offence. I also take this opportunity to thank the noble Lord, Lord Browne—in case he is not here later—for his support not only for the committee but for Amendment 94.

Like others, I welcome the Government’s proposed offence. As we have heard, it is a long-overdue step in the right direction. My noble and learned friend Lord Garnier set out quite how long he and others have been calling for such an amendment. In looking at this, I was drawn to the fact sheet on the failure to prevent offence published by the Government on GOV.UK, which rightly says:

“Fraud is the most common offence in this country, amounting to 41% of all crime”


in England

“in the year ending September 2022”.

That is absolutely right, but the trouble with this amendment—to introduce a new point, which is quite good, rather than repeating and supporting what everybody else has said—is that, as we found in the inquiry, the 41% referred to in the fact sheet would not, on the whole, be caught by it. That is because the government amendment requires the company whose employee has committed the fraud to have benefited from it. As we will discuss later, the vast majority of frauds are not committed in a way that benefits the company, which often is the platform used to perpetrate a fraud on innocent victims.

My noble friend the Minister mentioned the forthcoming fraud strategy, which I am sure he will be as relieved as the rest of us finally to see, not least because we will all stop asking him when it will be published. I understand that “imminently” really does mean quite imminently, but we are all dependent on the Downing Street grid. However, it is important that we see it before Report, because it will be difficult for the Government to resolve these issues in a way that will keep both Houses happy—as we have heard, the House of Commons wants to see change on this—without seeing that strategy, which will provide part of an answer as to how this country will tackle fraud.

I have talked about why the drafting of this proposed offence is insufficient in requiring an employee or associated person to benefit the company. We have heard much from noble Lords about the small companies exemption. I support the queries raised about why that has been introduced. When listening to my noble and learned friend Lord Garnier, it occurred to me that part of the problem, and perhaps the reason why the Government think it is acceptable to have this exemption and others do not, is that, as we found in the inquiry, there is a total lack of research into who is committing these frauds—the types of companies involved and how big they are—who is benefiting and the size of those companies. The Government need to commission far more research into this whole area.

As we have heard, this offence is about driving cultural change. That is needed in companies of all sizes, not just the very largest. I was struck by my noble friend Lord Agnew’s comment about the significant number of law firms that would be exempted if this exemption were to take place. Speaking as a former solicitor, I think that he is absolutely right. Most solicitors’ firms are tiny; we know that they and others can be enablers of fraud and other economic crime, so to exempt them makes absolutely no sense.

I add my support to calls for, if not reform of the identification doctrine, at least commissioning to look seriously at how this might be changed. The trouble with this offence is partly that in proposing it many years after it was first called for, the Government are late in solving this problem and therefore late in realising just how much corporates have changed. The lack of a directing mind in corporate bodies is much harder to discern in the 21st century than it would have been in the 19th century.

[Lord Thomas of Cwmgiedd (CB)]

May I just briefly make four points? First, as regards exempting small companies, as a director of one or two small companies that are charities, I can see no reason at all why we should exempt them. Your accountant always goes through what measures you have in place to prevent fraud, and it is extraordinarily difficult to understand what the costs are.

Secondly, from the way in which the Bill is drafted, it plainly means a single body corporate. There is a whole host of good reasons why you would structure your corporate activities over a host of different companies. It is critical that, if you are to have a limit, it must include all associated companies. You can see a good illustration of the way this is done in the provisions of the Building Safety Act 2022 that deal with remediation in relation to cladding. The Government dealt with it there because so many SPVs—special purpose vehicles—are used in the property industry, and you simply cannot permit them to be treated separately. Certainly, there are extremely good reasons sometimes to structure your partnerships as a whole lot of separate partnerships, partly to limit your liability for negligence. However, it should not apply in relation to fraud.

Thirdly, dealing with two out of three tests is not sensible. Looking at the way in which you suggest fines be imposed on companies, if you are to go down this route, the variety of the ways in which companies operate is so enormous that if you are to have an exemption, you should catch as many as possible. Again, if you do not have a structure that brings in everyone, the position is more complex.

