Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

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

My Lords, perhaps I should first begin by apologising to the noble Lord, Lord Marks of Henley-on-Thames, for standing up at the same time as him. I am not sure whether I stood up too quickly or the noble Lord stood up too slowly, but we got there at the same time.

This group of new clauses relates to primary carers in the criminal justice system, and first I thank the right reverend Prelate and noble Lords for tabling these amendments. I know they were proposed in a recent legislative scrutiny report on the Bill by the Joint Committee on Human Rights, and this topic has been an area of interest to the Joint Committee during this and previous Parliaments. As set out during debates on the Bill in the other place, the Government support the principle behind these amendments. I hope, therefore, I will be able to provide to the House the reassurance that the noble Lord, Lord Carlile of Berriew, asked for. I can assure the noble and learned Lord, Lord Falconer of Thoroton, that we do take these points very seriously. More generally, I can assure the noble Baroness, Lady Massey, that when it comes to our sentencing reforms, we do consider the impact on children. However, the reason the Government do not propose to accept these amendments is that they do not consider them to be necessary, for reasons I will seek to explain.

When sentencing or considering the grant of bail to a defendant who is a primary carer of a child or who is pregnant, courts will consider principles established in relevant case law. There is a wealth of case law on this point. We have heard the contribution from the noble and learned Lord, Lord Thomas of Cwmgiedd, and I am reluctant to get into the details of criminal law in his presence. But it can perhaps be conveniently found in a case called R v Petherick in 2012—let me give the reference for Hansard: “EWCA Crim 2214”.

In that case, a single mother with a boy of 16 months was convicted—she pleaded guilty—of causing death by dangerous driving and driving with excess alcohol. The court set out nine points of specific and clear guidance—nine principles—which had to be taken into account with regard to sentencing. If I may summarise those in a sentence or two with no disrespect to the court, they make clear that the aims of custody have to be balanced against the effect that a sentence can have on others. That is the case both with regard to sentencing and with regard to pretrial detention. When I say, “on others,” this point is not limited to children, as a number of contributions to this debate have highlighted—particularly those from my noble friend Lord Hailsham, the noble Baroness, Lady Jolly, and, again, the noble and learned Lord, Lord Thomas. It does have broader application, and the court will obviously want to consider the effect of custody or pretrial detention on others who are dependent on the person who might go to prison. This is a point, therefore, with more general application.

I have talked about sentencing and remand in custody. When it comes to sentencing, the principles I have just set out, in broad terms, are reflected in detailed sentencing guidelines issued by the independent Sentencing Council. Courts are required by law to follow those guidelines, and the guidelines specify that being a “Sole or primary carer for dependent relatives” is a mitigating factor when sentencing an offender. The effect, therefore, is that the fact that the primary carer is such can tip the scales. What would otherwise have been a proportionate sentence if it was a sentence to custody can, if the person is a primary carer, become disproportionate. It can tip the scales.

As we heard from my noble and learned friend Lord Garnier, to whom I am grateful for his kind words, recorders and judges give—to use his word—anxious consideration as to whether a custodial sentence is required. Again, the position in law can be summarised like this: a custodial sentence can be imposed only where the court is satisfied that an offence, or combination of offences, is so serious that neither a fine alone nor a community sentence can be justified. Even where a court is of the opinion that the seriousness of an offence would ordinarily warrant a custodial sentence, it still has discretion to impose a community sentence after taking into account wider considerations. Community sentences are part of the important background to this debate. I think we will come to them later on in the Bill and I look forward to the thorough endorsement of the noble Lord, Lord Marks, of our proposals on community sentences, given what he said in this debate. That is the position with regard to sentencing.

On defendants awaiting trial, there is a general right to bail unless it is necessary for the protection of the public or the delivery of justice that the defendant be remanded in custody. A defendant accused of an imprisonable offence can be refused bail only where there is specific justification for that refusal, as specified in legislation. A number of noble Lords talked about the information which is available to the court about the personal circumstances of the defendant. The bail information report includes information about the direct effects on an individual and any dependants, should they be remanded in custody.

With regard to pre-sentence reports, which were also mentioned, guidance was introduced in 2019 for probation practitioners, in addition to the legislation already in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibilities for children or other dependants, and for those at risk of custody. An aide-memoire highlighting key areas for practitioners to consider when assessing the diverse needs of women in the context of offending was also issued in 2019 to assist probation practitioners to prepare those pre-sentence reports on women. We are currently running a pilot in 15 magistrates’ courts that specifically targets female offenders, as well as two other cohorts which have specific needs, for fuller written pre-sentence reports.

The noble and learned Lord, Lord Falconer, spoke about the importance of the courts giving reasons why they were refusing bail, for example, or sentencing somebody to custody. That duty is, with respect, unnecessary to impose on courts because they are already required by law to state in open court their reasons for deciding on a sentence. Moreover, where there are dependent children, sentencing guidelines, as I have said, require the courts to consider the impact on them at various points in the sentencing process. That is the effect of Section 52(1) and (2) of the Sentencing Code.

I turn to data, about which the noble Baroness, Lady Massey, my noble and learned friend Lord Garnier and the noble Lord, Lord Bradley, made points. I underline the point again from the Dispatch Box that data is critical. My noble and learned friend was very kind, but the fact is that I am quite keen on data. I am not the only person in the Government who is, but I certainly am.

I assure the noble Baroness, Lady Massey, that we have already committed to improving our work on data collection concerning primary carers in prison. That work is already under way. We already collect information on parental responsibilities but the current questions do not identify dependent children of primary carers using the correct definitions. We are therefore making changes to the questions to enable us to identify prisoners with primary carer responsibilities on their entry to prison, and to enable access to that information centrally—a point made, I think, by the right reverend Prelate.

We are already looking at how we can deliver our commitment to improve national data collection through changes to what is called the basic custody screening tool. That is completed shortly after somebody goes into prison and we want to capture more robust and reliable data on parental responsibilities. Responding to earlier reports from the Joint Committee, the Government have committed to collecting more data centrally and using that to inform policy and improve our services for prisoners with primary caring responsibilities.

[Lord Falconer of Thoroton (Lab)]

The first report of the Joint Committee on Human Rights in 2021 details in section 2 the concern expressed by the committee in 2019 that there was no data about carers who were in prison. The Government gave an assurance that they would do something about it in 2019. The committee produced another report in 2020, saying “You’re still not collecting that material”, and a Minister gave another assurance. In 2021, the committee wrote a third report—this report, containing these suggestions—saying that none of the previous assurances has been complied with. Why should we accept the assurances the Minister is now giving in relation to the 2021 report, when all previous assurances given to that committee have not been complied with, as detailed by the committee in its report, and as the Ministry of Justice has not denied?

[Lord Wolfson of Tredegar (Con)]

Work still has to be done, of course, but I hope that the noble and learned Lord will accept that we are doing more than we have done before. As I have tried to explain, we have put in place a process to identify what we need to collect and how we are going to do it. One must also take into account—the noble Lord who made this point will forgive me for not remembering who did so—that it can be difficult to get this information from people in prison. Some people do not want to provide information about dependent children and others who rely on them. I am not using that as an excuse, but one has to be alive to that point as part of the data collection service. All I can say to the noble and learned Lord is that I have this firmly in my sights. In this part of the criminal justice system, as, I would say, in others, data is really important and I am certainly focused on it.

I was going to make one other point on data, which I hope the noble and learned Lord will be pleased to hear. We will also consider not just the collection of data but what data can be published. It might be that not all data we collect can be published because of confidentiality issues, but we will certainly ensure that we publish what we can.

[Lord Falconer of Thoroton (Lab)]

This is a separate point. Amendment 215 would require the court to

“make inquiries to establish whether the offender is a primary carer for a child”

and, if it discovers that the defendant is, to then order a pre-sentence report about the circumstances of that child and the impact. Is the Minister asserting that that provision is currently in the sentencing guidelines?

[Lord Wolfson of Tredegar (Con)]

I hope I made that clear earlier; let me go back to my notes. I do not want to mislead the noble and learned Lord. As I understand it, the position is this: guidance was introduced in 2019 for probation practitioners, in addition to the legislation in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibility for children or dependants. The noble and learned Lord shakes his head—

[Lord Falconer of Thoroton (Lab)]

I am not disputing what the Minister says, but I read him as saying that that position is not reflected in guidance. He is saying something different: that if somebody asks for an adjournment to make inquiries, one has to be granted. That is obviously different from the amendment.

[Lord Wolfson of Tredegar (Con)]

I was going to come to the detail of pre-sentence reports a little later. Let me come to that and if the question is still alive, I will give way again.

I think I had completed what I was going to say about data, apart from one point. The right reverend Prelate asked about pregnancy data. In the time I have had available, I have been able to get the following response, but I am obviously happy to continue the conversation. In July this year, we published a national figure—for the first time, as I understand it—for self-declared pregnancies in the women’s estate and the total number of births that took place during the period in three categories: prisons, transit and hospital. That is found in the HMPPS Annual Digest. I do not know whether that has fully answered the question from the right reverend Prelate on specific data. If it has not, I am very happy to continue the discussion.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to have the opportunity to respond to this short but focused debate. I am particularly grateful to the noble Lord, Lord Beith, for the measured way in which he introduced the amendment, which raises difficult issues, as I think all speakers have recognised.

The Government’s aim in this area can be briefly stated. I understand there to be relatively little or perhaps no disagreement across the Committee on this point, certainly in the light of what the noble Lord, Lord Ponsonby of Shulbrede, has just said. The aim is this: we seek to protect children from those who might take advantage of their position to sexually abuse them. The provisions we put in the Bill followed detailed review and consideration. We feel they provide the best protection for young people while still balancing—this is a critical point—where possible their right to fully consensual sexual relationships. I must underline that point at the outset, because it is very easy to overlook it.

The positions of trust offences set out in the Sexual Offences Act 2003 were never intended to apply in all scenarios in which a person might have contact with or a supervisory role in respect of somebody aged under 18. If you do that, in effect you raise the age of consent by silence. If we are going to have a debate about the age of consent, let us have one—but let us not have an inadvertent, sub silentio raising of the age of consent by having too wide a category of positions of trust.

I acknowledge that this is a very complex area. With respect, the noble Baroness, Lady Jones, said that this was a first for her because she quite liked a Henry VIII power. I am not sure whether it is a first for me that I am agreeing with her from the Dispatch Box; I think I have done it once before, but if it is not the first time it certainly does not happen too often. But I do agree with her that this is a very complex area, because we are trying to strike the right balance between protecting young people and respecting the right of those aged 16 or over to engage in consensual sexual activity.

Therefore, although it is very tempting to say, “Well, there’s been a case here and a case there, let’s widen the definitions”, we have to act on the available evidence—not anecdote, supposition or a case here or there, but real evidence. The question therefore is, as I think the noble Lord, Lord Beith, put it, if I can summarise his speech in five words, “Why these and not others?” I heard him say that I am unlikely to persuade him. I remember when judges said that to me. I rarely did persuade them—but let me have a go anyway.

