Illegal Migration Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, the refugee crisis in a global one and any sustainable solution needs to be international. If we do not comply with our international obligations, as set out by the noble Baroness, Lady Chakrabarti, we are unlikely to achieve the international co-operation necessary to deal with the crisis. I am afraid I do not agree with the argument put forward by the noble Lord, Lord Lilley, that because other countries do not abide by their obligations, we should not abide by ours either.

The noble Lord, Lord Green of Deddington, talked about the cost. The Government’s own impact assessment says that implementing the measures in the Bill will cost the country more than the status quo. In response to the noble Lord, Lord Horam, the impact assessment says there is an “academic consensus” that there is no evidence that the measures in the Bill will have a deterrent effect. Opinion polls may say that illegal migrants should not be allowed to settle in the UK but we are talking about genuine refugees; we are not talking about illegal migrants.

We support all the amendments in this group and Amendment 5 in particular, which we will support if the noble Baroness, Lady Chakrabarti, chooses to divide the House.

[Lord Wolfson of Tredegar (Con)]

My Lords, I have the misfortune to differ from the noble and learned Lord, Lord Etherton. I know that he will not think that this is any personal discourtesy. Let me take a few minutes to explain to the House why I respectfully disagree.

Illegal Migration Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

In which case, I will give one final statement before I finish. On this we all agree—the answer to this issue, I suggest, lies ultimately in Reykjavik. The answer lies in the engagement between this Government and other Governments with the Strasbourg court to improve the jurisprudence, to set the jurisdiction on a proper footing and to improve the procedures. In that way, for those of us—and I include myself—who want this country to remain part of the convention and play a part in its jurisprudence, that is surely the way forward.

[Lord Paddick (LD)]

If I understand the noble Lord, Lord Wolfson, correctly, he is saying that the solution is not Clause 53 but to engage with the court to ensure that proper processes are followed when it comes to Rule 39 rulings.

[Lord Wolfson of Tredegar (Con)]

My point is that I am supporting Clause 53. It is not inconsistent to say that we will have Clause 53 and will engage with the court.

Public Order Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I may be labouring under a misapprehension, but surely there is a critical difference between this country and China. As I understand it, the proposed new clause would prevent a constable exercising a police power for the principal purpose of preventing someone observing or reporting on a protest. If we do not pass this amendment, that act—that is, arresting somebody for the principal purpose of preventing reporting on a protest—would still be unlawful: it would be an abuse of police powers to do that. The difference is that here we are being asked to pass legislation to make illegal that which is already unlawful. That is the concern I have with it. When I was a Minister, I was frequently told, “You should add this clause and that clause to send a signal”, and I kept saying, “The statute book is not a form of semaphore.” My problem with this clause is nothing to do with the content of it; I just have a problem with passing legislation to make unlawful that which is already unlawful.

[Lord Paddick (LD)]

My Lords, there cannot be any legitimate objection to journalists, legal observers, academics or even members of the public who want to observe and report on protests or on the police’s use of their powers related to protests. We have seen in incident after incident how video footage of police action, whether from officers’ own body-worn video or that taken by concerned members of the public, has provided important evidence in holding both protesters and police officers to account for their actions. The need for this amendment is amply evidenced by the arrest and detention of the accredited and documented broadcast journalist, Charlotte Lynch, while reporting on a Just Stop Oil protest. It is all very well for noble Lords to say, “Well, if somebody was arrested in the way that Charlotte Lynch was arrested, it was unlawful”, but the fact is that Charlotte Lynch was taken out of the game for five hours and detained in a police cell, where she could not observe what was going on. We need upfront protection for journalists and observers, and not to rely on a defence that they can put after they have been handcuffed, arrested, and put in a police cell even though they are in possession of a police-accredited press pass. We support this amendment and will vote for it if the noble Baroness divides the House.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

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

My Lords, I thank all noble Lords for their contributions to this debate. I have listened to all of them with care. With respect to everyone else, I say that I always listen with care to the noble Lord, Lord Cashman, in particular, as I think he will appreciate from our exchanges on other matters. I got the impression that voices in support of the Government were a little thin on the ground on this matter, but I can assure the noble Lord, Lord Paddick, that my noble friend Lady Williams of Trafford is not doing these amendments not out of any personal reluctance; it was decided some weeks ago that my assistance on the Bill would include this group, and that is why I am doing it. It is fair to say that she has gone above and beyond on the Bill and others.

[Lord Paddick (LD)]

My Lords, just on that point, I was clearly not suggesting that the noble Baroness, Lady Williams of Trafford, did not deserve a break from her duties; she has been committed to this throughout. I said that I hoped that these parts of the Bill might be the reason, but I was obviously implying that they clearly were not.

[Lord Wolfson of Tredegar (Con)]

I think it might be best if we just moved on from that because, respectfully, I am not sure that it was a particularly good comment in the first place.

The measures in the Bill build on the landmark—it really was landmark—legislation brought in by the future Prime Minister, Theresa May, in 2015. On this occasion, I am very happy to acknowledge that it was brought in by the coalition Government; it was a joint effort. Notwithstanding that I am not a Home Office Minister, as the noble and learned Baroness, Lady Butler-Sloss, reminded me on a number of occasions, I can say that the Home Secretary is committed to bringing forward further legislation in the area of modern slavery as a priority, to ensure an efficient and resilient system in tackling modern slavery. That department, which is obviously not mine, will look to introduce those measures when parliamentary time allows.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not denying any stories. I set out statistics earlier on which were absolutely from the real world, and that is the issue that we are dealing with.

[Lord Paddick (LD)]

My Lords, I apologise for interrupting, but the Minister has cited the statistics that he quoted earlier in answer to the question of why the Government were doing this. He talked about the number of referrals going from 3% to 16%. There could be three explanations for that increase: a rise in modern slavery; more cases being reported, even if modern slavery is not going up; or an increase in misuse. Bearing in mind that the majority of referrals to the national referral mechanism are made by the Home Office, and bearing in mind what he said about very few of the people who are referred being returned— I did not quite get the percentage—it sounds like the majority of those cases are not misuse. What we need are not the statistics that the Minister is relying on but the statistics on how many cases of misuse there are.