Lastly, I will say something about the reform of the doctrine of corporate responsibility. Of course, I agree with my noble and learned friend, and former colleague, Lord Etherton that we need to be very careful. However, we are trying to tackle economic crime, and there is therefore a special case to be made for dealing with that. If we say that we have to wait until we have the whole of the criminal law sorted out, although one or two people in this Room may see it in their lifetime—I see that the Minister has a young team behind him—the law moves with incredible slowness in reforming criminal justice, and if we do not go through with this in this Bill, I doubt whether even the young members of the team will see any change, not merely during their time at the Home Office but in their lifetimes. We ought to move now.

[Lord Macdonald of River Glaven (CB)]

My Lords, against the extraordinarily high rate of fraud offending, we have to set the fact that fraud is the most under-prosecuted offence within this jurisdiction. There is no doubt about that, and no doubt that people in the country understand it, are aware of it and are extremely angry about it, particularly victims of this crime. I would hazard a guess that virtually everybody present knows at least one person who has been the victim of a fraud that has not been prosecuted; I know several. That is a lot of people who are not getting justice—on both sides of the transaction, I might say. I therefore welcome this amendment but I am disappointed that SMEs have been carved out, largely because, on the Government’s own figures, no less than 99.9% of businesses in the UK are SMEs. That is a significant statistic when we are considering the size of this carve-out and the impact it is likely to have on the Government’s objectives.

Some comparisons have been made with the Bribery Act 2010, specifically Section 7, and the “failure to prevent” offence in that legislation. Similar arguments about SMEs were made during the debates that led to that legislation, including the claim that if SMEs were included within it then that would impact on their ability to export. I am sure these are the sorts of arguments the Government have in mind when excluding SMEs from this legislation—that somehow it would be too burdensome for SMEs, some of which, to most of us, are very large companies indeed. So it is germane that in 2015, the government survey of SMEs and the impact of the Bribery Act on them found that nine out of 10 had no concerns or problems whatever with the Act, and that 89% felt it had had no impact on their ability to export.

As the Committee has heard, when your Lordships’ House undertook post-legislative scrutiny of the Bribery Act, it concluded that there was no need for any statutory exemption for SMEs from the Act. The Law Commission similarly received submissions arguing that SMEs should be excluded from corporate liability reform. It disagreed and did not recommend any statutory exemption for SMEs. Furthermore, government research on SME adoption of preventive procedures in relation to the Bribery Act found that the average cost for an SME was £2,730, with medium-sized enterprises spending an average of £4,610. These are tiny figures that could not conceivably justify exclusion of SMEs from this legislation on the basis that it would be too burdensome for them. Points have already been made about the extent to which the Government are encouraging the placing of public procurement contracts with SMEs, and that is also highly significant.

Since the noble and learned Lord, Lord Garnier, has raised the question of prosecutorial discretion—it seems only yesterday that he was Solicitor-General, but that may be a sign of my age as much as his— I say in support of him that the amendment as drafted places a great deal of discretion at the disposal of prosecutors. The defence set out under new subsection (3)(b) is:

“It is a defence for the relevant body to prove that, at the time the fraud offence was committed … it was not reasonable in all the circumstances to expect the body to have any prevention procedures in place”.


That is a potential carve-out that would deal with any problem or concern the Government have that the amendment’s impact might be disproportionate on SMEs. For all the reasons I have set out, I do not believe that it would be. I believe the real effect would be to leave whole swathes of business activity completely unaffected by this legislation so that, in effect, fraud would continue—disgracefully, in my view—to be an under-prosecuted offence.

Code of Practice for the Forensic Science Regulator

Lord Thomas of Cwmgiedd Excerpts

Monday 27th February 2023 Grand Committee

[The Earl of Lindsay (Con)]

My Lords, I thank my noble friend the Minister for providing this opportunity to consider the Motion that the 2013 draft code of practice for the Forensic Science Regulator, laid before the other place on 26 January, be approved. I warmly welcome the Forensic Science Regulator’s code of practice as an important further step in ensuring the quality, consistency and integrity of our forensic sciences across England and Wales. The code builds on the non-statutory codes of practice and conduct issued by the previous regulator and incorporates much of their content.