The answer is this: we have looked across the field. We have spoken to a whole load of stakeholders, which I will not read into the record, but the number is vast. We have concluded that those who teach, train, supervise, instruct or coach in a sport or religion are particularly influential over a child’s development. That is why they should be captured in the positions of trust provisions. The reason is that those settings allow for roles that involve very high levels of trust, influence, power and authority. Particularly in the case of those involved in a religion, the figures are often also well-established, trusted and respected in the local community. Both sport and religion provide a child—a young person, I should say, as this goes to 18—with a strong sense of belonging, whether to a team, a squad, a community or a faith group. As noble Lords will understand, deep feelings held by the young in respect of those groups can provide unique and special opportunities for predators to exploit or manipulate them.

Another factor that we have taken into account is that when we come to sport as usually understood—for present purposes I do not want to get into the question of whether chess is a sport; that is perhaps for another government department—the physical nature of that activity means that coaches have legitimate reasons physically to touch in perhaps a more general sense than just touching, in other words putting their hands around, moving, manipulating and repositing the body of the young person they are coaching. A sports coach therefore has far more opportunities for physical contact than other roles. This again can be manipulated by abusers.

The amendment focuses on drama and music as further settings. Again, I hope it is clear from what I have said so far that I absolutely understand the motivation for these amendments but, without strong evidence to support their inclusion, I respectfully suggest to the noble Lord that there is no reason to include drama and music and exclude other settings in which adults work with children. I underline the point that it was never the intention that all settings where adults interact with children would be engaged. I suggest that it is dangerous to say, “Because there’s been a case here or a case there, we should include them.” We heard from the noble Baroness, Lady Brinton, that there had been a case involving chess in the United States. “Does that mean that we include chess here?” I ask rhetorically. I suggest the answer is no.

I will make one point on ballet—I am not sure whether that is a sport, an art form or perhaps both—of which I am obviously fairly ignorant. On the inclusion of dance, I suggest to the noble Lord that our definition of sport in Clause 45 includes types of “physical recreation” engaged in for the purpose of “competition or display”. I consider that this definition of sport would include dance. That might deal with the ballet point specifically, although I accept that the noble Lord’s point goes wider than just ballet.

I think the noble Lord, Lord Paddick, accepted that, in a number of these cases, there is no hard evidence—but we do have isolated cases. As I hope I have explained, we are seeking to rely on what appears to us to be the available evidence. To pick up the question, “What evidence would make you include new categories?”, the only answer I can give is that we are not limiting the nature of the evidence that will make us happy to consider other categories. I do not want to limit or straitjacket the sort of evidence we might look at in advance. If we find that new evidence emerges that might justify legislating further, we will do so. That is why we have put the Henry VIII power into Clause 45, so that we can add further activities if it appears appropriate—I emphasise “appropriate”—in the light of new evidence.

To come back to my main point, what we seek to do is strike this balance between safeguarding young people and, on the other hand, protecting the rights given to them by Parliament to engage in sexual activity on a consensual basis once they have reached the age of 16. I fear I might not have persuaded the noble Lord, Lord Beith, of the correctness of the Government’s position, but I hope I have explained it to him. I none the less invite him to consider withdrawing his amendment.

[Baroness Hamwee (LD)]

My Lords, before my noble friend responds, I feel very uncomfortable at the proposition that we should wait for examples of problems in specific sectors before there are provisions to deal with them. I think I have said enough, actually.

[Lord Wolfson of Tredegar (Con)]

I will reply very briefly to that point. When I say “new evidence”, I am not saying that there must be, God forbid, an incident. I am not circumscribing or limiting the nature of new evidence. If there is new evidence without there being an incident, we will look at that as well. I am certainly not saying that we will legislate only when, God forbid, there has been a terrible case. But one has to be careful. If one draws this net too widely, the effect is, sub silentio, to raise the age of consent. That was never the intention behind this provision.

[Baroness Hamwee (LD)]

My Lords, may I pursue that? What evidence are we talking about, then? We are all giving examples of where somebody in a position of trust might be by themselves with the person who trusts them. I do not follow what the evidence might be. I keep thinking of examples that have not yet been mentioned. Art lessons is another. I have been in an art lesson where the tutor has helped me to produce what I have ineptly tried to produce on a piece of paper. One could go on. What is “evidence” in this context?

[Lord Wolfson of Tredegar (Con)]

The art lesson may be a good example. With respect, there is a huge gulf between the relationship of somebody to their art teacher, if they go to an art group, and the sort of intimacy that a physical sports coach has with somebody or the sort of power, control and sense of authority that a religious leader has over a young person.

I shall give one example of evidence, picking a made-up country from private international law. Let us say that, in Ruritania, there is a huge number of cases of a particular category. It might well then be said, “We can see there is a problem with this category. It has happened in Ruritania. The circumstances are the same as in the UK. You should add that.” That is just one example. I do not want to limit the evidence that we would rely on but, with respect, we cannot say that, because there has been a case in an art class or a case here and a case there, we will include all these categories. We should not include every circumstance in which adults have close contact with under 18 year-olds. I think the noble Lord, Lord Paddick, wants to come in.

[Lord Paddick (LD)]

I am grateful to the Minister for explaining the Government’s position but I do not understand the argument that we are surreptitiously changing the age of consent. If a 16 or 17 year-old wants to have a sexual relationship with their music teacher, they had better find another music teacher; the solution is quite simple. They should not continue in a professional relationship and have a sexual relationship at the same time.

[Lord Wolfson of Tredegar (Con)]

With great respect, the point put to me by the noble Lord, Lord Paddick, shows that if we draw this too widely, we are limiting the ability of a 16 or 17 year-old to have a sexual relationship with that person. This the balance that we want to strike. At the moment, there is nothing to prevent a 17 year-old having a consensual relationship with a person with whom they have a tuition relationship or other kind of relationship. The question is: where do you draw the line? We say the line should be drawn at sport and religion. If you draw it too widely, you impact on that person’s ability to have a sexual relationship with other adults.

[Lord Beith (LD)]

My Lords, I start by answering one of the Minister’s questions: what would constitute evidence? The answer is: the same kind of evidence that was sufficiently persuasive for the Government to include sport and religion in this definition. I would expect it to be on exactly that level, bearing in mind the context, the professional relationship and how it operated.

I start where I agree with the Minister. We are not seeking to change the age of consent in this legislation; it would be the wrong place to attempt such a thing, even if there were strong arguments for doing so. What should determine the position that the law provides in this area should not be the selection of certain sports because there appears to be more or less numerical evidence of abuse; nor should it be an attempt to import some new age of consent; it should be on the same basis, whichever area of activity we are talking about.

The Minister said something very interesting which will cause us to reflect between now and Report. He said that, in the Government’s view, dance—or ballet, at any rate—is included. There is a compelling argument for that, which is one of the reasons I was inspired to put down this amendment in the first place. This is a very physical activity during which people who are themselves very skilled at it have to explain—and sometimes demonstrate or assist those they are teaching—some quite extraordinarily physical things. That is done by hundreds and thousands of ballet teachers, and has been for many years, with total propriety, but it is a context in which abuse can occur. In that respect, as the Minister obviously realised, it resembles the kind of definition he brought to bear for sport.

I agree also that there is a balance between, on the one hand, defining a position of responsibility and placing responsibilities and limitations on someone who has such a position, and, on the other, interfering with the rights of 16 and 17 year-olds who have reached the age of consent. My noble friend Lord Paddick highlighted the difficulties in achieving that balance when he pointed out that we would hardly welcome a situation in which it was generally accepted as okay for someone in that kind of professional relationship to continue a sexual relationship when attention was drawn to it. We would mostly expect the professional person to believe that they had to end the relationship, even if it were entirely consensual.

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[Lord Wolfson of Tredegar (Con)]

My Lords, this group of amendments focuses on criminal damage and the need for Clause 46 to stand part of the Bill. Clause 46 addresses a sentencing limitation in the existing legislation to ensure that offenders who vandalise, attack or destroy memorials serve appropriate sentences that fit the severity of the crime.

The present position is this: where there has been criminal damage to a memorial and the value of that damage is less than £5,000, the court’s sentencing powers are limited in that the offence must be tried summarily and can attract a maximum penalty of only three months’ imprisonment or a fine of up to £2,500, which does not reflect in all cases the severity of the crime and the harm caused. We must remember that we are seeking here to provide a maximum sentence, not a mandatory sentence.

Clause 46 therefore removes this restriction by amending Section 22 of the Magistrates’ Courts Act 1980 so that where damage or desecration of a memorial occurs and amounts to an offence of criminal damage, the court will no longer be constrained in its sentencing options where the value of the damage involved in monetary terms is assessed to be less than £5,000. These are important changes that will ensure that courts can sentence appropriately, given the facts of the particular case.

I turn to the amendment from the noble Lord, Lord Paddick, to remove new subsection 11B from Clause 46(2) on criminal damage to memorials. New subsection 11B provides that moveable items such as flowers, flags or wreaths that are left in, on or perhaps adjacent to a memorial and—this is important—have

“(or can reasonably be assumed to have) a commemorative purpose”

will also

“be regarded as a memorial.”

It is important to recognise that items such as these, when placed at a structure such as a gravestone or—let us pick a topical example—the Cenotaph for the purpose of commemoration, albeit temporarily, should be covered by the clause. If someone goes to the Cenotaph, takes all the wreaths and chucks them around and destroys them, the fact that the value of those wreaths might amount to £4,683 ought not to prevent the court treating that offence with the severity with which I think everybody would regard it.

In the summer of 2020 there were attempts to set fire to the flag on the Cenotaph. The sentencing of those who burn the flag on the Cenotaph should not be limited by the value in monetary terms of the piece of fabric consumed by fire that is part of the memorial—ditto damaging a poppy wreath. The problem is that under the amendment that the noble Lord, Lord Paddick, wishes to make, those acts of vandalism and damage would not be covered as damage to a memorial. That is not right.

There are occasions when moveable objects such as these, when placed on a memorial, gravestone or similar structures, constitute the very essence of a memorial. A rose, when placed on the tomb of the unknown warrior, ceases to be—if I can put it this way, with apologies to Shakespeare—just a rose; it is something else. Those items should get the same protection as the memorial itself.

I therefore strongly disagree, respectfully, with the noble Baroness, Lady Jones of Moulsecoomb, when she says this is just about culture wars. It is not. Let me be absolutely clear: this Government have no problem with discussion, debate or challenge. If you want to say that Nelson was a great man or a terrible man; if you want to focus on Churchill’s successes in World War II or his actions in the Bengal famine, that is absolutely fine. What is beyond debate, I am afraid, and puts you into the proper realms of the criminal law, is defacing monuments.