[Lord Wolfson of Tredegar (Con)]

My Lords, I have already said that I will write. I will copy everybody in, particularly the noble Lord, Lord Paddick, with the relevant data. We can have an interesting discussion about potential explanations for it, but what it shows is that there is a significant increase. The question I was seeking to meet was: why do something now, why not wait until a future Bill? The short answer is that we have a manifesto commitment to deal with immigration and asylum issues. It is right that we address all issues at this stage, but, as I have underlined, this is not the Government’s last word on modern slavery. Now I really want to make some progress or we will be here until 3 am again.

[Lord Paddick (LD)]

Does the noble Lord not accept that 24% of modern slavery cases are UK nationals and have nothing to do with what the Conservative Party put in its manifesto?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

At this point, all I can do is pass that on, and I will.

[Lord Paddick (LD)]

On Amendment 172A, I think the Minister said that victims of modern slavery already have access to legal advice, once the national referral mechanism has made an initial decision. If he looks at that amendment carefully, he will see it is entitled “pre-national referral mechanism advice”.

[Lord Wolfson of Tredegar (Con)]

The noble Lord is absolutely right, which is why I was making the point about it being a fundamental extension of the legal aid system, which is uncosted.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not trying to be difficult here. What it means is that a woman, like anybody else, who has a proper claim under the refugee convention will find refuge in the UK. That is what we are seeking to do. By having a clearer set of definitions, we are trying to make sure that it will not depend on the happenstance of who the decision-maker is and the way the test is applied.

[Lord Paddick (LD)]

I do not wish to prolong the Minister’s agony but can he clarify something for me? I think he said that, in the face of court judgments, the Government were entitled to change the legislative background. Does changing the legislative background mean that the Government are raising the standard of proof, thereby making it more difficult for claims for asylum to be accepted—this is in Clause 31—and in so doing, overturning the judgments of the UK’s highest courts? That is the first question.

The second question relates to Clause 37. The Minister says that “particularly serious crime” is not defined in the refugee convention and that it is up to each country to define what it means. My understanding is that the definition is being changed from two years’ imprisonment to 12 months. So, particularly serious crime was defined by this country as entailing two years’ imprisonment and now the Government are changing it to 12 months. That is not about seeking to define or a lack of clarity but a deliberate change. Why is that?

--- Later in debate ---

[Lord Paddick (LD)]

If every country interpreted Article 31 as the Government want it interpreted by means of the Bill, what would be the consequences for dealing with the refugee crisis that the world faces?

[Lord Wolfson of Tredegar (Con)]

I really do not mean to be flippant. The consequence would be that every country would be interpreting the refugee convention in accordance with its terms. As a country, we are interpreting our legal obligations in the way that we ought to and are allowed to. We are going back—

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am almost as new, I think, as the noble and right reverend Lord, but my understanding of procedure is that that is meant to be for questions. If the noble and right reverend Lord will write to me or meet me to discuss that particular case, I will certainly discuss it with him. If the case raises a point of principle, I will deal with it. If it raises a point of principle that I think will be helpful for the Committee to hear, I will write to him and provide a copy of the letter. I hope that is helpful for this evening.

[Lord Paddick (LD)]

My Lords, may I just say that this is Committee? This is not Report. Any noble Lord is entitled to speak after the Minister in Committee.

[Lord Wolfson of Tredegar (Con)]

My Lords, I really do not want to get into a procedural battle. I was trying to be both helpful to the Committee, given the time and pressure, and respectful, I hope, to the noble and right reverend Lord. I reiterate the offer, which I think is appropriate.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, on that very important point, perhaps the Minister will take back to the Home Office that this Committee would very much like the guidance to be published in draft form in good time so that Members of the House and others can look at it.

[Lord Paddick (LD)]

I am sorry for interrupting, but I am becoming a little confused again, I am afraid, probably because we have been at this for a very long time and it is very late and so forth. Is the Minister saying that the deadline that is set for the submission of evidence will be set on a case-by-case basis, for example, if the applicant is particularly vulnerable? If vulnerabilities come to notice that were not initially brought to the notice of the decision-maker, will the deadline then be adjusted and perhaps extended as a consequence of that? Although there might be general guidance about what the deadline might be in every case, is it movable and adjustable in every case and might it be adjusted further as the case progresses? In which case, why on earth is this part of the Bill?

[Lord Wolfson of Tredegar (Con)]

Let me come to that point in a second. First, let me say that I almost took it as implicit in the request from the noble and learned Lord, Lord Etherton, that the Committee would like to have the guidance, but I have heard the point made, and I will certainly pass it on. I do not want to go over points I have already made, and I think when the noble Lord looks in Hansard, he will see that I have set out quite clearly why, first, we need to have a system whereby, in particular cases, the date can be extended or adjusted, but also, secondly, why that does not undercut the principle of actually having a date and having this structure. However, I am very happy to look again at what the noble Lord has just said. If, having read it, it seems to me that I can add to what I have already said, I will; otherwise, I respectfully direct him to what I said earlier.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, the Minister seemed to suggest that, in any form of restorative justice, a victim might be compelled or forced to engage in the process. I think that is what he said. Can he reassure me that it was not?