I particularly welcome the code’s recognition of the importance of accreditation against internationally recognised standards in driving quality improvement, trust and confidence in the critical services of forensic providers. Technical competence and consistency across the mixed economy for the provision of forensic science services should be a vital part of a fair and functioning criminal justice system. This code of practice will help achieve that.

I should declare an interest as the chair of the United Kingdom’s national accreditation body, UKAS, which is the sole national body recognised by government for the accreditation of organisations against nationally or internationally recognised standards. Accreditation provides assurance of the impartiality and competence of providers, which we can all agree are imperative in the criminal justice system. UKAS and the Forensic Science Regulator have been working closely since the FSR role was first created; together, we have achieved consistent success in improving standards through the accreditation of forensic science providers in both the private sector and police forces. UKAS will continue to work closely to deliver the vision of the Forensic Science Regulator with respect to compliance with standards and, through the accreditation of forensic providers, the demonstration of the appropriate competence of the practitioners undertaking this critical work.

I believe that this code of practice will support and encourage a culture of improvement and a commitment to quality, competence and impartiality across forensic science provision. I am delighted to add my support to its approval.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I, too, warmly welcome this code of practice. As the Minister so eloquently pointed out, we have one of the best five forensic science services in the world and have made enormous strides in getting forensic science set on a course of absolute science, rather than old wives’ tales or police lore. That is a huge step forward, which this country has been instrumental in taking.

However, it is right to say that there have been several serious miscarriages of justice—I have sat on several of them—where forensic scientists have not behaved with competence or integrity or have gone beyond what they are qualified to speak about. I therefore warmly welcome the work of the two non-statutory regulators, Andrew Rennison and Dr Gillian Tully, and now the statutory regulator, Mr Gary Pugh, in all they have done to try to eliminate the problems that have caused difficulties in such cases.

The noble Earl, Lord Lindsay, has spoken eloquently about accreditation, which is key. Also key is the fact that, within organisations, there must be a senior appointed individual who can be made responsible for lapses that occur. I regard as the most important part of the code the part that sets out standards of impartiality and integrity. As I have said, there have been cases where this has not always been so. Much to my regret, in some cases, there has been a lack of professionalism. One must remember that forensic scientists are often put under a great deal of pressure; standards of integrity to resist pressure, particularly from police officers who are anxious to secure a conviction, are therefore essential. The record of what has happened is well known so I need not go into it.

Secondly, it is important to stress the duty of the court. Thirdly, I very warmly welcome—it may be due to Mr Gary Pugh’s personal integrity and experience—the duty to guard against miscarriages of justice.

It is also important that the code goes into detail. There have been serious problems in relation to footwear analysis, DNA and fingerprinting, and it is good to see those now firmly covered by standards. There has also been worry about the way evaluative opinions have been formed. Many experts—not merely forensic experts—stray outside their sphere of expertise and seek to act more as advocates than as independent experts, relying on matters to which the code refers. I am very glad, therefore, that there is a firm steer for evaluative opinions.

The strength of the code can be seen by the fact that it deals with infrequently consulted experts, making it clear that, although they are not subject to accreditation, they must abide the standards of the court. It is surprising to see the spheres in which expert evidence is often needed, and from people who will never have given expert evidence before, or where the court may never have had expert evidence. Therefore I see this as a landmark in trying to make certain that we buttress our outstanding reputation as a nation in forensic science and strengthen that position for the future.

I will ask two questions of the Minister. First, what is to be done to ensure that the code is publicised and enforced? Secondly—I have spoken on this on many occasions—is the Home Office really getting to grips with other issues in forensic science and taking forward the need to keep forensic science ahead of the game, particularly in digital forensics?

[Lord Coaker (Lab)]

My Lords, I thank the noble Earl and the noble and learned Lord who have contributed to this important if short debate. They said that this is an extremely important step forward by the Government, and we welcome it as well.