Let us take an example from law. I did a little research, and it turns out that both the Grey of Gray’s Inn and the Lincoln of Lincoln’s Inn were leading advisers to Edward I, who in 1290 published the edict to expel the Jews from Britain. Does that mean I should go around defacing bits of Gray’s Inn or calling on Lincoln’s Inn to change its name? No. Because we recognise that these are matters for debate.

We can debate and discuss, but here we are talking about defacing monuments: criminal damage. That is not a debate on history. That is destroying the cultural fabric of this society. I heard the noble and learned Lord, Lord Falconer, say very deftly, if I may say so, that if it is a memorial to—I think I jotted this down correctly—“a much-revered and loved person”, that ought to perhaps go to the Crown Court and not the magistrates’ court. I respectfully suggest that a much-revered and loved person to one group of people is perhaps entirely the opposite to another; I do not agree that that is a workable basis for the law.

We have to say that the monuments we have are the monuments we have; they deserve protection. If we want to change a monument and have it pulled down, there are ways to do that. We can have a debate in your local council or a vote—it depends who the monument is being put up by—but we cannot have a right to deface monuments knowing that the protection given by the criminal law is too low in certain circumstances and, I suggest, extremely low in these circumstances.

The noble and learned Lord will forgive me if I do not respond in this debate to the point about violence against women and girls; we will debate that on many other occasions.

I now turn to the noble and learned Lord’s amendment about damaging or destroying life-saving equipment. I say at the outset that the case he outlined is extremely distressing and appalling. I hope I may be allowed to say that my sympathies and the Government’s of course go out to the family. The fact that it had to be locked with a PIN is, as I understand it, the genesis of his argument and what provoked the amendment. We therefore understand and agree on the intention behind the amendment. It is almost incomprehensible that anybody would damage or destroy obvious life-saving equipment.

While I understand the need for an effective deterrent, I respectfully suggest that the amendment will not have the desired effect, for the reason he almost touched on: it is already an offence to intentionally or recklessly damage or destroy property, including life-saving equipment, under the Criminal Damage Act 1971. The maximum penalty is 10 years’ imprisonment. Additionally, Section 1(2) of that Act goes further and makes specific provision for an aggravated offence of criminal damage where the defendant intends to endanger life or is reckless to such endangerment. That offence already attracts the possibility of life imprisonment.

If in this case it could be shown that the defendant intended to endanger life or was reckless, we already have a maximum potential sentence of life imprisonment. If that is not already proving an effective deterrent, perhaps the better course of action is for the various government departments responsible for water safety, health and safety and law enforcement to come together, see what is not working and identify working solutions.

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[Earl Attlee (Con)]

It seems pretty obvious that if you get hauled before the courts for damaging life-saving equipment, you are going to be in deep trouble. What you do not know is what the penalties are.

[Lord Wolfson of Tredegar (Con)]

We seem to be reaching a measure of agreement. I still say, with respect, that because we have that on the statute book at the moment, it is not appropriate to re-legislate in another place. I will take away the points put to me by the noble and learned Lord about more education and sign-posting, and clarifying and explaining to people what the law is. If people do not know what the law is in the Criminal Damage Act 1971, it is unlikely that they are going to be any more familiar with the Police, Crime, Sentencing and Courts Act 2021, as I hope it will be. If we have it in the law, however—and we do—with the reckless addition of a maximum sentence of life imprisonment, I suggest that that ought to be sufficient. On that basis, I invite the noble Lord not to proceed with the amendments. I hope that I have already responded to the amendment of the noble Lord, Lord Paddick.

[Earl Attlee (Con)]

My Lords, as usual, my noble friend has been very helpful, but what he has not convinced me about is why there is an increased deterrence value in having a maximum sentence of not, say, two years but one of seven years. I do not see why going to seven years is going to increase the deterrence value of the new offence.

[Lord Wolfson of Tredegar (Con)]

I am sorry, is my noble friend now back on the memorials point?

[Earl Attlee (Con)]

Yes.

[Lord Wolfson of Tredegar (Con)]

The short answer to that is that I did not make my argument on the basis of deterrence. Sentencing encompasses a number of factors: there is deterrence; there is the actual punishment for the offence; there is marking society’s disapproval at what was done. I hope that I made my argument very clearly on the first two. I was not suggesting that people would necessarily be deterred; I hope that they will be, but that is not the main basis of my argument.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for taking part in this short debate, particularly the noble Baroness, Lady Jones of Moulsecoomb, for her support, albeit coming at the issue from a slightly different angle to the one from which I was coming. I also thank the noble and learned Lord, Lord Falconer, for picking up on what I said, which is that this needs to be more targeted. I specifically said that Clause 46 “as drafted” is not suitable. It needs to be much more accurately targeted; otherwise, it enables people to make the accusation that I did not make, that this is about dramatically increasing the penalty for what could be very minor damage to a statue of a very divisive figure. In fact, I made reference to the fact that doing anything to a grave, for example, could be deeply distressing and it may be that the penalty needs to be increased for that particular purpose. Clause 46, however, goes far too wide and draws those who feel that it is about culture wars into the argument, where that would not be the case if it were more far more tightly drawn; but at this stage, I beg leave to withdraw my amendment.

Assisted Dying Bill [HL]

Lord Wolfson of Tredegar Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

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

My Lords, I join others in congratulating the noble Baroness, Lady Meacher, on bringing forward the Bill we have debated today. We have heard from many noble Lords this morning and this afternoon on both sides of the debate. There is plainly much on which noble Lords do not agree, but let me make three points at the outset which I hope will meet with broad—perhaps even unanimous—agreement.

First, I congratulate my noble friend Lady Davidson of Lundin Links on her maiden speech. She was limited in time today, but I look forward to hearing her speak often and, I hope, at greater length in the future. Secondly, I recognise the sincerity and commitment of all who have contributed to today’s debate. I feel privileged to have listened to such powerful and moving speeches on both sides of the argument, and to have the opportunity to respond briefly on behalf of the Government. Thirdly, I underline the point that this issue is ultimately a matter of conscience and one on which each Member of this House should vote—if we have a vote—and, certainly, take a position without regard to party affiliation or other grouping in this House.

I want to make two broad, substantive points in what I propose to be a shortish contribution. I hope the House will forgive me if, for obvious reasons, I do not on this occasion refer to individual contributions in a debate that is not on a government Bill. First, I want to explain why I am speaking for the Government today. Secondly, I want to set out the Government’s position.

As to the first point, I am responding to the debate because the Ministry of Justice is responsible for the criminal law in this area, found in the Suicide Act 1961, in England and Wales. Any change in the law to allow lawful assistance with suicide would, of course, have significant implications for other departments as well—the Department of Health and Social Care, for example, which would necessarily be responsible for the regulation of such lawful assistance—and, indeed, the Welsh Government. Essentially, however, what is being proposed is a change in the criminal law. As the law stands, there is no statutory exception to the offence of encouraging or assisting suicide under Section 2 of the 1961 Act. The Bill, therefore, would provide for an exception so that medical professionals in England and Wales could assist terminally ill people who fulfil the other terms of the legislation to self-administer medicines that would enable them to end their lives.

The current blanket ban has been challenged, unsuccessfully, through the courts on several occasions, including in the cases of Tony Nicklinson and Paul Lamb in 2014 and Noel Conway in 2017. Both Paul Lamb and Noel Conway died in June this year. It is right, I hope, to record on behalf of everyone in this House our deepest sympathy to their families. Their cases illustrated very clearly the very human predicament that lies at the heart of this difficult debate. Mr Lamb became quadriplegic following a car accident in 1990, and was incurably but not terminally ill. Mr Conway had been terminally ill with motor neurone disease. The case of Mr Conway, who would have benefited from this Bill, was heard by the Court of Appeal, presided over by Sir Terence Etherton, as he then was, as Master of the Rolls, from whom we have heard today in his more recent incarnation as a noble and learned Member of your Lordships’ House. I therefore summarise his court’s decision in his presence with some trepidation.

The Court of Appeal held unanimously that there is a real risk that a change in the law to legalise provision of assistance with suicide would have a serious detrimental effect on trust between doctors and patients. It also concluded that there is a rational connection between the prohibition in Section 2 of the 1961 Act and the protection of the weak and vulnerable, and that prohibition serves to reinforce a moral view about the sanctity of life and to promote relations of full trust and confidence between doctors and their patients. That is the current legal position, and that is why I am responding to this debate on behalf of the Government.

So far as the position of the Government is concerned, I can sum it up in one word: neutrality. But I mean real neutrality. If the will of Parliament is that the law on assisting suicide should change, the Government would not stand in the way of such change but would seek to ensure that the law could be enforced in the way that Parliament intended. That would include, as I have discussed privately with the noble Baroness, Lady Meacher, reviewing the language in some parts of the Bill to ensure that it reflected what Parliament meant. Although I apprehend that I may not have gone quite as far as some contributors would have wanted me to go, including, I think, the noble Baroness, Lady Mallalieu, I hope that that is at least a partial answer to the question that she posed.

It may seem obvious to us, but it might not be obvious to all those watching our proceedings—and we should be conscious of the interest that this debate has engendered outside the House—so I want to make it clear that the Government’s neutral position is certainly not an indication that we have no interest in the topic or do not care much one way or the other. Our neutrality is not a shrug of the shoulders; we are not uninterested in the outcome. Rather, as a Government we are disinterested as to the outcome. Precisely because the matter is so important, and is a matter of conscience, we take no partisan position. We are impartial and neutral.

The Government therefore remain of the view that any change to the law in this area is an issue of conscience for individual parliamentarians. We all have to make up our own minds, based on our background and all the other matters that will shape our conclusions. In that context, I reassure my noble and progressive friend Lord Leigh of Hurley that, when it comes to religion, we all by some miracle of cognitive geometry believe that we stand in the middle of the line.

We have heard some very moving and personal speeches today; I think that the word “sacred” was used, and I respectfully adopt it. We all have personal experiences in this area. I have been thinking of my younger sister Rina, of blessed memory, who died only last month. Therefore it is right, in the Government’s view, that it is a matter for Parliament to decide and not one for government policy so, if there is any vote today, these Benches will have a free vote. A vote here is called a Division, and obviously there is a division across the House, but I hope that we are united in wanting to protect the rights of vulnerable people from direct or indirect pressure to commit suicide. The central issue is, therefore, whether a blanket ban on assisting suicide is a necessary and proportionate way of achieving this.

I think everybody will agree that we have had a long and very good debate. It will become longer—but, I fear, no better—if I take up any more of your Lordships’ time. I will therefore conclude by assuring the House that the Government will reflect carefully on all that has been said here today, including the various points, suggestions and exhortations made across the House on the importance of palliative care. I respectfully thank all noble Lords for their heartfelt contributions to today’s debate, which, if I may say so as a relative newcomer here, has shown this House and Parliament at their best.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

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

My Lords, I begin by placing on the record my apologies for not being in my place at Second Reading for personal family reasons. I also place on record my thanks to many noble Lords for their kind and supportive words and messages; I am very grateful.