[Lord Wolfson of Tredegar (Con)]

I was saying absolutely the opposite and, if it came out wrong, it came out wrong. The whole point of restorative justice is that the offender and the victim have to consent. That is the point which I was making about crimes of sexual violence. The victim there should not feel under any compulsion or pressure to engage in restorative justice if they do not want to. Victim choice and free-will participation is at the heart of restorative justice. I hope that I have made that very clear.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

As I say, we discussed this with a wide range of people, and it seemed to us from looking at all the material that sport and religion are the particular areas where law at the moment should intervene. I was coming to this point. The noble Lord presented the amendment saying, “Abuse can take place in other relationships too”, and of course he is absolutely right. However, abuse can take place where there is no relationship at all, and I am afraid it can take place in lots of different relationships. The question here is when the law should intervene to prohibit automatically, regardless of the particular 17 or 19 year-old and whether any abuse is taking place, to prevent any sexual contact. For those reasons, we consider that at the moment, we should intervene—I will come to the delegated power—in sport and religion only. Those settings involve high levels of trust, influence, community recognition, power and authority, and these figures are often well-established, trusted and respected in the community.

The report of the Independent Inquiry into Child Sexual Abuse found that religious organisations

“may have a significant or even dominant influence on the lives of millions of children”

and that

“what marks religious organisations out from other institutions is the explicit purpose they have in teaching right from wrong.”

Also, both sport and religion can provide a young person with a strong sense of belonging, whether in a team, a squad, a community or a faith. Such deep feelings held by the young can provide unique opportunities for predators to exploit or manipulate and can make it more difficult for the young person or concerned relatives to report abuse.

With respect to sport specifically, the physical nature of the activities means that coaches often ostensibly have legitimate reason physically to touch the children and young persons they are coaching. A sports coach will often have opportunities for closer and more prolonged physical contact compared with other roles, and this can be manipulated by abusers. That is why, to respond to the point made by the noble Lord, Lord Pannick, the 18 and a half year-old tennis coach would be prohibited from having a relationship with a 17 and a half year-old tennis student, but the 18 and a half year-old chess coach could have such a relationship —assuming for these purposes that chess is not a sport; I do not need to decide that because it is a physical definition that is in the Act—because there is not that scope, ostensibly, for a physical relationship.

The noble Lord’s amendment addresses dance specifically. Again, let me reassure him that the definition of “sport” in Clause 46 includes types of physical recreation engaged in

“for purposes of competition or display”.

We consider that this includes dance.

On the delegated power for the Secretary of State to amend new Section 22A, we accept that new evidence may emerge that may justify legislating further. Let me reassure the House and put it on record that this power will not be used lightly, but nor will we wait until instances of abuse are brought to our attention. We will proactively monitor data on child sexual abuse to ensure that we have the evidence needed to inform policy and act decisively where required, including evidence relating to the nature of roles and the institutional or organisational context, the level of power and control, other factors which we have seen contribute to abuse including opportunities for extensive unsupervised contact, and any inherent risks posed to young people as well as any data on incidents of concern. We are establishing channels through which partners such as the police, the CPS and local authorities can share emerging evidence and highlight patterns of behaviour.

Some of the behaviour that has been mentioned this evening and in Committee is already covered under other offences within the Sexual Offences Act 2003. Let us be clear: sexual activity with someone under the age of 16 is a crime. Non-consensual sexual activity such as rape is obviously a crime. I certainly heard the word “rape” in at least one example mentioned by the noble Lord, Lord Paddick. We are not talking about that—that is the point—because rape is already a crime. We are talking about sexual activity which would otherwise be lawful and consensual. I did not quite catch all the examples, but one cited was from a newspaper in Scotland where somebody had done something. How old was the person? If they were under 16, it is already caught. Was there consent? If there was not, it is already caught. One has to be careful when one is talking about evidence. We will be proactive in looking for that evidence and, for the avoidance of any doubt, we will of course re-read the examples that he gave us.

I accept that Clause 46 does not represent everybody’s preferred approach, but we believe that, on the material that we have at the moment, our approach strikes the appropriate balance between the protection of young people and the sexual freedoms and rights otherwise granted to 16 and 17 year-olds, while still allowing for rapid responses to emerging patterns of abuse in the future. For those reasons, I respectfully invite the noble Lord to withdraw the amendment.

[Lord Paddick (LD)]

Before the Minister sits down, can he clarify two points? First, is he saying that those people who teach drama, music and dance should be allowed to exploit their positions up until the point that they rape or indecently assault somebody, or does he agree with my noble friend that action should be taken to prevent that in the first place? Secondly, what is to stop a teacher of a young person who wants to engage in sexual activity with them distancing themselves from their teaching role to enable that to take place? How on earth does this amendment change the age of consent?

[Lord Wolfson of Tredegar (Con)]

I am struggling with that second point, but let me try to answer the first. On whether I am saying that anybody should be allowed to exploit a young person, the answer is no. Frankly, I do not understand how the noble Lord has reached that conclusion. There is nothing in the provisions about justifying exploitation or abuse up to the point of rape and assault. Maybe this is the confusion that he is under in relation to the second question. At the moment, if someone is caught in a position of trust—let us say, for example, a minister of religion who is 18 and a half—that person is prevented from having any sexual contact with, say, a 17 and a half year-old congregant. Before that person was ordained or appointed to the position as a minister of religion, that person could have had a sexual relationship with a 17 and a half year-old. That is why I am talking about changing the age of consent, because that 17 and a half year-old is able to sleep with an 18 and a half year-old but not if that 18 and a half year-old is, for example, her minister of religion. I hope that answers the noble Lord’s second question, although I confess I did not quite understand it because, if I may say so, it seemed to proceed from a fundamental misapprehension of what we are talking about.

Delivering Justice for Victims

Debate between Lord Wolfson of Tredegar and Lord Paddick

Thursday 16th December 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, as a victim of the Police, Crime, Sentencing and Courts Bill, I have to say that dealing with this Statement at this time on this day is not delivering justice to victims.

Seriously, though, I should declare an interest as a victim of two crimes in recent years. One was a homophobic hate crime that my Norwegian husband was a witness to. He said to me afterwards that he would never again be involved in the British criminal justice system as a result of his experience in court, where he felt that he was on trial. The other was a burglary where the perpetrator was caught on closed-circuit television but the police refused to investigate further. In a subsequent meeting with a police super- intendent, he admitted that many cases that were solvable were not being pursued because of a lack of police resources. Is it any wonder, as the noble Lord, Lord Ponsonby of Shulbrede, said, that three in five victims do not report crimes, and that one-third would not report them again having experienced the criminal justice system? It seems that my husband and I are not alone.