I thank the noble Lord, Lord Sharpe, for his introduction. I also thank my friend in the other place, Darren Jones MP, and indeed my colleague and noble friend Lord Kennedy, who would be most upset if I did not mention that he was part of the Private Member’s Bill effort which became the Forensic Science Regulator Act in 2001. That was an important step forward and shows how sometimes Private Members’ Bills can make a real difference. As noble Lords realise, the Act required the regulator to produce a statutory code of practice so that all those doing forensic science activities uphold and maintain proper standards, which both the noble Earl and the noble and learned Lord said is so important, and which indeed many forensic scientists do.

This statutory instrument is the new code of practice. It builds upon non-statutory codes of practice and integrates much of their content. Upholding good forensic science standards is absolutely vital to our criminal justice system. The code applies to all those carrying out forensic science activities: individual practitioners, academics, private and public sector organisations, or indeed forensic science units.

With those general comments I have a few questions for the Minister. A report by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services showed that, when it came to digital forensics, the police have not kept pace with the scale of the challenges they face. The report said that, in some cases, they simply did not understand what digital forensics meant. It found, in the words of the inspectorate,

“delays … so egregious that victims were being failed”.

Could the Minister give us any indication of what progress has been made following the recommendations of that report?

The Home Office also considered an impact assessment on the Forensic Science Regulator in 2013, but it has not been updated since. With this new regulator and statutory code, has an internal impact assessment from 2021 been made? There was a deadline of October 2022 for all police laboratories to be accredited. Can the Minister give an update on whether that target was reached?

Public Order Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Rooker, has done a service to the House in focusing such clear attention on the Delegated Powers Committee report, and the issue that it raises. I simply want to pursue one of the points that he mentioned, which is one of the features of the guidance to which this power relates:

“guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.

What does the Secretary of State know that the police do not know about who it would be appropriate to make serious disruption prevention orders about? On what basis does the Secretary of State know what the police do not know and therefore have to be advised about?

The only basis I can think of is not a helpful one for the Government. It is that there is a political reason here and that what the Government want to do is say, “Never mind those people who are protesting about this, go after those people who are protesting about that.” This is the very kind of power which we have always tried to avoid giving, in the form of direction to the police, to anybody, including police and crime commissioners. There has been a very necessary reluctance to have the police directed in a way which could become political, and in which the choice of where to deploy resources was based on whom the authority concerned—in this case, the Government—disliked and wanted to see penalised in some way.

I cannot see any respectable argument for the Secretary of State saying to the police “You do not realise what I realise; this is the guidance I am giving you about identifying appropriate persons.” It is the sort of thing that even the affirmative procedure would not give us a very good chance to deal with, because you cannot amend statutory instruments, even under the affirmative procedure. But to leave it simply to the negative procedure, which is so limited and so inadequate, particularly in the other Chamber, is simply not satisfactory. The Government’s response to the Delegated Powers Committee has been wholly inadequate so far.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to make one or two brief observations in respect of the way these amendments tie together. The amendment in the name of the noble Lord, Lord Coaker, which I support, sees a good precedent in what Parliament sometimes does, which is to pass successive pieces of legislation without having in mind all the complexities of the earlier legislation. We saw this most clearly in my experience in relation to search warrants of premises, and I will come back to that in a moment. There is a huge advantage in having up-to-date guidance, and the best people to produce it are those who have practical experience—namely, the police institutions—so I warmly welcome that.

But its importance goes to Clause 30, because the question I ask myself is: why is Clause 30 there? Why can it not be dealt with in two other ways? One is the use of guidance given by independent police to other police, to get uniformity; and secondly, do not forget these are applications to a court, so can we not do what we did in relation to search warrants? That is, to provide in detailed form, through the Criminal Procedure Rule Committee, working closely with the police and other organisations, the information that needs to be put before a court to make the decision on the order. Now, if the Home Secretary feels that there are areas that you need to specify—for example, about the kind of person who should be asked to supervise or do something—why can the detail of what is required, the kinds of considerations, not be put properly and openly through an independent process of rules and forms? This worked for search warrants.

We ought to bear in mind the experience of ASBOs. It is not the time at this hour of night to go back to that rather unhappy chapter, but trying to supplement un-thought-through legislation of this kind with guidance is not the way forward; there are better mechanisms.