Turning to the substance of the matter before the Committee today, Clause 2 of the Bill proposes an increase in the maximum penalty for the offence of common assault and battery when that offence is committed against an emergency worker. The definition —this is important—of “emergency worker” is set out in Section 3 of the Assaults on Emergency Workers (Offences) Act 2018. The pandemic has reminded us, if we needed reminding, that the vital front-line role that our emergency workers play, and indeed always have played, is of immense importance to our society. But we have recently seen an increasing number of assaults being committed against emergency workers in the course of their duties. This will simply not be tolerated.

Last summer, we delivered on our manifesto commitment to consult on this issue. We found that the large majority of respondents supported our proposal to double the maximum penalty to two years. This will ensure that the law provides our police and other emergency workers with sufficient protection to carry out their duties and will enable the courts to pass sentences that reflect the severity with which we view these offences. This measure builds on previous legislation introduced by the Government back in 2018. We have enhanced already the protection of emergency workers where more serious assaults such as ABH and GBH are committed—I think the noble Lord, Lord Paddick, made this point. These more serious offences obviously carry higher maximum penalties than common assault. Where such offences are committed against an emergency worker acting in the course of their duties, this is regarded as an aggravating feature of the offence, warranting a higher sentence.

Let me deal first with the amendment from the right reverend Prelate the Bishop of Gloucester. I am grateful to her for tabling the amendment, and to the right reverend Prelate the Bishop of Durham for acting as her spokesman this afternoon—I was going to say, “as the Aaron to her Moses”, if I may put it in those terms. The purpose of her amendment is to broaden the definition of “emergency worker” to encompass all staff in custodial institutions. The Committee will be aware that all prison officers, prisoner custody officers and those who exercise functions associated with these professions are already included in the existing definition of “emergency worker” from the 2018 legislation.

The problem is that broadening the definition of “emergency worker” can have unintended consequences. The broader definition would capture anyone employed or engaged to carry out functions in a custodial institution, which can extend to prisoners who undertake jobs within the institution. The amendment would then place this group of convicted prisoners on the same statutory footing as prison officers, constables and NHS staff. That would be unacceptable.

By means of increasing the maximum penalty for the assault of an emergency worker, we want to protect those who protect others. That is why it is right that emergency workers are on a different statutory footing. Clause 2, therefore, does not seek to amend the underlying definition of “emergency worker” that was accepted by Parliament when passing the 2018 legislation. I acknowledge the point made by the noble Baroness, Lady Fox of Buckley, given the work of the Bar Council in this area, but it is right, I suggest, that we acknowledge the special position of emergency workers, as Parliament did back in 2018.

Of course, that is not to say that any form of violence in custodial institutions is acceptable; it plainly is not. We want to make sure that our prisons are safe for all staff, as well as all prisoners. Picking up on the point from the noble Lord, Lord Ponsonby of Shulbrede—

[Lord Bassam of Brighton (Lab)]

I have a pertinent question. I am troubled by the rather lame excuse that the noble Lord offers from the Dispatch Box about the “unintended consequences”. Surely it would be very simple to put in place an exemption that barred prisoners from benefiting from that clause. I cannot understand why the noble Lord is so resistant to this particular move; there must be a workable way round it. I have been a Home Office Minister and have had lame excuses written for me—this sounds like one of those.

[Lord Wolfson of Tredegar (Con)]

I am afraid that the noble Lord appears to have missed the point of principle that I made before making what he characterises as a lame excuse, but which I thought was in fact rather a good point. The point of principle is that we have a definition of “emergency worker”, which Parliament accepted back in 2018. It is a good working definition, and we shall stick with it; that is a point of principle. The point on this amendment was that it goes too far because it has those unintended consequences. The noble Lord should not lose sight of my first point by concentrating only on the second, which he regards as lame and which I regard, from a legal perspective, as quite a nice point—I do urge upon him the point of principle as well.

I was coming to the point that we value prison officers. The noble Lord, Lord Ponsonby of Shulbrede, laid down the gauntlet and asked that we do so from the Dispatch Box. Of course we do. Our position on this amendment has nothing to do with not valuing prison officers or the work that anybody does in prison.

The right reverend Prelate the Bishop of Durham asked what we were doing to protect prison staff. Those who carry out corresponding functions to prison officers and prison custody officers are already included in the definition of an emergency worker. Offences against those people will be treated as an aggravating factor in sentencing guidelines. That is what I wanted to say in response to that amendment.

--- Later in debate ---

[The Lord Bishop of Durham]

I am sorry—I thought very carefully about whether I should intervene. I was genuinely so taken aback by the Minister’s reference to prisoners being included that I nearly leapt up immediately. The question was then asked, but I have tried to replay it in my head. I absolutely understand that the Minister meant no offence but, out of context, I fear how it might be understood by those workers, such as chaplains, tutors and so on. By, in a sense, lumping them together with prisoners who have been employed, it could easily be misheard outside this House. I know that was not the Minister’s intention, but I ask him to put on the record that it was not what he meant.

[Lord Wolfson of Tredegar (Con)]

I am extremely grateful for the opportunity to do that. As I am sure everybody recognises, that was not the point I was making. I appreciate that it was regarded as lame by some people, but the point that I sought to make was that the distinction and purpose of the amendment was to expand the definition from prison officers to other people working in prison. My point was that from the way in which it is drafted—and I appreciate that it could be redrafted—it could and would be read so broadly as to include prisoners who were doing jobs in prison. It was certainly not what I was saying to place prisoners doing jobs in prison with chaplains and others who are working in prison. I am grateful to the right reverend Prelate for giving me the opportunity to make that clear, if it was not already.

[Lord Brown of Eaton-under-Heywood (CB)]

I seek one matter of clarification, although I should not need to. Is there no way, apart from raising the maximum sentence by legislation, by which government could bring to the attention of the prosecuting authorities, sentencing courts and so forth the aggravating features that cover all these amendments? There are the emergency workers in the first place, and the nauseating offence of potting, which I confess not to have heard of before, and assaults on prison officers. There are those who find themselves, in the ordinary course of their employment, exposed in these highly vulnerable circumstances to miscreance of an obvious character. Is there no governmental input to the Sentencing Council? Can the Government not influence those sorts of bodies to isolate the fact that these are manifestly aggravating circumstances, which should go to raise not only the likely sanction being imposed but the likelihood of prosecution?

[Lord Wolfson of Tredegar (Con)]

As the noble and learned Lord knows far better than I do, one has to distinguish between aggravating and mitigating factors and the likelihood of prosecution. With regard to the Sentencing Council, I am confident that it already has that point on board. The question before the Committee is that of maximum sentence rather than aggravating or mitigating factors. I have also said—and, I hope, explained—that there is clear guidance in place to make sure that, when these offences are committed, they are dealt with either through the courts or through prison adjudication.

[Baroness Chapman of Darlington (Lab)]

I just want to take the Minister back to the comments made by the right reverend Prelate the Bishop of Durham on the definition of prisoners as workers. I cannot think of any other legislation where a prisoner enjoys the same rights as a worker. There are many rights that workers enjoy in this country, but none of them that I am aware of apply to prisoners. There must be a way around this, perhaps by a government amendment or some sort of redrafting, that would allow the suggestion made to be incorporated.

[Lord Wolfson of Tredegar (Con)]

I think I made it clear earlier that I was making two points in response to this amendment. The point that we are focused on at the moment is whether we could have more—and I say this respectfully—felicitous drafting than the drafting of the amendment that we currently have. I have accepted in principle that one could, and I made that clear in my previous answer and my answer to the right reverend Prelate. However, I do not want us to lose sight of my first response, on the point of principle: we have a definition in the 2018 Act of “emergency worker”, and that was regarded in 2018 as suitable and fit for purpose. It treated that definition as a separate status and a distinct group, and the Government’s position is that definition was good in 2018 and remains so now.

[Earl Attlee (Con)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. On Amendment 11 from the right reverend Prelate, I am aware of the problem that he describes, but I did not make my new offence cover other Prison Service staff. I deliberately excluded probation officers just for reasons of simplicity, but if I managed to make my potting amendment find favour with the House, I would have to decide who was to be protected by it.

I am slightly disappointed by my noble friend’s response, because I thought that I was offering him the best thing since sliced bread, but he turned me down. The problem for the Minister running the Prison Service is that he cannot direct the police force to investigate these issues and, as he carefully explained to the Committee, he cannot direct the Crown Prosecution Service to pay greater attention to these offences either. My noble friend has no tools to protect prison officers—so I suspect that the Prison Officers’ Association will be a little bit disappointed with his approach.

I think we identified the underlying issue, which is the probability of being prosecuted for these sorts of these offences, and we need to have another look at that. I shall, of course, withdraw my amendment, subject to the usual caveats and discussions with the Opposition Front Bench.

Child Trust Funds

Lord Wolfson of Tredegar Excerpts

Monday 11th October 2021 Lords Chamber

[Lord Young of Cookham]

To ask Her Majesty’s Government when they will issue their consultation on access to Child Trust Funds by adults with a learning disability.

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

My Lords, since the House last considered this matter, I have been working closely with officials to deliver this consultation. We have had discussions with various stakeholders. Our work on drafting the consultation was completed just before the reshuffle. I have now discussed the issue with the new Secretary of State. I am hopeful that the consultation will now commence very shortly.

[Lord Young of Cookham (Con)]

I am grateful to my noble friend. In the 12 months since child trust funds matured, more than 10,000 children with learning disabilities have been entitled to the proceeds, but only a handful have negotiated the tortuous Court of Protection process advocated by the Government. Up to 1,000 have had funds released by financial institutions using a streamlined procedure not endorsed by the Government but likely to be in the consultation document. Does this not underline the need for urgency in amending the law, so that these children can get the funds to which they are entitled?

[Lord Wolfson of Tredegar (Con)]

My noble friend does not have to impress on me the need for urgency. I have been working hard on this matter since it was first raised. The problem with the industry scheme is not that it is not endorsed by the Government but that it is inconsistent with the Mental Capacity Act, a piece of legislation passed by Parliament.

[Lord Flight (Con)]

This issue has been raised five times by my noble friend Lord Young and this is the second time that I have supported him. It is a travesty that those with learning difficulties who are over 18 cannot access their child trust funds. It should not be necessary for parents to apply for a Court of Protection order on behalf of their adult children. As my noble friend Lord Young pointed out, only a handful of parents have negotiated the Court of Protection route successfully. There are surely less demanding ways to protect their beneficiary children’s interests. Some financial institutions have released funds using a streamlined procedure. Hopefully, this will be refined in the consultation paper, but it is not currently endorsed by the Government. The issue currently affects 10,000 children with trust funds who cannot simply access their cash when they reach the age of 18 without a court order. Can the Minister advise the House as to whether the DWP working group has considered this issue?