The Government say that they have strengthened the victims’ code. What improvements have there been as a result? More money has been invested, according to the Statement, but what impact has this had on victim satisfaction? We should be looking for outcomes, not outputs.

The Statement says that it wants victims to

“properly engage at every step.”

Research shows that restorative justice significantly increases victim engagement and satisfaction. What plans do the Government have to fund more restorative justice programmes?

The Statement says that the victim will be consulted before charging decisions are made

“in certain types of case”.

Can the Minister explain what types of case are being referred to?

The Statement says that the Government

“will increase transparency in respect of the performance of our criminal justice agencies.”

What will the Government do when they discover that the reason for poor performance throughout the whole criminal justice system—from the police to the CPS, legal aid and the courts—is that it is underfunded? It is all very well to

“enshrine the victims’ code in law”,—[Official Report, Commons, 9/12/21; cols. 595-6.]

but if the criminal justice system does not have the resources to fulfil its obligations under the victims’ code, how will making it a statutory responsibility help?

The Statement says that the Government will publish a report on progress against the rape review action plan. Research clearly shows that victim satisfaction is the most important outcome measure in rape cases; being believed and cared for are the most important elements of rape survivor satisfaction. Does the report detail changes in victim satisfaction? If not, why not?

The Government are long on words and short on delivery. Trust and confidence in the criminal justice system have declined in the decade or more that the Conservatives have been in power. I can understand that the Government welcome the fact that the police cannot investigate some crimes, despite overwhelming evidence, when it is the Government who stand accused, but for the rest of us, if we cannot trust the police, the CPS and the courts to protect us when we are victims of crime, we are in serious trouble. You cannot get a quart out of a pint pot, which is what the Government appear to be trying to do with these measures.

Finally, I am reminded of colleagues who, when the Government do something we agree with, then go on to question the Government’s motives. I do not know whether the Minister celebrates Christmas, but I hope he enjoys the break, whatever the motivation for having one.

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

To pick up on that last point first, I take this opportunity to wish everybody—both those who celebrate Christmas and those who do not—a very happy time and a very successful 2022. I think we are all entitled to celebrate the fact that we have achieved at least three days on the police Bill on Report, and we have more to look forward to next year.

I come back to the matter of victims. Despite the fact that it is the last piece of business for this year, it is a very important topic. I am grateful that the noble Lord, Lord Ponsonby of Shulbrede, broadly welcomed the legislation. I think it is fair to say that this is a matter where there is broad agreement across the House on the aims—although, of course, there will be political differences, perhaps as to the way we go about it. We will have an eight-week consultation on the matter, and we will prioritise work on that and introduce the Bill, as the Deputy Prime Minister said in the other place, as soon as possible. We want to ensure that there is wide engagement both across this House and in the other place as we develop the Bill next year.

So far as victim attrition is concerned—I must say, I do not like using that phrase, although it is the phrase that is used; we all use it but there is a real person, so to speak, behind all these statistics—the quicker we get cases to court, the less attrition there will be. That must be balanced with making sure that cases are investigated properly and that the defendant has a fair trial. In the area of rape, for example, we have introduced measures to speed up the extraction of data from mobile phones and make sure that the phone gets back to the victim. In particular, we have found that support from ISVAs—independent sexual violence advisers, whom we also have in domestic violence cases—really makes a difference. We are providing more than £150 million in this financial year for victim and witness support services, which we will increase to £185 million by 2024-25. The figures show that there is a significant benefit in reducing victim attrition for those victims who have contact with ISVAs.

The backlog in criminal trials is obviously a matter that we have debated on a number of occasions. It is fair to say that the pandemic has had a real impact in this jurisdiction. Although we were one of the first jurisdictions to restore jury trials, there were times when we could not hold them, and then we could not hold jury trials with multiple defendants because of space issues. In the Judicial Review and Courts Bill, which the House will consider next year, Clause 11, I think, provides that more work will be put into magistrates’ courts so that Crown Courts are freed up for more jury trials. However, we want to be transparent about this. As the Deputy Prime Minister has explained, we are publishing our rape scorecards, which will provide a tracking basis so that we can see how the system is doing, particularly in rape cases. I know that that is a particular focus of the Deputy Prime Minister.

I agree with the noble Lord, Lord Ponsonby, that the victim must be at the heart of the criminal justice system. Too often, there has been seen to be a dissonance, or an inconsistency, with putting the victim at the heart of the system while ensuring that the defendant has a fair trial. In fact, there is no contradiction. You can do both; indeed, we must do both. That is something we are very focused on.

Turning to some of the points made by the noble Lord, Lord Paddick—as he said, he has personal experience in this area, if I can put it that way—giving evidence is always traumatic. We recognise that it is particularly traumatic in cases that deal with sexual or other violence or coercive control. As the noble Lord will know, we have introduced Section 28 and are rolling it out so that it is more widely available. At the end of the day, judges, not Ministers, run trials so it is a matter for judges to decide whether and how Section 28 is deployed in a particular case, but our aim is to make it available across the criminal justice system for those cases where it is suitable.

I agree with the noble Lord that we must focus on outcomes. I have already mentioned rape scorecards. He also mentioned restorative justice. I am pleased that he did because, as I am sure he knows, there is very good evidence to show that there can be benefits for victims and a reduction in reoffending where restorative justice is used properly. It really is a win-win. The victim wins, society wins and, of course, the offender wins because they do not reoffend. The code makes it clear that victims can ask to take part in restorative justice at a time that is right for them. Both the victim and the offender have to agree, of course. The welfare of the victim is paramount so there will be cases where it is unsuitable, but there are lots of cases where it is very suitable. We are providing grant funding to police and crime commissioners to provide victim support services; that includes restorative justice. In the last financial year, 2020-21, they spent around £3.7 million of the funding on restorative justice services; around 5,500 victims engaged with those services in that year. We will bolster support by increasing funding for support services, as I said earlier.

