Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

[Earl Attlee (Con)]

My Lords, I rise briefly to support these amendments. The noble and learned Lord, Lord Falconer, told us roughly how many pets had been stolen. Can the Minister tell us how many prosecutions have taken place for theft of a dog?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I rise to respond to an amendment about pet theft, but I will start by saying a few words about amendment theft. The noble and learned Lord, Lord Falconer, stole some of the Committee’s time to give us a lecture about the rule of law. I regard the rule of law as a matter of supreme importance, but let us remember what it is and is not.

First, it is not a law; it is a constitutional principle. Secondly, we can have a debate about the scope of the rule of law. The rule of law as adumbrated by Lord Bingham, for example, has a different scope from that set out by Lord Justice Laws in his book; there are different views as to the breadth of the rule of law. But everybody agrees that one has to abide by the law as set out by a court. There was no court in the circumstances set out by the noble and learned Lord. The only court involved is the court of Parliament and, with great respect, the other place was quite within its rights both legally and, I suggest, morally to set out its own procedures.

[Lord Falconer of Thoroton (Lab)]

Do I understand the Government’s position to be that there is no element of the rule of law engaged in complying with the court of Parliament, and in particular the requirements of Parliament?

[Lord Wolfson of Tredegar (Con)]

What happened today was Parliament complying with the rules of Parliament, because ultimately Parliament regulates itself. That is how it works. The phrase “rule of law” in the normal sense means a Government or an Executive abiding by the rule of a court. The only relevant court here is the court of Parliament.

However, I now turn to pet theft. I am sure we will come back to the rule of law, and perhaps the human rights issues, when we discuss the Judicial Review and Courts Bill. On pet theft, I thank the noble and learned Lord for tabling this amendment. As he set out, on this point there is actually very little between us. The topic of pet theft caused some consternation in the other place, and—again I agree with the noble and learned Lord on this—quite rightly so. Pets should not be seen as just property; that is at the heart of this issue. Pets are cherished members of the family, so it is right that we take time to consider, as the Government are doing, what measures we can and should take to tackle this abhorrent behaviour.

The Government’s Pet Theft Taskforce reported on its findings in September. It recommended a number of measures to address this crime, including a new offence of pet abduction. Your Lordships might ask why we should create such an offence when a simple pet theft offence might suffice. In that regard, I note that the noble and learned Lord’s amendment in large part mirrors the wording in the Theft Act 1968. However, I suggest to the Committee that we need to reconsider how pets are treated in law, because they are not just possessions or chattels. Therefore, I respectfully suggest that the wording of the Theft Act is inapt; it does not encompass the issue sufficiently. As the noble Baroness, Lady Bakewell of Hardington Mandeville, set out, that is particularly the case now we have seen so many cases of pet theft during the Covid period. We recognise that animals should therefore be treated as more than property. We are already bringing forward legislation to crack down on puppy smuggling and other cruel crimes, and I hear the points made by the noble and gallant Lord, Lord Craig of Radley, and my noble friend Lord Attlee.

In the new offence of pet abduction, we will seek to bring into focus not merely the taking of a piece of property or a chattel but the impact on the animal and its welfare when a stranger takes a pet away from its carer. This new offence, alongside the other recommendations from the task force, will make it harder for thieves to abduct and sell pets, make it easier for the police to catch them, and ensure that any welfare concerns can be appropriately reflected in the punishment given to offenders.

I will pick up two shorter and, I accept, more minor points which are relevant to this issue. First, the noble and learned Lord’s consequential amendment expands the scope of Section 17 powers under PACE. That section allows a constable to enter and search premises for the purpose of arresting a person for specified offences, and the amendment would include the new pet theft offence in that. We suggest that this is unnecessary. Because the amendment proposes to make the offence triable either way, the Section 17 powers would already be available.

Secondly, the noble and learned Lord has tabled an amendment in respect of Scotland. The Committee will be aware that crime and justice are devolved. Therefore, it would be for the Scottish Government and Scottish Parliament to consider whether they wanted a specific offence under the distinct operation of Scots law.

Coming back to the main issue, the Government have announced that they will take appropriate action. I am afraid I cannot put a date on that today, but I hear the strength of feeling on this issue. The Government have made their intentions clear, and I hope that, whatever future debates we may have on the rule of law, the noble and learned Lord will withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

Are the Government intending to table an amendment to this Bill to deal with pet theft?