[Lord Wolfson of Tredegar (Con)]

My Lords, let me give a short answer to a long question. It is not a question of whether going to court should or should not be necessary: it is necessary because Parliament passed the Mental Capacity Act, which requires it. In 1995, the Law Commission recommended a small payments scheme. That was not taken up by Parliament, but I am now consulting on it, because it seems to me that that is the right way forward.

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare my interest as chair of the National Mental Capacity Forum. Will the consultations specifically consider how to exclude coercion, malintent or diversion of the person’s funds for use other than purely in their interest, if there is no lasting power of attorney or court-appointed deputy?

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Baroness has put her finger on the point. What we have to do here is balance the need to protect vulnerable young adults—because that is what they are—with their desire and that of their parents and guardians to access small amounts of money speedily and efficiently. It is that balance which the consultation will be aimed at.

[Lord Touhig (Lab)]

My Lords, I declare my interest as a vice-president of the National Autistic Society. Seven months ago, I told the Minister that, for families of autistic youngsters seeking to access the child trust fund, the Mental Capacity Act code of practice was a barrier. Mr Justice Hayden in the High Court said that the wording of the guidance needed to be revisited. In reply, the Minister said that he had met Mr Justice Hayden and that the Government were looking to address this. Can he tell the House: whether the Government have completed their look, and can he give us an update?

[Lord Wolfson of Tredegar (Con)]

My Lords, the position with the Court of Protection is this: we did invite the court to look afresh at all its forms—that is a matter for the court and not the Government—and it declined to revise its forms. We want to do two things: first, consult on the small payments scheme, which I think really is the answer here; and, secondly, educate people. If people apply to the court before they turn 18, there is no time pressure and everything can be completed before the legal problem arises—which is at the point when the child becomes an adult and the parents, therefore, cannot access the money without an order of the court.

[Lord Naseby (Con)]

My Lords, I declare an interest as chairman of the Children’s Mutual, which, I believe, was the largest provider of child trust funds. Has my noble friend’s department consulted with the senior management of the Children’s Mutual and, perhaps, a couple of other leading providers? I do believe that, when the child trust fund was launched, there was some provision in case of difficulties that might arise at a later time. In any case, now may be the right time to make sure that the industry can help.

[Lord Wolfson of Tredegar (Con)]

My Lords, we have consulted widely across industry with the major providers. I have to say to my noble friend that it is the case, I am afraid, that there was a lacuna here. I think the noble Lord, Lord Blunkett, who is not in his place now, candidly accepted that when child trust funds were put in place, no thought was given to people who would not be able to give instructions to banks at the time they turned 18. The Mental Capacity Act in 2005 only made that position more difficult. So we are now dealing with a problem that has been exacerbated by subsequent legislation. The way to deal with it is a small payments scheme: that is what we are going to consult on.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, a few weeks ago, I spoke to Teddy Nyahasha, who is chief executive of OneFamily, a financial services firm that has administered 1.6 million child trust funds. The central point Mr Nyahasha made to me was that small donations or payments of up to £5,000 are made through something called the fair access protocol. He was seeking some recognition of that. If there was some recognition, there would be wider access for other charities and providers to expand the fair access protocol. Can the Minister say what he is doing about this?

[Lord Wolfson of Tredegar (Con)]

My Lords, my officials met Mr Nyahasha on 17 August, and we are well aware of this proposal. The problem is that it is not a matter of the Government recognising the scheme; the scheme, I am afraid, is inconsistent with the Mental Capacity Act, and it is fundamental to the rule of law that the Government act in accordance with legislation passed by this Parliament. Therefore, we cannot just bless schemes that are inconsistent with the legislation. If we want to solve this, we have to change the legislation. That is what the consultation is aimed at.

[Lord Addington (LD)]

My Lords, it is quite clear that the cock-up school of history has been proven correct on this issue. The Minister has said that the law is incompatible with the current status and intention of this. Surely we have enough time in Parliament to change the law. Will the Government guarantee that we get that time?

[Lord Wolfson of Tredegar (Con)]

My Lords, guaranteeing government time might be a little above my unpaid pay grade—but what I can say is that there will be a consultation. As the question from the noble Baroness, Lady Finlay of Llandaff, pointed out, there are interests to balance here. There will be, I hope, an eight-week consultation, and I invite everybody to be part of that. Following that, if we are going to legislate, I agree that it is something we should be getting on with.

[Baroness Altmann (Con)]

My Lords, I can only encourage my noble friend in his worthwhile endeavours to sort out this situation. I think a small payments scheme makes sense and, as the mood of this House shows, there is great support for allowing learning-disabled children to access the money that they need. In real life, Mikey, whom we have heard about before in this House, was able to get out during lockdown, and other children have been able to access sports therapy. Will the Minister acknowledge that this is a monumental success for the private financial industry, which for once has done its utmost to try to help people take money out of their accounts, which would cost them fees?

[Lord Wolfson of Tredegar (Con)]

My Lords, I do think that the small payments scheme is the way forward. One of the mysteries in this cock-up, if I can use that word from the Dispatch Box, is why a proposal from the Law Commission in 1995 was, it seems from Hansard, not picked up by anybody in 2005 when the Mental Capacity Act was passed. It is that problem that I am now trying to resolve.

[Lord Triesman (Lab)]

My Lords, I welcome the timely Question from the noble Lord, Lord Young. There are some other funds directed at children with distinct needs. Her Majesty’s Government have repeatedly told local authorities that the premium plus grant, which is made available to children who are adopted from care in England and Wales, should be available to children adopted from overseas to ensure real equality for these kids, who often have significant educational difficulties. Will the Minister reissue the advice that Nick Gibb has issued and enforce the provisions of the Children and Social Work Act 2017 for these adopted children, and will the Government compel recalcitrant local authorities to act speedily and properly?

[Lord Wolfson of Tredegar (Con)]

With respect, my Lords, I think that that is a question for the Department for Education. I will pass it on and ask the department to write to the noble Lord with an answer.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the time allowed for this Question has elapsed.

Non-fatal Strangulation and Suffocation

Lord Wolfson of Tredegar Excerpts

Thursday 8th July 2021 Lords Chamber

[Baroness Newlove]

To ask Her Majesty’s Government what assessment they have made, if any, of (1) the number of non-fatal strangulation and suffocation incidents each year in England and Wales, and (2) the division of such incidents between (a) cases of domestic abuse, (b) cases of sexual violence, and (c) other situations.

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

My Lords, while the Ministry of Justice holds significant information on offences, data is not collated centrally beyond registering the offence under which a defendant is prosecuted, convicted or sentenced. Non-fatal strangulation is not yet a specific offence, so it is difficult to identify how many people have been convicted of the various offences that can involve strangulation. Nor are strangulation offences likely to fit neatly into the categories of domestic abuse or sexual violence.

[Baroness Newlove (Con) [V]]

[Inaudible]—and the new specific offence being introduced in the Domestic Abuse Act. Does my noble friend agree that assessing the scale of the problem is a priority so that the Government can be sure that there will be appropriate forensic, medical and other services for victims across England and Wales when the offence is introduced? Currently, forensic services tend to be available only when the attack is part of a sexual assault, and the majority of these attacks take place within domestic abuse, not involving sexual abuse. Does my noble friend therefore recognise that where there is forensic medical evidence, it should be documented and that already there are too few forensic medical services, so the new specific offence of strangulation and suffocation will require forensic services to be expanded?

[Lord Wolfson of Tredegar (Con)]

I did not hear the first part of my noble friend’s question but, on the point she mentions, we seek to capture data in an appropriate way. As I explained, we focus on the offence, so when the new offence of non-fatal strangulation comes into force, we will be capturing data for it and that will, of course, help the services that she mentioned to provide their work as well.

[Lord Blunkett (Lab)]

I commend the noble Baroness, Lady Newlove, on her continuing tenacity. Will the Minister clarify whether there is a timescale for ensuring that real-time, important data will be collated, and will it be held centrally, once the police services have got their act together?

[Lord Wolfson of Tredegar (Con)]

My Lords, we are looking to bring in the offence of non-fatal strangulation as soon as we can. We waited to bring it in after Royal Assent to make sure that all the various services, including the police, are ready to investigate and prosecute it. Once we have the data, it will be used in an appropriate manner.

[Baroness Burt of Solihull (LD) [V]]

Will the Minister consider launching an awareness campaign to run alongside the new offence so that the public are made more aware of the danger and criminal consequences of strangulation and suffocation? Does he agree that this is needed not just to help those being attacked as part of domestic abuse but to counter the normalisation of strangulation in pornography?

[Lord Wolfson of Tredegar (Con)]

My Lords, I agree that an awareness campaign is important. Of course, having the offence itself will raise awareness. Perhaps I may make a topical point. We know that domestic abuse goes up when there are big football matches and, while we all want England to win, we must remember those for whom “It’s coming home” is a threat often accompanied by alcohol and violence.

[Baroness Bertin (Con) [V]]

My Lords, I am always shocked that many police forces still do not have specialist domestic abuse units. Does my noble friend the Minister agree that now we have offences such as non-fatal strangulation, the provision of those units and specialist training for front-line officers are even more crucial? What steps are the Government taking to ascertain the proportion of domestic abuse cases that are dealt with by specialist teams, in order to improve the situation?

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right. We need important work by the police in this area. The College of Policing has issued guidance to all its forces to ensure that domestic abuse receives proper priority, and 29 forces have received that training as of June 2021. A recent evaluation showed a 41% increase in arrests for controlling or coercive behaviour.

[Baroness Hussein-Ece (LD)]

My Lords, this week, an interim report from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services had the headline:

“Epidemic of violence against women underway in England and Wales”.


The report contained the shocking figures of 1.6 million women who had experienced domestic abuse up to last year, and more than 150,000 rape and sexual offences recorded by police, 84% of the victims being women. Is there any cross-governmental action on engagement with men and boys to educate about and campaign against the causes of male violence and misogyny, and deal with what is now described as a “rape culture”?

[Lord Wolfson of Tredegar (Con)]

My Lords, I recently answered questions on the End-to-End Rape Review Report, which set out a robust programme of work right across the criminal justice system and beyond to make sure that we respond appropriately to rape and sexual violence offences. We want to increase the number of cases reaching court, reduce the number of victims who withdraw from the process and ultimately put more rapists behind bars.

[Baroness Eaton (Con) [V]]

My Lords, is the Minister aware of the Training Institute on Strangulation Prevention in California, which is helping tackle the crime of strangulation by sharing knowledge and training resources in the United States? Does he agree that, given the very welcome new offence in the Domestic Abuse Act, it would be sensible to investigate how a similar centre for expertise here could help drive the changes that the Government are making to tackle strangulation and suffocation? It could share training resources, encourage the sharing of knowledge and co-ordinate research so that more victims of this violence could be protected, and more offenders held to account for these crimes.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am confident that my officials will be aware of that programme, but I personally am not. Could my noble friend write to me—or I will write to her—so that we can exchange information about that? It sounds like a very useful programme and I would be very happy to learn more about it.