It seems to me, when one looks at Clause 30, one asks oneself, “What is it for?” In Clause 30(2)(c), the guidance is about

“providing assistance to prosecutors in connection with applications for serious disruption prevention orders.”

Is the intention that somehow the Home Office believes that the police do not help prosecutors? What guidance do they need? These are independent people and their independence should not be called into question. In most countries, the independence of the prosecution service, as in our country, is critical, and so is the independence of the police.

I do not want to go into the constitutional points under Clause 30, because I entirely agree with what has been said. I think one ought to look at this from a practical experience point of view to say that the clause is completely unnecessary. It should be possible to deal with the practical consequences of these orders in a way that takes into account experience. This is a criticism of the way in which the modern Civil Service is structured. There are probably few people in the Home Office who remember what I have just gone through. I thought a few grey hairs might remind people that there is a better way forward than this constitutional aberration, constituted by Clause 30.

[Lord Paddick (LD)]

My Lords, we support Amendments 126 and 144 in the name of the noble Lord, Lord Coaker. As recommended by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, consolidated public order guidance should be published, to include minimum training standards, clear information on relevant law and operational best practice. We must ensure that existing law and practice are used effectively and that police can then be held to account against that consolidated guidance.

The noble Lord, Lord Coaker, talked about ensuring that the police had excellent training. I go back again to my own experience: the Metropolitan Police were world leaders in public order policing and the training was extensive and excellent. Other forces used to come to the Metropolitan Police and engage in training with it and in that way good practice was shared.

Does the Minister know what the impact of cuts to police budgets has been on the quality and amount of training in public order policing—the involvement of other forces in training with the Metropolitan Police, for example? My understanding is that special constables, who are part-time volunteers, are now being trained as public order officers. This is a very difficult, sometimes dangerous, skilled area of policing. One would question whether part-time volunteers are the right officers to be used in that sort of situation, requiring knowledge of public order legislation that is getting longer and more complex as we go on.

What has been the impact of the police cuts on the number of public order trained officers? Before the Minister stands up and talks about the uplift in the number of officers, I point out that across 16 constabularies, the number of police officers over the last 12 months has gone down rather than up and the Metropolitan Police has given notice to the Government that it will not reach its target of the uplift of an additional 30,000 officers.

HMICFRS talks in its public order report about the lack of regular officers volunteering to be public order officers because it involves increased weekend working—which is not popular—an increased risk of complaints, and the increased risk of being verbally and physically abused. What steps are the Government taking to mitigate these factors, which are working against having highly trained, highly skilled public order officers in sufficient numbers to be able to handle protests?

--- Later in debate ---

[Baroness Blower (Lab)]

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Chelmsford. Noble Lords will recognise this speech in style and content as the work of my noble friend Lord Hendy, of Hayes and Harlington, who is unable to be in his place this evening. I speak in his place on Amendment 131.

Clause 20 is wholly objectionable because it enables the imposition of criminal penalties in respect of conduct for which the defendant has not been convicted of any criminal offence, as we have heard from all around the Chamber. However, assuming the clause is to stay in the face of opposition from various parts of the Chamber, there is another defect.

The conduct at which it is aimed clearly comprehends picketing in the course of an industrial dispute. There will not be much effective picketing in the course of a trade dispute which does not offend against the description in Clause 20(2)(a)(iii), which refers to

“activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”.

The very purpose of picketing, as legitimated in Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, is to attend a workplace for the purpose of “peacefully persuading any person” not to work. If effective, this will seriously disrupt those so persuaded and their employer and will render nugatory the right to picket

“in contemplation or furtherance of a trade dispute”,

contained in Section 220 of the 1992 Act. That right has been statutory in this country since the Conspiracy, and Protection of Property Act 1875. The right was subject to offences created by the 1875 Act such as “watching or besetting” and an array of other potential offences such as obstructing a public highway or an officer in the exercise of his duty, or more serious offences.