[Lord Wolfson of Tredegar (Con)]

I cannot commit to that, but, as I say, I have heard the strength of feeling and what the noble and learned Lord has said on this topic. I am sure we can have future discussions on this point.

[Earl Attlee (Con)]

My Lords, will my noble friend take the precaution of instructing parliamentary counsel to draft suitable legislation just in case?

[Lord Wolfson of Tredegar (Con)]

My Lords, I shall put it this way: I am well aware that if we wanted to table the amendment to this Bill, we would need a properly drafted clause, and we know how to go about that.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

My Lords, we have witnessed a rather remarkable half an hour in the House where an overwhelming case was made. I pay a special tribute to the noble Baroness, Lady Hayman. I thought her case was overwhelming until I heard the noble Baronesses, Lady Brinton and Lady Cumberlege. I then thought, “Goodness me, there are more reasons than those which the noble Baroness, Lady Hayman, has given.” My mind then moved to the possibility of legal difficulties and whoosh, the noble Lord, Lord Pannick, came in and dealt with them all.

What is the reason for not doing this? The noble Lord, Lord Pannick, gave two possible reasons. He dealt with what might be the arguments in relation to the breadth of the amendment, and I completely agree, but if the Government have some good reasons for why this amendment should be changed, I am sure that the House will deal with them. The other reason given was the Law Commission. As the person responsible for the Law Commission over a long period of time, over 50% of its reports never see the light of day. It takes a long time to get there.

I ask myself another question. Can you imagine any provision or suggestion that the Law Commission would make which would cut across this amendment? I cannot. I would expect the noble Lord—sadly not the noble and learned Lord—the Minister, to give reasons why this will not happen, because like the noble Baroness, Lady Cumberlege, I was encouraged by the extract that she read of what sounded to be an incredibly understanding speech by Victoria Atkins in the other place, which was then dashed. The Law Commission is manifestly not a legitimate excuse. It should be treated with utter contempt if it is advanced as a reason. From the point of view of the Government, the work has been done by the campaigners, Stella Creasy and the crack squad of amenders that we have just heard from, so it costs the Government nothing to put it into the Bill. There will be some additional costs to the criminal justice system, and the police will deal with a number of cases, though I suspect not many, so there is not much public expenditure. The question for the Minister is: why not?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend Lord Attlee indicated that I should come along quietly. I am not going to do that; however, I hope that I will come along realistically and clearly in setting out the Government’s position. There is no dispute in this Committee that the behaviour we are talking about is absolutely abominable and indefensible. I therefore appreciate why a proposed new clause on this distressing subject of breastfeeding voyeurism has been tabled for debate. I start by expressing my unequivocal support for the mothers who have experienced this sort of appalling behaviour.

As the noble and learned Lord, Lord Falconer, said, we have heard a number of really outstanding speeches, some of which were very personal in terms of people’s history and families. I respectfully endorse the point made by the noble Baronesses, Lady Hayman and Lady Brinton, that this is not just a matter of protecting privacy or preventing distress; it is also important because we want to promote the very real benefits of breastfeeding. I take all the points made in that regard on board; I also take on board the point made by the noble Baroness, Lady Jolly, on the bonding time—the quiet time, if I can put it that way—that breastfeeding provides. On whether breastfeeding also benefits fathers because we do not have to get up at night, on that I will—if, as a Minister in a UK Government, I am allowed to dip into a foreign legal system for a moment—plead the fifth amendment.

To pick up a point made by the noble Baroness, Lady Hayman, I assure the Committee that, depending on the specific circumstances, it may be possible—I underline “may” because I accept that it will not be possible in all circumstances—to capture this sort of disgusting behaviour under some existing offences, including public order offences and offences dealing with harassment and stalking, along with the common-law offence of outraging public decency. However, this is not a complete answer; I do not put it forward as such. We recognise that the law in this area is not always clear, and that consideration should be given to improving it. That is why we asked the Law Commission to review the law around the taking, making and sharing of intimate images without consent, to identify whether there are any gaps—or, rather, what the gaps are—in the scope of protection already offered to victims. The review looked specifically at voyeurism offences and non-consensual photography in public places, including whether the recording and sharing of images of breastfeeding should be included in the scope of “intimate” images for the purposes of any reformed criminal law.