The noble Lord asked in what types of cases it would be appropriate to consult a victim. That is one of the things we are going to consult on because, as he will recognise, it will not be all cases, but there will be many where it will be appropriate. Finally, on resources put into the criminal justice system, I do not want to have a statistics battle across the Dispatch Box, especially since this is the last business of the year. However, I will say that we are putting in £477 million as part of the spending review into the criminal justice system over the next three years, to help reduce the backlog and to provide swifter access to justice, which victims deserve. I think it is generally recognised that the most recent spending review has significantly increased the budget of the Ministry of Justice, and that this will be to the benefit of the criminal justice system.

I also say, finally, that we have published the CLAR report on criminal legal aid, authored by Sir Christopher Bellamy. We are very much looking forward to engaging with the profession, and indeed all stakeholders, about criminal legal aid, which is itself such an important part of the criminal justice system.

Prisons Strategy

Debate between Lord Wolfson of Tredegar and Lord Paddick

Thursday 16th December 2021 Lords Chamber

[Lord Paddick (LD)]

Forgive me, my Lords, but I understood that it was five minutes for each Front Bench and then 10 minutes for the Minister to respond to our questions. Hopefully, with the leave of the House, we will give the Minister appropriate time to respond despite the Labour Front Bench.

Like the noble Lord, Lord Ponsonby of Shulbrede, we believe that the White Paper is disappointing. The Statement gets off on the wrong foot as far as we on these Benches are concerned. It says:

“Prisons play a vital role in protecting the public by keeping the most prolific and dangerous offenders in custody”—


although, as we see from the Police, Crime, Sentencing and Courts Bill, even peaceful protesters are going to be subject to custodial sentences—

“and rehabilitating those who deserve a second chance.”

Can the Minister explain which prisoners do not deserve a second chance? On what criteria are the Government going to decide who does and does not deserve one?

The Statement says that the Ministry of Justice has secured enough money in the spending review to build an additional 20,000 prison places by the 2020s. The Nationality and Borders Bill intends to criminalise asylum seekers entering the country through irregular routes, with a maximum penalty of four years’ imprisonment —again, not

“the most prolific and dangerous offenders”,

but on current numbers every one of those 20,000 new prison places is likely to be filled by asylum seekers.

When I was a police commander in charge of Brixton, the governor of Brixton Prison told me that illegal drugs were more freely available inside his prison than they were outside on the streets. I am pleased to see that action is being taken to deal with that, but why has it taken over 10 years for this Government to act?

It is also welcome that the Government are going to treat illegal drugs as a health issue, but the probation service has very little financial leverage to secure support to ensure that drug treatment programmes started in prison continue through the gate when a prisoner is released. It is one thing to live without drugs when you are in prison with regular drug testing, but quite another to release prisoners back into the same environment that they came from on release and expect them to continue. What additional resources are being provided for drug rehabilitation and support outside prison specifically for ex-prisoners? Can the Minister specify how much per prisoner compared with 10 years ago, adjusting for inflation and taking into account the increase in prisoner numbers? I am reminded of shops that double the price of things for 12 weeks and then advertise them at 50% off, except that the Government make drastic cuts, put half back and then claim credit for what is in fact a reduction.

There is an increasing prison population compared with proportionately declining staff numbers. Where is the budget to recruit and retain prison officers and the other staff who will be needed to carry out the numeracy and literacy assessments and to deliver the training? I understand that the increase in prison officers outlined in the Statement is to cope with the expansion plans, but who will deliver these enhanced education and skills plans and who will backfill when staff are being “upskilled”?

What pay rises are factored in for prison officers to ensure retention, set against a record increase in inflation not seen for a decade and an increasingly difficult working environment? Wandsworth Prison today has 68 prison officers looking after 1,300 prisoners. Officers are leaving because of poor pay, and applications from new recruits are down 44% because the Prison Service cannot compete with other sectors. How can rehabilitation be delivered in Wandsworth Prison today in such circumstances?

Any measures to find ex-prisoners employment are to be welcomed, but is the limiting factor not that employers will not take them on? A

“new digital tool to match candidates to jobs”

will not help if there are no jobs to match the ever-increasing number of prisoners to. What incentive or encouragement is being provided to employers to employ former prisoners—or at least those prisoners that the Government deem lucky enough to be given a second chance?

Can the Minister explain the “new community accommodation service”? What additional funding or other incentive will local authorities and housing associations be given to provide accommodation and to what extent does this compensate for the devastating cuts to local authority budgets in recent years?

This White Paper appears to shift the balance further towards retribution and away from rehabilitation, with the only realistic, properly thought-through and funded proposals being to build and staff yet more prison places —plans one would expect from a right-wing, authoritarian Government.

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

My Lords, I am grateful for the contributions. I will respond to as many of the points as I can in the time I have and will reply in writing on anything I cannot deal with orally.

The noble Lord, Lord Ponsonby, started off by criticising the fact that we are asking questions, but that is a poor place to start. I do not apologise for asking questions and seeking consultation. We published a prison safety and reform White Paper in 2016 and this White Paper builds on that. We are keen to learn. There are new things and new money in this White Paper, which I will come to, and we make no apologies for asking people for their views.

On staffing, which I agree is of absolute importance, since the end of October 2016, we have recruited a net increase of over 4,000 staff. In 2020, we accepted all bar one of the review body’s recommendations on pay and, as we announced in October this year, we accepted all of the PSPRB’s recommendations relating to the 2021 pay award. To retain staff in the sites hardest to recruit for, prison officers in the 31 hardest to recruit for sites receive an additional payment of between £3,000 and £5,000.