Since 1875, the right to picket has been regulated and restricted by many amendments to the relevant law, the latest being several requirements imposed by the Trade Union Act 2016, now found in Section 220A of the 1992 Act. Yet the right remains. This clause would destroy it altogether. It is also a right protected by Article 11 of the European Convention on Human Rights, the right to freedom of association, and, in particular, the right to be a member of a trade union for the protection of one’s interests. It is likewise protected by ILO Convention 87, Article 6(4) of the European Social Charter, and many other international instruments that the UK has ratified.

What is needed is protection against this provision for those who are acting

“in contemplation or furtherance of a trade dispute”,

to use the time-honoured phrase, which is now found in Section 244 of the 1992 Act. The Government have used this protection in relation to Clause 6 to provide such protection against the offence there created. This modest amendment seeks its protection in relation to this new provision.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the analysis so eloquently made by the noble Lord, Lord Anderson of Ipswich, and supplemented by the points made by my noble and learned friend Lord Brown. It is easy to think of ways of making these clauses, chipping here and chipping there. However, the approach of the noble Lord, Lord Anderson, was plainly correct. The Government have got themselves into the mess of putting this into legislation without understanding the context of where these orders were made in the past and what they are seeking to do now.

Being a lawyer, I always go back to precedent. You look at it and copy it all out, but at the end of the day you have to sit in your chair and think. There are two things the Government ought to think about. First, can they achieve what they want to do by something that is much more sensible?—to which the answer is plainly yes—and, secondly, what is the consequence of what they are doing? When you are dealing with people who carry knives, with terrorists, or with people who engage in activities that disrupt neighbourhoods, people gathering together, and violence in a social context, that is one thing. But here we are dealing with people who genuinely believe that they are fighting the existential threat to the planet—or they may be fighting for trade union rights, or for liberty. If you treat those people, who have a noble cause as they see it, in the way that you treat terrorists, what do you do for justice? You can only damage it severely. I therefore humbly ask the Minister to sit back in his chair and have a good think about the wisdom of this.

Police and Crime Commissioners

Lord Thomas of Cwmgiedd Excerpts

Monday 31st October 2022 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I, too, congratulate the noble Lord, Lord Lexden, on obtaining this debate, and on his speech, and I congratulate the noble Lord, Lord Bach, on his. They clearly illustrated that there are serious problems with the current regime of the governance of the police, but there is nothing new in this. The governance of the police has always been difficult. In the middle of the last century the chief constable of Worcester was jailed for fraud. There were terrible problems with watch committees. We set up a royal commission on the police, and it pointed, in some very wise words, to the issues: that the police should be powerful but not oppressive; they should be efficient but not officious; and they should form an impartial force in the body politic, and yet be subject to a degree of control by persons who are not required to be impartial and who themselves are liable to police supervision. That encapsulates, as only royal commissions can do, the difficult issues.

However, since the police authorities regime was reformed under the guidance of that royal commission, two things have happened which transformed the position and necessitated change in the form of the introduction of police and crime commissioners. The first was the enormous growth in the power of the chief constable. This, like all changes that do not occur through legislation, occurred imperceptibly, and there is no doubt that by the early part of the current century chief constables were too powerful and needed a more effective body than the police authorities. Secondly, there had been a change in the power of the police. It used to be our view that the police ought to have just a little bit more power than the ordinary citizen. I am afraid that, with the Criminal Law Act 1967, we departed from that very long tradition of our constitution and gave the police enormous powers.

So, these two forces required reform. I do not want to criticise the change that was introduced by the introduction of police and crime commissioners. In the period where I dealt quite extensively with them, they did, on the whole, a very good job. But we have never really stood back, and this is why I so much welcome what the noble Lords, Lord Lexden and Lord Bach, have said.

There are now enough problems that we ought to have a proper review. I know that the Home Secretary has many other matters on her mind, but what about an independent review? I dare not suggest a royal commission—those are so wholly out of fashion; I just raise a number of points that require us to look at them again. First, is the way the office of police and crime commissioner is set up sensible? Not being a politician, I have always thought that the genius of our system was that politicians had a permanent office behind them that provided a degree of guidance: that there was some institution that could ensure continuity. Should not the police and crime commissioners have some sort of established office that supports them, and that has the protection of a permanent Civil Service?