However, a change in the law here will not be straightforward. I will explain why in a moment. With an amendment such as the one moved by the noble Baroness, there may be a variety of situations in which it is still not an offence to take a picture of a person breastfeeding. That is why the Law Commission’s review is looking into intent, the definition of “image” and other circumstances relevant to this issue. As the Committee is already aware, the Law Commission’s work has gone at some pace. It obviously has an important eye for detail; that is why it is there. It intends to publish its recommendations by the spring of next year, so we are certainly not trying to kick this ball into the long grass. We are proactively considering what more can be done to tackle this behaviour and protect mothers now, ahead of the Law Commission’s recommendations for reform of the law in this area.

However, I respectfully disagree with the noble Baroness, Lady Hayman, that this issue is clearly defined in her amendment. I want to pick up on the point made by the noble Lord, Lord Pannick, if I may; we have had the benefit of some discussions. A number of points look like drafting points but are not, because they really go to the question of the scope of the proposed amendment and what it is seeking to encompass. Let me give a couple of examples, without turning the Committee into a legislative drafting session. Here is example A; I will try to use the initials from the amendment. A takes a photo of his wife, partner or girlfriend on a beach in her bikini, intending to use that image for his own sexual gratification. Another woman, B, is on the same beach, breastfeeding her baby, and is unintentionally caught by A in the picture. I heard what the noble Lord, Lord Pannick, said, but I respectfully suggest that this would be caught by the proposed amendment. A would have no defence as, first, he intended the picture for sexual gratification and recorded the image for that purpose. Secondly, he would have no defence of consent by B because B did not consent. A would also not be able to have the second defence of reasonably believing that she was giving consent because he had no idea at all that she was in the picture.

That is one example, but this goes further than drafting. Let us say that A was aware that B was caught in the background of the photo but was not aware that she was breastfeeding. Again, A would not be able to say that B had consented or that he reasonably believed that she had consented. Further, would an image of someone breastfeeding that did not actually include the act of breastfeeding—for example, a photograph capturing only a breastfeeding mother’s face—be captured under this amendment? What parts of the body, if I can put it that way, would we require the image to capture? As the noble Baroness, Lady Brinton, explained, this is different from the upskirting offence because the law there condescends to particular parts of the body that must be captured in a photo. Would we wish to capture images taken of breastfeeding regardless of whether it is in a private, semi-private or public setting?

I underline to the Committee that I do not raise these matters as drafting points or to be difficult. On the contrary, it is because this issue is so important that we must get the nature, boundaries and scope of the offence absolutely correct.

[Lord Pannick (CB)]

Does the Minister accept that his second potential problem would easily be dealt with by a drafting amendment to make it clear that the offence relates to a photograph or video of a breast? It would not be difficult to draft that. In relation to his first concern, which, as I understood it, was that if someone takes a photo of their wife or girlfriend breastfeeding for the purpose of sexual gratification and there is some other woman in the background—oh, I am sorry, have I misunderstood?

[Lord Falconer of Thoroton (Lab)]

Before the Minister answers that question, does he not also agree that we have perhaps seven or eight weeks before we get to Report, so the pettifogging points he is making could plainly be dealt with if we all sat round a table and agreed a draft?

[Lord Wolfson of Tredegar (Con)]

In drafting legislation, the first thing we need to do is make sure that we agree on the nature and scope of the amendment. I have tried to make it clear that I am not putting these points forward as pettifogging points of drafting. There are important points underlining this about what we want the amendment to cover. I do not know whether the noble Lord, Lord Pannick, was about to rise again; should I give him an opportunity to do so?

[Lord Pannick (CB)]

It may be thought by the Committee that the first example that the Minister gave was somewhat esoteric and unlikely to occur in practice. The risk of such esoteric events occurring is more than outweighed by the actual mischief that this amendment seeks to address. In any event, the same objections—the noble and learned Lord, Lord Falconer, called them pettifogging; that is his word, but I understand why he said that—could well be raised in relation to upskirting, in that pictures could be taken in whose background there is some other unfortunate woman. Perhaps the Minister might wish to reconsider these matters. We would all be happy to sit round a table and agree a draft that meets these points.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

We are all united in our admiration for the parliamentary counsel and draftsmen, absolutely—there is no doubt about that. I do not know whether the noble Lord, Lord Pannick, is an habitué of Instagram. If he were, he would appreciate that the example that I have given is far from unlikely: people take photos of their wives or girlfriends or, indeed, of people who they do not know, but who are not breastfeeding, for all sorts of purposes. Under the definition in the amendment at the moment, if a person is caught in the background of a photo breastfeeding, there would be an offence.