[Lord Harries of Pentregarth (CB) [V]]

The noble Baroness, Lady Newlove, is to be warmly congratulated on her successful campaign to include non-fatal strangulation in the Act. Does the Minister agree that, for it to be effective, we must have the kind of information that the noble Baroness has asked for—both the number of cases and their relationship to sexual violence more widely? I understand that it is not possible to have that information available now, but will he perhaps commit to reporting to Parliament within a year, when the Act has been in operation for a year, in response to her question about those figures?

[Lord Wolfson of Tredegar (Con)]

My Lords, we have to be a bit careful here. There will be a new offence of non-fatal strangulation, but non-fatal strangulation can also be an element in many other offences such as grievous bodily harm with intent. It can form part of a course of action that amounts to the offence of controlling and coercive behaviour. It can form part of just drunken thuggery outside a pub or a night club. We therefore have to be very careful. We collect statistics on offences; we do not really collect statistics on behaviour, and that lies at the heart of a number of the answers that I have given today.

[Baroness Wilcox of Newport (Lab)]

My Lords, this amendment to the Domestic Abuse Bill was hard fought for by victims and by Members across all parties in both Houses. What steps are the Government taking to ensure that the relevant organisations are properly ready to implement the new offence of strangulation and suffocation? Have processes been put in place to ensure that training and guidance will be available before the offence comes into force, so that the police, the CPS, the courts, the health service and local authority domestic abuse partnerships are prepared and sufficiently resourced to tackle this crime effectively from its implementation?

[Lord Wolfson of Tredegar (Con)]

My Lords, of course we need all agencies to be aware of their responsibilities. I have already spoken about the police. To pick another example, judicial training in domestic abuse is included in family law and criminal courses run by the Judicial College; it is prioritised for induction and continuation training. All judges get that training before they hear family cases and are therefore on top of domestic abuse issues.

[Lord Thomas of Gresford (LD) [V]]

My Lords, may I underline the point made by the noble Lord at the beginning of this session? My daughter-in-law did a thesis on the connection between violence, domestic abuse and sporting events. It is clearly a considerable problem. He is right to remind us of that.

The New Zealand Law Commission advised that the offence should require proof of strangulation but not proof of injury, on the basis that so many of these strangulation incidents do not cause visible physical injury. Is that the approach that the noble Lord is taking? Where does consent come into the new offence?

[Lord Wolfson of Tredegar (Con)]

My Lords, I will take the point about visible signs of injury first. A visible sign of injury is not needed: the offence requires the Crown to show beyond reasonable doubt that the person strangled or otherwise did something to affect another person’s breathing. You do not necessarily need visible signs of injury. The consent point raised by the noble Lord is a huge legal point. I summarise it by saying that it effectively follows the decision of the House of Lords in R v Brown that you cannot consent to serious harm. To say any more would, I am afraid, exceed the time allowance.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the time allowed for this Question has elapsed.

Royal Commission on the Criminal Justice System

Lord Wolfson of Tredegar Excerpts

Tuesday 6th July 2021 Lords Chamber

[Lord Ramsbotham]

To ask Her Majesty’s Government what progress they have made with the establishment of the Royal Commission on the Criminal Justice System announced in the 2019 Queen’s Speech.

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

My Lords, the Government are absolutely committed to the delivery of this key manifesto pledge. At the onset of the pandemic, our focus was rightly on ensuring that the criminal justice system continued to operate in a Covid-safe environment. Significant new programmes of work were launched to support recovery and build back a better system. We believe it is right to focus on these priorities over the coming months, so we have paused work on the royal commission for now.

[Lord Ramsbotham (CB) [V]]

My Lords, I thank the Minister for that disappointing reply. The last time I asked his predecessor this Question, I was told that a committee in the Ministry of Justice was looking into the issue. I must admit that I deplore the deliberate discourtesy to Her Majesty the Queen of asking her to announce something which the Government have no intention of implementing.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid that it is now customary for me to be more disappointing than my predecessor, but there was no discourtesy to Her Majesty the Queen or, indeed, anybody else. The Government do intend to hold a royal commission: the question is, when. We are still in the middle of a pandemic so we are focused on its effects and have paused the work on the royal commission.

[The Lord Bishop of Rochester]

My Lords, I welcome the noble Lord’s Question. As one who is soon to depart this place, I hope that he continues to pursue this and other such matters with his customary vigour and determination. Noble Lords will know of the significant contribution of voluntary and charitable groups, including those which are faith based, to work in the criminal justice sector. Many of these organisations are keen for the work of the royal commission to proceed as soon as possible in order to provide a framework for future work. Can the Minister confirm that such groups will have an opportunity to contribute in a substantive way to the royal commission’s work?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am well aware of the work that the voluntary sector does in this area, particularly faith-based groups. When the royal commission launches, it will be seeking views and evidence from a wide range of stakeholders within the criminal justice system and beyond, including the voluntary sector and the faith-based groups the right reverend Prelate referred to.

[Lord Garnier (Con)]

My Lords, I do not know whether I am a stakeholder or whether I can see anything being built back better, but while the Government are pausing they really should concentrate on improving the condition of the prison estate. It is woefully overcrowded: 85,000 to 90,000 prisoners are now living in squalid conditions. Will my noble friend please persuade the Ministry of Justice and the Government as a whole to get on and do something about the disgraceful state of our prisons?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not sure that we need any persuading, because I am not sure that there is anything between my noble and learned friend and myself on the importance of a proper prison estate. We have of course had to pause various programmes because of the Covid pandemic. We are now seeking to reinstate those programmes and—if I may use the phrase—build back a better and more appropriate prison environment.

[Lord Woolf (CB) [V]]

My Lords, it is a pleasure to follow my noble and learned friend Lord Garnier. I was going to congratulate the Government on deciding that there should be a royal commission, but I am now nervous as to whether it will be pursued as it should be. Royal commissions have obtained a reputation for delay, and this is an unfortunate precedent for what is happening now. I hope, however, that we will soon hear what the royal commission’s terms of reference are. I urge the Government that when they determine those terms, they make it clear that there is a clear distinction between criminal and civil law. All too often, that boundary is being blurred—indeed, it could be said that there has been considerable trespass on that boundary. A clear statement by the royal commission could remedy that situation.

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord will have heard that we have paused work on the royal commission. When we reactivate it, the terms of reference will be an important part of it. He is right to say that there is a distinction between civil and criminal law but with great respect, I am not sure whether it is as sharp as he identifies. The noble and learned Lord will be aware that trespass itself can be both criminal and civil.

[Lord Morris of Aberavon (Lab)]

My Lords, as important as publishing the terms of reference of the royal commission is, when will the Government also tackle effectively the immediate problem of the backlog in criminal trials? What is the Government’s response to the Lord Chief Justice’s comments on the temporary reduction in the size of juries and perhaps the use of Diplock courts, with the agreement of the defendant?

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord is right that we have to make sure that people have their cases heard within an appropriate time. We have opened 60 Nightingale courts, and we now actually have more rooms available for jury trials than we had before the pandemic. The important point is to make sure that we are running the criminal justice system as hot as we possibly can, and that is exactly what we plan to do over the coming year. There is no limit on the number of sitting days in the criminal courts this year.

[Lord German (LD)]

My Lords, the Minister may be disappointed but I am dissatisfied in the extreme with the fact that the noble Lord, Lord Ramsbotham, was told in November last year that staff had been appointed to this royal commission. If staff have been appointed, have they now been laid off and are doing other jobs? Why have they not yet prepared the terms of reference and the terms by which the commissioners might be appointed? Surely the royal commission is not a programme which is just paused; it is far more significant. I think the Government need to recognise that, because we are being let down badly.

[Lord Wolfson of Tredegar (Con)]

I agree, with respect, with the noble Lord that the royal commission is extremely important. That is why we want to make sure that we have proper and focused terms of reference and that the work to set up the royal commission is done at a time when we can do it properly. There is a huge amount of work being done at the moment throughout the criminal justice system to respond to an unprecedented pandemic. I suggest that it is right in those circumstances to pause the work on the royal commission; we will come back to it after we have dealt with the pandemic.

[Baroness Gardner of Parkes (Con) [V]]

My Lords, given that the number of prisoners in England and Wales is predicted to rise to a post-war high of nearly 99,000 by 2026—as reported in the Daily Telegraph—can the Minister comment on what the priorities will be for the royal commission on the criminal justice system, and whether these need to be prioritised or added to in light of the impact of the Covid epidemic on the criminal justice system and this predicted increase in the number of prisoners?

[Lord Wolfson of Tredegar (Con)]

My Lords, the last point the noble Baroness made is absolutely right; I sought to make it earlier. Of course, the priorities for the royal commission need to be prioritised and perhaps added to in light of the impact of the Covid pandemic. That will obviously include the effect on the prison estate as well.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, there have been three Questions in your Lordships’ House to the Ministry of Justice in the last two weeks: on inaccessible child trust funds, difficulties about marriage law, and now the criminal justice system. In all three areas, Members of your Lordships’ House described the talk from the Ministry of Justice and then the doing of nothing. On criminal justice, the Chief Inspector of HMCPSI described the pre-Covid backlog as “unacceptable”. A few days ago, the Lord Chancellor apologised for the massive reduction in rape prosecutions. A few days before that, the chair of the Bar Council said that unless the Government commit urgently to massive investment in the criminal justice system, the backlog will get worse. There is currently a backlog of 59,000 cases in the Crown Court. When will that backlog be dealt with, and what additional investment will be put into the criminal justice system to deal with it?

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble and learned Lord raises three issues. Child trust funds were set up under a Labour Government and, as the noble Lord, Lord Blunkett, pointed out to this House, no thought whatever was given to the impact of the legislation—the Mental Capacity Act—on people’s access to those funds, so we are sorting that out. Marriage law goes back to 1847. The Law Commission is looking at it, and we are sorting that out as well. A few weeks ago, I laid before the House regulations to enable people whose marriages had been delayed to get married outdoors this year. The criminal justice system is in the middle of a pandemic, and we are responding to that as well. The noble and learned Lord is, with respect, quite wrong to lump these three quite disparate matters together.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the time allowed for this Question has elapsed. We now come to the second Oral Question.

Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021

Lord Wolfson of Tredegar Excerpts

Tuesday 6th July 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the draft Regulations laid before the House on 27 May be approved.

Considered in Grand Committee on 30 June

Motion agreed.

Crown Dependencies: Contributions

Lord Wolfson of Tredegar Excerpts

Thursday 1st July 2021 Lords Chamber

[Lord Wallace of Saltaire]

To ask Her Majesty’s Government when they next intend to review the adequacy of the contributions made by the Crown dependencies towards the cost of their access to the United Kingdom’s (1) public services, (2) provision of security, and (3) international representation.