Secondly—we have not thought about this enough—the police now have extensive powers to impose sanctions. They started with police cautions. Then, penalty notices were introduced, which were fine for things such as speeding, but no one has reflected properly on the extent of the problems of accountability. There was a public investigation by the police into very senior civil servants and Ministers, and yet the decision was made by the police, in an unreasoned way, as to what they did or did not do. It epitomises the growth in the use of the police as a punishing body—a body entitled to decide issues of justice—that we do not have a mechanism of accountability.

As I tried to point out during consideration of what I call the “police et cetera” Act—the Police, Crime, Sentencing and Courts Act 2022—one of the defects is that there is nothing to provide a mechanism for supervising the penalty notices. Then, there is the problem of who holds the chief constable to account for operational matters, in so far as you can distinguish that from policy. Then, there is the whole question of the use of the police and crime commissioners in relation to criminal justice boards. I could go on and on. Of course, there is also the problem of Wales but I will not go into that tonight; that is too complicated an issue for police and crime commissioners.

All I am saying is that there is plenty of evidence that we need to look at this again, but we need to think of broader issues than these particular cases; they are the symptoms. We need to do everything with a proper regard to our constitutional rights, and acknowledge that the governance of the police is an intractable and difficult issue that has lived with us for a very long time.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Rosser (Lab)]

Amendment 114C would place a statutory duty of candour on members of the police workforce. It would create a duty on law enforcement to act at all times in the public interest and with transparency, candour and frankness, and to assist in court proceedings, official inquiries and investigations where the activities of members of the police workforce, including omissions, may be relevant. The issue was discussed at some length in Committee and I certainly do not intend to repeat all that was said then.

In his 2017 report on the pain and suffering of the Hillsborough families, Bishop James Jones proposed a duty of candour to address

“the unacceptable behaviour of police officers—serving or retired—who fail to cooperate fully with investigations into alleged criminal offences or misconduct.”

In June 2021, the Daniel Morgan Independent Panel, which I believe took eight years to report, found:

“There was not insignificant obstruction to the Panel’s work … the Metropolitan Police did not approach the Panel’s scrutiny with candour, in an open, honest and transparent way”.


The panel recommended

“the creation of a statutory duty of candour, to be owed by all law enforcement agencies to those whom they serve”.

The chair of the panel, the noble Baroness, Lady O’Loan, said in this House that

“the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing”.—[Official Report, 22/6/21; col. 134.]

Last June, the Government told us in this House that they were still considering the duty of candour in response to Bishop James Jones’s report four years earlier. We now have before us a flagship home affairs and justice Bill from this Government, which prioritises new offences against those who protest but is silent on the failures of justice highlighted in the Bishop Jones report and by the Daniel Morgan Independent Panel and the resulting call, both in the report and by the panel, for the statutory duty of candour provided for in this amendment. It is time for action and a decision, and an end to this seemingly never-ending continuing government consideration of this issue. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

I have added my name to this amendment for four reasons. First, the need is clear: we need complete protection of victims and the public interest, and to make certain that recalcitrant are no longer able to delay. Secondly, the duty of candour is clear: there is no doubt about what it entails. Thirdly, the remedies provided in the proposed new clause are extensive and proportionate. Finally, there can be no reason for delay. Why does it need consultation? It does not. The proposed new clause and the need are clear; we should pass this amendment.

[Baroness O’Loan (CB)]

My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, and the noble and learned Lord, Lord Thomas, for tabling this amendment.

Briefly, a duty of candour would bring about a change of mindset and culture by requiring openness and transparency about what has happened in investigations. It would lead to a more efficient deployment of resources, which would have a beneficial impact on the public purse. It could very much help to contradict allegations of police corruption and will grow confidence in the leadership of the police service because there would be a statutory obligation of openness and transparency, and therefore an assumption there would be compliance with the law rather than a suspicion of cover-up or, even worse, corruption. The amendment is framed to protect all necessary matters but to enable a different positive approach to the delivery of policing. I support the amendment.