I think everybody around the Chamber understands the importance of education in prison. I acknowledge, as the noble Lord, Lord Ponsonby, did, the work done by the former Lord Chancellor, Robert Buckland, in this area. Throughout the pandemic, we have kept education running. The Prisoners’ Education Trust called for major investment in digital technologies in prison. We are developing the digital infrastructure and have reintroduced classroom teaching in prisons in line with government advice on Covid. We absolutely acknowledge that improvements have to be made in prisoner education. The pandemic has obviously not helped in that regard, but we are focused on this and have put new money into it as well.

On employment, which is absolutely key, there are over 1 million vacancies in the UK at the moment. Employers must look to wider talent pools to fill them and the New Futures Network, which is the Prison Service’s network of employment brokers, now works with over 400 organisations to place prisoners in employment. The Government lead by example: we will hire over 1,000 prison leavers into the Civil Service by the end of 2023 and, as the noble Lord will be aware, in the PCSC Bill, we are focusing on the rehabilitation regime, which is also important for people to obtain employment.

On the specific question about virtual visits, I can confirm that we are committed to continuing to offer secure social video calling beyond the Covid restrictions. We are looking at future options in line with the recommendations of my noble friend Lord Farmer’s review on maintaining family ties, but the current position is that there are no charges for secure social video calls.

We will come back to the issue of potting in the new year—I look behind me to see whether my noble friend Lord Attlee is here—so that is a joy which awaits us early in 2022. If I may, I will deal with that at that time.

Autonomy and flexibility for governors are important and we will discuss with them the appropriate KPIs in this context. However, ultimately, the buck always stops with Ministers.

I turn briefly—I am conscious of the time—to the points from the noble Lord, Lord Paddick. He asked, “Who deserves a second chance?” The short answer is everybody, perhaps with the exception of those who have a whole life order, because that means, essentially, that you are there for life. We can have an interesting debate about whether that means you deserve a second chance, but the nature of that sentence is obviously somewhat different. I agree about the importance of education. Some prisoners may deserve to have the book thrown at them, but all prisoners deserve to have books thrown to them. We think that prison education is very important. As to asylum seekers, can we pick that up when we debate the Nationality and Borders Bill next year?

Regarding drugs, I am grateful that the noble Lord, Lord Paddick, welcomes our strategy. He asked why it has taken so long. As it is the festive season, could I invite him to concentrate not so much on the ghost of Christmas past but to join us in looking to the ghost of Christmas future? We are putting new money in here. We have a £785 million package for treatment and delivery, and we are now investing £120 million of new money over the next three years for drug treatment in prisons. As far as drug treatment out of prisons is concerned, which the noble Lord rightly focused on as well, we are rolling out £80 million of drug treatment funding with the Department of Health and Social Care to ensure that prison leavers get the support they need. I think I have dealt with his points on prison officer retention and pay.

On the community service accommodation point, the Department for Levelling Up, Housing and Communities announced this scheme on 28 July 2021. It is a pathway for prison leavers to give them a route from prison to their own private rented sector accommodation. Local authorities will be providing monitoring information to that department alongside wider monitoring information on homelessness and rough sleeping. Overall, we have allocated £13 million to 87 schemes across 145 local authorities. If there is anything more that I can say on that, perhaps I can drop the noble Lord a line. I have an eye on the Clock and am conscious that others will want to get in, so I hope the House will forgive me if I pause there.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

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

My Lords, that is a very encouraging note on which to rise. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.

I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.

For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.

Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.

We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.

Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.

With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.

I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.

Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.

[Lord Paddick (LD)]

Before the noble Lord sits down, could he just confirm that these changes—not allowing fixed penalties or simple cautions—are being made on the basis of no evidence whatever of the efficacy of conditional cautions versus simple cautions? He has just admitted from the Dispatch Box that the Government do not retain any data on the number of conditional cautions versus the number of simple cautions, or about the sorts of conditions imposed, but retain data only on the total number of cautions.

[Lord Wolfson of Tredegar (Con)]

My Lords, I think we might now be in double figures for the times I have been asked that question. I have set out in my remarks, fairly I hope, what lies behind it. The work from the National Police Chiefs’ Council lies behind this; a third of police forces have gone there; and many more are considering it. Whether one calls that evidence or not, that is the basis on which these reforms are predicated. I have answered this question before, and I answered it in Committee. I appreciate my answers may not satisfy the noble Lord, but that is the basis on which we think this is a good idea; and quite a number of police forces already think this is a good idea.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Paddick (LD)]

I was not going to say anything, but I am, I think, the only former police officer in the Chamber. Is the Minister saying that he would be satisfied if somebody were sent to prison for four years for killing a police officer on duty in these circumstances? That seems to be what the noble and learned Lord is saying. In which case, what is the point?

[Lord Wolfson of Tredegar (Con)]

I know it is bad form, but perhaps I can answer in reverse order. I certainly was not saying that. Indeed, the point that I was trying to make was that I was not going to get into what an appropriate tariff would be in any case; I regard that as absolutely a matter for the trial judge. It is not helpful for trial judges or indeed anybody else for Ministers on their feet to hypothesise as to what they might think an appropriate tariff would be in a particular case. The tariff is entirely a matter for the trial judge, who will decide it in the way in which they decide tariffs in other cases of life sentences as well.

To the noble and gallant Lord—forgive me, I am not sure whether I have that right; he is proud not to be a lawyer, a point with which I sympathise—I say that we brought in this amendment as soon as we had thought about the policy and, we think, got it right. When we were thinking about this issue, there were there were a number of points in the policy that required very careful consideration. That took time and that is why it is happening now. I cannot say any more than that.

I was going to acknowledge another point made, but I think I have already responded.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

As I said, I am very alive to the IPP issues, as the noble Lord knows; but the IPP issue and the IPP sentence was a novel sentence which did things that other sentences did not do. Indeed, that is why it was brought in. The shape of this sentence, however, is not novel. It is the application to this particular offence that is new. With the greatest of respect, therefore, I disagree with the comparison to IPP sentences, which were themselves novel.