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

My Lords, the Crown dependencies are responsible for their own domestic affairs, although islanders sometimes make use of UK public services such as health or education, for which payment is made according to bespoke arrangements. The UK is responsible for the Crown dependencies’ defence and international relations, in recognition of which they each make a voluntary contribution. The Government are content with the present arrangements.

[Lord Wallace of Saltaire (LD)]

My Lords, it is general government policy to recover costs through charges for services provided, particularly for those who do not pay taxes in the UK. It seems odd that the wealthy Crown dependencies are exempt from this, particularly given that Brexit imposes extra costs, as we have seen in fisheries protection and certainly representation overseas.

I was interested to hear that educational charges are going to be extended. Is the Minister aware that the one announcement made by the Department for Education since January has been the extension of home student fees to all students from the Crown dependencies?

I am amazed that, in his letter to me of 10 May, he repeated the absurd suggestion that Guernsey’s contribution to the defence of the UK is

“the cost of maintenance of the breakwater in Alderney.”

Has the Ministry of Defence not told the Ministry of Justice that the Alderney breakwater, which was built in the 1860s to provide an anchorage for the British fleet in the event of a French threat, ceased to be of interest to our defence before the Second World War?

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope I would never make an absurd point, either to the noble Lord or anybody else. I am certainly aware that there is no current or perceived future requirement to use the Alderney breakwater for operational military purposes, but it still needs to be maintained to preserve the facilities in Alderney’s only serviceable harbour. The Government previously retained responsibility for maintaining the breakwater because it was built by the UK for naval purposes and the Bailiwick of Guernsey could not be expected to subsidise the cost at the time.

When we requested that the Crown dependencies start making contributions towards the cost of defence in 1987, Guernsey assumed responsibility for maintaining the breakwater alongside remitting passport fees for British passports issued in the bailiwick. Irrespective of whether the breakwater serves any defensive purpose, by meeting the maintenance cost that would otherwise fall on the Government, Guernsey contributes to the cost of its defence and international relations.

[Lord McNicol of West Kilbride (Lab)]

My Lords, the UK is formally responsible for representing the Crown dependencies in the United Nations Framework Convention on Climate Change, including during the COP negotiations. Given that small islands are particularly vulnerable to the impacts of climate change, can the Minister confirm how Her Majesty’s Government are engaging with the Crown dependencies in the lead up to the COP 26 summit?

[Lord Wolfson of Tredegar (Con)]

The noble Lord raises an important point. My role in the Ministry of Justice is essentially to be the point Minister for the Crown dependencies regarding the Government. Just as I make sure that the Crown dependencies’ relations with, for example, the Department for International Trade, are secure when we talk about international treaties, I also make sure that discussions on environmental and climate issues are close between the Crown dependencies and the relevant government departments.

[Baroness Altmann (Con)]

My Lords, I recognise that this is a matter for the Crown rather than Parliament, but can my noble friend tell this House what the actual costs of defence and international representation for the Crown dependencies have been over the last few years?

[Lord Wolfson of Tredegar (Con)]

My Lords, the UK has a constitutional responsibility to represent the Crown dependencies internationally. We discharge that responsibility irrespective of cost. As I said, however, the Crown dependencies have been making voluntary contributions since 1987. As these are general contributions in recognition of our overall responsibilities and it is in our interest to represent the whole British family internationally, they are not intended to reflect the exact costs of defending the Crown dependencies or representing them internationally. We are satisfied with the current arrangements.

[Lord Collins of Highbury (Lab)]

My Lords, during the debate on sanctions regulations in February I asked how we would ensure that sanctions apply in full to the Crown dependencies and overseas territories. The Minister’s response was that the Government were

“lending technical support to the overseas territories”.—[Official Report, 8/2/21; col GC 22.]

What has the outcome of that “technical support” been? Is the Minister in a position to confirm the full application of sanctions within the Crown dependencies?

[Lord Wolfson of Tredegar (Con)]

My Lords, as sanctions are a tool of foreign policy, it is government policy for UK sanctions measures to be given effect in the Crown dependencies to make those sanctions as effective as possible. The Crown dependencies apply UK sanctions, including, for example, the Global Human Rights Sanctions Regulations 2020 and the Global Anti-Corruption Sanctions Regulations 2021. The FCDO and Her Majesty’s Treasury ensure robust implementation of sanctions. There is considerable sanctions-related engagement with the Crown dependencies, including meetings and webinars, to make sure that all the sanctions legislation is properly applied throughout the Crown dependencies.

[Lord Anderson of Swansea (Lab)]

My Lords, a voluntary contribution is unusual and presumably could be withdrawn unilaterally; it depends wholly on good will. Does the Minister agree that transparency is important to allay any UK taxpayer concerns that these overseas tax havens are being treated unfairly? How regularly is there an audit of that financial relationship? Presumably, that also contains any contingent liabilities.

[Lord Wolfson of Tredegar (Con)]

My Lords, I take issue with the reference to tax havens. That is a tendentious term and we can perhaps debate it on another occasion. The Crown dependencies have a long-standing relationship with the UK via the Crown; it is not a quid pro quo relationship—using “quid” in both the Latin and the colloquial sense. It is a relationship based on constitutional convention and respect for domestic autonomy. We reiterated in the recent integrated review of security, defence, development and foreign policy that we will continue to defend and represent internationally the three Crown dependencies.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, is it not clear from the answers we have just heard, that the Crown dependencies are getting an increasingly good deal, but it is a bit of a one-way street? Is it not time to discuss with them their constitutional relationship with the United Kingdom?

[Lord Wolfson of Tredegar (Con)]

My Lords, the Crown dependencies have a long-standing relationship with the UK via the Crown, and the Government currently have no intention of reviewing their constitutional position. They are self-governing jurisdictions with democratically elected Governments. They are responsible for fiscal matters and set their own policies to support their economies, but they do so within international standards. It is in that context that they determine their own tax rates. They co-operate with us on taxation, fighting financial crime and countering terrorist finance, and they are committed to meeting international standards on tax transparency, illicit finance and anti-money laundering.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, all supplementary questions have been asked, and we now move to the fourth Oral Question.

Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021

Lord Wolfson of Tredegar Excerpts

Wednesday 30th June 2021 Grand Committee

Moved by

[Lord Wolfson of Tredegar]

That the Grand Committee do consider the Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021.

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

My Lords, this is a technical instrument concerning EU jurisdictional rules. I make it clear at the outset that these regulations do not create new policy nor change the nature of the related offences; they are merely measures to fix failures of retained EU law arising from the withdrawal of the UK from the European Union. If time had allowed, the Government would have brought forward this regulation before the end of the transition period. However, as we are not aware that the rules in question have ever been relevant to a prosecution for the offences that this instrument relates to, we prioritised other, more urgent, legislation. Now that such other more important legislation is in force, it is necessary that we address any remaining deficiencies in retained EU law.

This instrument concerns an internal market measure contained in article 3 of the EU’s e-commerce directive. Although that directive is largely being retained in UK law, a key aspect of the directive is the country of origin principle, which establishes jurisdictional rules that operate across the EEA. Following the end of the transition period, these rules, which rely on reciprocal application between the EEA states, no longer operate as intended. The removal of the country of origin principle from legislation under the responsibility of my department is, therefore, the objective of this draft instrument.

The rules contained in the country of origin principle here apply to online activities which meet the definition of information society services, known as ISS, which can be understood as a service offered for payment, at a distance, by electronic means, and at the request of the recipient of that service. ISS could provide services such as online retailers, video sharing sites, search tools, social media platforms and internet service providers. Because of their reciprocal nature, these rules aimed to make it easier for organisations to operate online across borders. They did this by making ISS operating in more than one European Economic Area state subject only to the law of their home country unless certain conditions were met. This meant that, for relevant offences, ISS needed to comply with only one set of laws, those of the home state, rather than those of each state they operate in, thereby reducing the regulatory burden.

The implementation of these rules in connection with this statutory instrument has two strands. First, it creates a procedural bar, restricting prosecutions of ISS based in the EEA for their conduct in another EEA country; the procedural bar is based on the proposition that the ISS could have been prosecuted by the state in which they were established—that is, the home state. Secondly, it makes ISS based in one EEA state subject to the law of that state for their conduct across the EEA. This instrument fully removes the UK’s implementation of both aspects of the retained rules from legislation for which the Ministry of Justice has responsibility. As a consequence, UK ISS operating in the EEA will be subject to UK law only to the same extent as they would be when operating in other foreign countries. There will be no distinction between operating in an EEA state and operating in any other foreign state. It also means there will no longer be a procedural bar restricting prosecutions of EEA-based ISS operating in the UK, meaning that proceedings against an ISS based in an EEA state would operate in the same way as proceedings against an ISS based in any other foreign state or a domestic ISS.

The key points here are three, and those I made when I first rose—using that term somewhat loosely in this Room. First, we are unaware of any prosecutions of ISS for the offences this instrument amends, let alone any cases to which these jurisdictional rules have applied, so the direct impact of this instrument is low. Secondly, these exit-related deficiencies need to be resolved, because the rules were based on reciprocity which no longer exists and, if left unresolved they could, in future, place UK businesses at a disadvantage. Thirdly, the approach taken in this instrument is not only a suitable method of dealing with this issue but, I suggest, the only method of addressing these deficiencies. For those reasons, I urge the Committee to join me in supporting this instrument and beg to move.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, sometimes a debate is short but it sets up some interesting points, and this is one of them.

First, I thank my noble and learned friend Lord Mackay of Clashfern for his comments. He makes an important point that this instrument essentially means that an ISS will be treated the same way under our law, irrespective of where they are based, for their conduct here. Now that we have left the EU, maintaining different and indeed preferential treatment for EEA-based ISS would be inappropriate. That theme runs through a number of the points which we have debated this afternoon.

Given the time limits I have, I will not say anything more about the sifting committee recommending that we have an affirmative procedure this afternoon; we have set that position out in writing.

I can confirm that the noble Lord, Lord Thomas of Gresford, has not, as he put it, misunderstood the whole purpose of the SI. I take his point that an Explanatory Note might sometimes be more useful if it has worked examples. However, the problem with a worked example is that, if you do not cover every example, the danger is that the Explanatory Note could prove to be more misleading. The noble Lord highlighted that, since the end of the transition period, ISS have been liable to the laws of each country in which they operate. These changes mean that they will no longer also be liable in the UK, thus removing dual liability.

The noble Lord described a theoretical scenario, but I have to say that his concerns about bringing foreign offenders to justice in the context of cross-border offences was really the focus of his comment. This instrument specifically addresses reciprocal jurisdictional rules. On the wider point he makes, it is fair to say that those rules were never intended to contribute to the wider regulation of the publication of illicit materials internationally. They apply only to organisations meeting the definition of ISS, which is a limited definition, and only to activity in the EEA. The purpose was a much narrower one, simply to make it easier for such organisations to operate in multiple countries by simplifying the legal and regulatory framework which applied to them. Therefore, while in theory the co-operation agreement made it possible to prosecute UK-based ISS, and in some cases individuals, for conduct that occurs in EEA states, in practice, as I said in opening, we are not aware of any such prosecutions.