I hope that I have set out the government position clearly and fairly—

[Lord Paddick (LD)]

My Lords, the noble Lord started his contribution to this debate by saying that he was listening. Surely, he has heard from the House that the House is not content to allow this amendment to pass at this stage. Surely, the only reasonable thing to do in these circumstances—because nobody wants to divide on this issue here and now—is for the Minister to say that he will take it away and bring it back at Third Reading once noble Lords have had a chance to discuss the issue with him between now and Third Reading.

[Lord Wolfson of Tredegar (Con)]

As I hope the House knows from this Bill and plenty of other Bills, I am very happy to discuss issues with anyone at any time. However, points of principle have been made, and points of principle have been answered by me as clearly and cogently as I am able to do. I think that the appropriate thing to do—relative newcomer as I am to this House—is that the Question on the amendment should be put. If people want to—

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

Without turning this afternoon into a jurisprudential seminar, I certainly agree with the thrust of the point made by the noble Baroness that good law is often a combination of rules and discretion. At the level of generality, I would agree. However, it is not right to say that this is rigid; the conditions that can be applied are extremely flexible.

There are really two parts to the answer. First, within the new cautions regime, there is a great deal of flexibility as to the conditions that can be set out. If the noble Baroness looks at Clause 80 for diversionary cautions—which is mirrored in Clause 89 for community cautions—subsection (4) sets out the restrictive conditions and goes down to the one I mentioned in my response to the noble Lord, Lord Paddick, which is

“not to engage in specified conduct”.

That is, essentially, the lowest form of engagement when no other suitable conditions exist. That really creates a condition where the offender is expected not to commit any further offences. That is a very low level of engagement, and when that is suitable will be a matter for the code of practice.

The second part of the answer is to repeat the point I made earlier that other forms of out of court disposal are still available—I mentioned fixed penalty notices and community resolution—so, with respect, I do not agree that we are putting in place a rigid regime. The conditions are flexible and there are some disposals that are outside the cautions structure, even now.

I do not think I did so before, but I invite the noble Lord to withdraw his amendment.

[Lord Paddick (LD)]

Can the Minister clarify something? I think he said something along the lines that the lowest level of condition is that the offender should not engage in similar activity again. So, if somebody is arrested and cautioned and the police say to them “Don’t do it again”, is that a condition attached to a caution?

[Lord Wolfson of Tredegar (Con)]

As I said a moment ago, this relates to Clause 80(4) and Clause 89(4), if the noble Lord looks at the last condition in each of those subsections. The code of practice, as I said in response to the noble Baroness, Lady Chakrabarti, will make further provision for the circumstances in which that would be appropriate. Importantly, and I think differently from the simple caution, the police would still need to monitor conduct to ensure that someone had not reoffended, but that would be less onerous. This is a good example of where the new structure that we are putting in place preserves the best of the old regime but still has it on a more structured basis, focused on preventing reoffending as well as on the rehabilitation of the offender.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

May I first deal with the caution points? I do not want to run those two topics together. On cautions, there is a fundamental point here. The simple caution is really what it says on the tin: a simple caution. In circumstances where the officer decides that it is appropriate to give a community caution with the lowest level—the one that we are talking about now—importantly, to get there, the officer or the authorised person still has to go through the process of speaking to the victim, thinking about what other options are available and looking at what other conditions are available. That process is valuable in all cases. That is one of the strengths of the new regime. I accept that that requires more consideration, but you end up with a system which is more robust and suitable and which results in a more proportionate response. Quite separately, I join the noble Baroness in what she said about Mr Dowling.

[Lord Paddick (LD)]

I thank noble Lords who have participated in this short debate and am grateful for the qualified support from the noble Lord, Lord Ponsonby of Shulbrede.

If I heard the Minister right, he referred to public consultation and the proportion of respondents who said that they did not believe that out-of-court disposals reduced offending. Is he really saying that the Government are now legislating on the basis of public opinion rather than on the basis of evidence? There is no evidence that the two-tier system that has been piloted by a third of forces is any more effective, as I have quoted at length and repeatedly—which the Minister ignores. There is no evidence that this will be a better system for reducing offending. With the greatest of respect, just because the Government assert that it will be does not mean that it is.

I am struggling here. If we take the example of somebody who is arrested for being drunk and disorderly and who the police want to caution, they now have to attach conditions. Presumably, the lowest level of condition will be, “You should desist from behaving like this in the future.” Then the Minister says, “But of course the police will have to put measures in place to monitor the accused’s future behaviour.” I am completely at a loss as to what sort of monitoring the Minister has in mind in such circumstances. The more the Committee examines these proposals—perhaps I should say the lack of them, bearing in mind that we will not see whatever is contained in the code of practice until well beyond the Bill receiving Royal Assent—the more the whole thing begins to unravel.

Clearly, I will apologise to the Minister and to the Committee if I have misunderstood the legislation in terms of withdrawing the police’s ability to give fixed penalty notices for disorder. I hope that the Minister will do the same if it turns out that I am right and he is wrong. However, at this stage, I beg leave to withdraw the amendment.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I thank the noble Lord, Lord Paddick, for putting forward this group of amendments. If I can put it this way, the noble Lord realistically recognised that we have covered some of this ground before—not this particular issue but the conceptual underpinning on which it is based. I hope, therefore, that the Committee and the noble Lord will not take it amiss if I reply relatively briefly, because we have covered some of the points before.

Amendments 174, 176, 182 and 185 relate to the delegated powers contained in Part 6. The amendments propose to remove the clauses that allow the maximum amount of the financial penalty and the maximum number of unpaid work and attendance hours to be specified in regulations and would replace that by putting the details in the Bill. Amendments 175, 183 and 184 set out that the maximum penalty attached to a caution would be fixed at £200 and would make it explicit that an offender’s ability to pay must be taken into account.