Generally, to meet the noble Lord’s point head on, the Government’s view is that criminal offending is best dealt with by the criminal justice system of the state where the offence took place. In any event, leaving in place rules that flow from EU reciprocal arrangements that no longer apply to the UK, and which are limited to UK ISS operating in EEA states, would not be an effective approach to address the concerns the noble Lord identified. Where we have extraterritorial jurisdiction, that is always on the basis that we look at all countries in the world on the same basis, and we do not distinguish between EEA states and other foreign states. Ultimately, therefore, this instrument means that we will treat EEA countries in the same way as any other foreign country. Now that we have left the EU, I suggest that that is entirely appropriate.

Towards the end of his comments, the noble Lord, Lord Thomas, said that he was

“sick to death of scams from abroad”.

For the briefest of moments, I thought the noble Lord had converted to the hardest of hard Brexiteers, but then he referred to west Africa and I realised he was making a different point. But that point underlines the philosophy that underpins this statutory instrument. Whether the scam comes—so to speak—from west Africa, from an ISS in the EEA or from anywhere else, we have left the EU and will therefore treat all foreign countries in the same way. That is generally consistent with the way we approach extraterritorial criminal jurisdiction in this country.

I turn last to the noble Lord, Lord Ponsonby of Shulbrede, who referred to the “current lopsided arrangements”. If I may say, with respect, that is absolutely right. That is why we need this statutory instrument, as we have a lopsided position without it now that we have left the EU. I am grateful that he did not ask me to repeat the answers given in another place yesterday, but I will turn to the particular question he asked me on how I see international legislative co-operation developing to combat international crime and exploitation.

The noble Lord raised the important issue of protecting the vulnerable from exploitation online, which is something that the Government fully agree and sympathise with. This is a challenging problem, not least because the underlying technology is constantly changing. It therefore needs to be tackled both by working with our international partners and through updating our domestic legislation. We have previously indicated that we intend to bring forward a draft Bill to address online harms and make the UK the safest place in the world to be online, setting the global standard for safety online, with the most comprehensive approach yet to online regulation.

I said a few words about this when I opened the relevant day of the debate on the humble Address to Her Majesty the Queen. The draft Bill will include placing a duty of care on companies to improve the safety of their users online. It will require major platforms to set out clearly, in their terms and conditions, what legal content is unacceptable on their platform and to enforce those conditions, consistently and transparently. It will require platforms to have effective and accessible user-reporting and redress mechanisms. I know that people often complain about that: when you see something online that you want to complain about or refer to the online platform, it is often very difficult to do so. It will designate Ofcom as the independent online safety regulator and give it the power to levy very large fines indeed. It will also boost public resilience to disinformation through media literacy and supporting research on misinformation and disinformation. The last is something that, in our modern society, is becoming increasingly important.

I hope the Committee will forgive me if I do not say too much more about that prospective legislation, because I would be straying a little too far from the direct subject of the SI. Coming back to that, it is of limited but focused application, as I have said, and I commend it to the Committee.

Motion agreed.

Marriage and Religious Weddings

Lord Wolfson of Tredegar Excerpts

Monday 28th June 2021 Lords Chamber

[Baroness Cox]

To ask Her Majesty's Government what progress they have made towards their commitment in the Integrated Communities Strategy Green Paper, published on 14 March 2018, to “explore the legal and practical challenges of limited reform relating to the law on marriage and religious weddings”.

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

My Lords, the law regulating legal marriage ceremonies developed over 150 years without systematic reform, so any changes present both legal and practical challenges. That is why the Law Commission is reviewing the law and will report later this year. A separate Nuffield Foundation study, also due to report this year, will investigate why marriage ceremonies occur outside the legal framework in England and Wales. The Government will consider both reports carefully.

[Baroness Cox (CB) [V]]

My Lords, I remain deeply concerned, because there has been no evidence of any meaningful progress since I first raised these issues over 10 years ago. As the Muslim Women’s Advisory Council told me recently, although the plight of many Muslim women in this country is well-known,

“their cry for help is ignored.”

The Government have continually failed

“to enshrine the rights of Muslim women who do not yet have the protection of legal marriage.”

Will the Minister at last give an assurance that legislation will be introduced, as a matter of great urgency, to ensure that religious marriages are also legally registered?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am aware of the noble Baroness’s work in this area and the Private Members’ Bills she has brought forward in the past. The offence set out in her Private Member’s Bill is one of the potential options on which we are working, but any change in practice must be based on the facts on the ground. We are doing work with the Nuffield Foundation, the Law Commission is looking at this area and we have met with Aina Khan from Register Our Marriage. While I cannot give an assurance on legislation, I can give an assurance that this has a high priority and we are looking at it with real care.

[The Lord Bishop of Gloucester]

My Lords, during the passage of the Domestic Abuse Bill, now an Act, your Lordships discussed how best to protect migrant victims of abuse. Will the Minister assure me that any reforms, such as those being discussed here today, will safeguard migrant women and children, who are often particularly vulnerable?

[Lord Wolfson of Tredegar (Con)]

My Lords, the right reverend Prelate is right that the position of migrant women and their children, in particular, is of real concern. As we saw in the domestic abuse debates, those groups can be subject to particular intimidation and abuse. We will, therefore, consider their position in any legislation.

[Viscount Bridgeman (Con) [V]]

My Lords, a Channel 4 survey found that six in 10 Muslim women, who had had traditional Islamic weddings in Britain, are not legally married—a point made by the noble Baroness, Lady Cox. Of these, over a quarter— 28%—are not aware that they do not have the same rights they would with a legally recognised marriage. Does the Minister not agree that this is an issue of equal rights for women? May I press him on how the Government will safeguard the rights of Muslim women and ensure that the rule of law is upheld?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend is right: if you are not legally married, under the law of England and Wales, you have a significantly disadvantageous position on divorce and on death. The position is simple: there is only one law in this country, the law of England and Wales. That proposition can be traced back to Jeremiah’s letter to the Babylonian exiles. There is no separate system of law in this country.

[Baroness Butler-Sloss (CB) [V]]

My Lords, I declare an interest as the chairman of the National Commission on Forced Marriage. I ask the Minister to bear in mind that any relaxing of the requirements of marriage might have the unintended consequence of not identifying a potential forced marriage.

[Lord Wolfson of Tredegar (Con)]

My Lords, I respectfully agree with the noble and learned Baroness that, in seeking to update marriage law, we must ensure that we do not weaken forced marriage safeguards. Indeed, we criminalised that in 2014. I know that the Law Commission is looking at these issues most carefully.

Can I just clarify my previous answer, before the Advocate-General for Scotland has a go at me? When I said “this country”, I was referring to the law of England and Wales; the law of Scotland is a separate matter.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, the 2015 review by the noble Baroness, Lady Casey, said that, as of 2015, there were up to 100,000 sharia marriages in the UK,

“many of which are not recognised under UK laws and leave women without full legal rights upon divorce.”

Her review warned that this was worrying in a group with lower levels of female employment and English language. Crucially, the noble Baroness said:

“The potential for women … to find themselves in what they believe to be a binding commitment, be economically and socially dependent on their spouse, and yet have no legal marriage status, is worryingly high.”


The Minister said that this issue is a very high priority. That report was six years ago. When did it become a high priority and what have the Government done in those six years?

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble and learned Lord knows that it is a high priority, because this is one of the issues that both the Law Commission and the Nuffield Foundation are looking at. We have also looked at the sharia review. As I have said, our position is that we want to make sure that people are properly protected, though I would suggest that it is as much a matter of education as it is of legislation.

[Baroness Eaton (Con) [V]]

My Lords, numerous independent reports, including those commissioned by the Government, have confirmed that some sharia councils embed discrimination against women, including against those women who use sharia council services on matters of marriage and divorce. Given that countless women are suffering as a result, may I press my noble friend the Minister for an assurance that we will see government legislation sooner rather than later?

[Lord Wolfson of Tredegar (Con)]

My Lords, people may choose to abide by the interpretation and application of sharia principles if they wish to do so—that is a matter of religious freedom—provided that their actions do not conflict with the national law. But, importantly, all individuals retain the right to seek a remedy through the English courts in the event of a dispute. For these purposes, the law of England and Wales in relation to the inheritance of property will prevail. We are looking at legislation, and I will of course update the House and my noble friend as and when we reach a decision.

[Lord Singh of Wimbledon (CB)]

My Lords, does the Minister agree with the words of a Christian hymn that

“New occasions teach new duties; Time makes ancient good uncouth”,


and that religion and religious teachings should be interpreted in the context of today’s times and the recognition of full gender equality? Does he agree that the Government’s continuing reluctance to stand up for the rights of Muslim women and girls is not only a betrayal of government responsibility but an insult to the fair name of Islam?

[Lord Wolfson of Tredegar (Con)]

My Lords, I think the theological point put to me will take an answer that is probably longer than the allotted time, but I am happy to consider it further. However, I reject the proposition that we are not concerned about the rights of Muslim women and girls. The history of the work in this area, whether on forced marriage or indeed the matters we are discussing this afternoon, would indicate the opposite.

[Lord Cormack (Con)]

My Lords, I do not think anybody could dispute my noble friend’s personal commitment, but this is taking a very long time. Can he tell the House what line the Government will take on the Private Member’s Bill from the other place which suggests that the minimum age for marriage should be 18?

[Lord Wolfson of Tredegar (Con)]

My Lords, I think my noble friend will have seen my letter to various groups on that point. Marriage at 16 and 17 has the significant risk of people being forced into marriages and their life chances reducing. Therefore, my noble friend can take it from me that we will be looking very carefully at the Bill introduced by the Member for Bromsgrove, who now appears to be otherwise occupied.

[Baroness Deech (CB) [V]]

My Lords, I am sure the Minister believes that there should be equality among religions in relation to divorce, and that the law should bring justice to women who are mistreated by religious husbands and religious courts. So will he ensure changes to the Matrimonial Causes Act 1973, so that the court can refuse to finalise a civil divorce until an Islamic religious divorce has been obtained, if unfair pressure is being used in the religious proceedings? This would bring Islamic divorce in line with the Jewish get.

[Lord Wolfson of Tredegar (Con)]

My Lords, the premise behind the question of the noble Baroness is that the bars to effective relief are the same in Judaism and Islam, but that is not in fact the case. As I understand it, it is significantly easier for a woman to obtain a divorce in Islam than it is for a woman to facilitate or obtain a divorce in Orthodox Judaism. Therefore, the Act that the noble Baroness refers to—I believe it is Section 10A—would not have the same advantageous effect in Islamic marriages as it does in Orthodox Jewish marriages.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the time allowed for this Question has elapsed.