The Bill contains powers to set and amend the amount of the maximum financial penalty and to amend the maximum number of unpaid work or attendance hours by regulations via secondary legislation. As I explained on a previous occasion, it was drafted that way to ensure maximum flexibility when responding to the needs of operational practitioners. Any changes to these regulations will be subject to parliamentary scrutiny in the normal way, but removing the delegated powers in their entirety, which is what Amendments 174, 176, 182 and 185 would do, would mean that there is no flexibility to amend either levels of financial penalty or the number of unpaid work hours. If we have the maximum financial penalty on the face of the Bill, to change it or update it, whether because of inflation or anything else, we would have to have to come back to primary legislation. I respectfully suggest that that is not a great use of parliamentary time.

Finally, as to the matter of whether the offender’s ability to pay should be explicitly set out in statute, of course it is a relevant factor, but we believe that this—alongside a range of other relevant factors around giving a financial penalty, the amount that it is set at and how quickly it is going to be paid—is better set out in detail in a statutory code of practice rather than in the Bill. With apologies for taking that a little shortly, I invite the noble Lord to withdraw the amendment.

[Lord Paddick (LD)]

My Lords, I thank the Minister for saying something. The whole point of not allowing it to be in regulations is that it is an important question of principle that once a crime gets to a certain level requiring a certain punishment, it should be for the courts to administer that punishment, in the same way that if a magistrate decides that the punishment they are able to give is not sufficient, they have to refer it to a higher court. These are the people with the experience, training and background properly to assess both the individual and the circumstances, and to apply the penalty. Therefore, it should be dealt with in primary legislation.

This should not be about providing maximum flexibility for operational partners. It should be about consistency and certainty, and citizens knowing that above a certain level of unpaid work, attendance at a training course or a fine imposed by the police, they cannot go without referring the matter to the courts. That is the whole point. I completely accept that the Minister has explained why it is in regulations and not in the Bill. However, he has not addressed at all the argument that it should not be that flexible.

Why is the accused’s ability to pay important? I was talking to my noble friend Lady Randerson about this amendment earlier today; like the noble Lord, Lord Ponsonby, she is an experienced magistrate, now retired. She said, “It is so important to take into account the accused’s ability to pay, because if you impose a fine, say, of £200 on somebody who has little or no income, it will almost guarantee that they commit a crime in order to get the £200 to pay the fine.” That is why that seemingly innocuous addition, which should be in the Bill, is in fact absolutely important. In the light of the Minister failing to engage with the heart of the amendments, we will return to this issue on Report, but in the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I was going to say “comprehensible” but that is a pretty high test— perhaps “as clear as good legislation can be”. I have to leave at least some space for my former colleagues at the Bar to have a career; if we make it too precise, we will do people out of a job. However, there is a serious point here, and I agree with the noble Lord, Lord Paddick, that legislation should be as clear as possible. I will set out what the words are seeking to do, and if it is thought that there is a better way of putting them to get to the same result, obviously, I will be happy to hear it. However, let me explain what they seek to do.

Clause 86 sets out the provisions of PACE and the modifications required to them that will apply upon arrest for failure to comply with any condition attached to a diversionary caution. The purpose of the clause is to ensure that the diversionary caution operates effectively within the existing framework of police powers; it mirrors the approach taken in the Criminal Justice Act 2003, which gives the police powers of arrest for failure to comply with the existing conditional caution.

The subsection of this clause ensures that someone arrested and detained by the police is subject to the same treatment as any detained person, and periodic reviews of their detention are carried out. Obviously, that is important. The same subsection also contains modifications to put specific matters in the Bill: the power to detain those who are unfit to be dealt with at the time of arrest; the power of arrest for detainees bailed for any breach—that is, non-compliance; and the power to search a detainee in police custody following arrest.

The modifications make specific reference to the diversionary caution. For example, the PACE power to search and examine a detainee to ascertain their identity is modified to ensure that the power will still exist where a detainee has failed to comply with any of the conditions attached to the person’s diversionary caution. Therefore, it provides—I was going to say “clarity” but perhaps that might be pushing the point a little—that these powers apply only to the diversionary caution and not also to the community caution, where there is no power of arrest or prosecution for non-compliance. That is why Clause 86(4) is needed. Without the necessary PACE provisions as modified, the powers for police to deal with breaches of a diversionary caution would be limited and that would undermine the effect of non-compliance with the conditions.

I do not know whether what I have said has reassured the noble Lord, Lord Paddick, that the clause is properly focused. I hope that I have explained what it is trying to do. I am not being flippant and I do appreciate that legislation needs to be as clear as possible and that it is important that people understand what it encompasses. However, when one is legislating against the background of other legislation, it can be quite difficult to do it other than by cross-references back. If there is a better way to achieve the same result without adding pages and pages, I should be very happy to hear it, but I hope that I have explained what the clause is focused on and why it is drafted in the way it is. I therefore invite the noble Lord to withdraw the amendment. However, I am happy to discuss this matter between us if there is another way of doing it.

[Lord Paddick (LD)]

I am very grateful to the Minister. Perhaps I may gently suggest that if something akin to what the noble Lord said was contained even in the Explanatory Notes explaining that part of the Bill, we would not have to spend time in Committee trying to understand what it was about. I know that my noble friend Lady Hamwee and I have looked everywhere possible to try and decipher what that meant—to no avail. It may be that to parliamentary draftspeople it is as clear as day—but for us lesser mortals it is not. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope it is in order to pick up one point that was put to me at the end of the last group and say a word on it. I hope the Committee will forgive me. It goes to all groups, in some ways, because it is about how legislation is put online. Legislation.gov.uk has a facility to look at the original texts and unscramble the later amendments, so to speak. A point that occurred as the noble Baroness, Lady Hamwee, was speaking was whether one could put in hyperlinks to take you through different pieces of legislation. I am happy to look into that, but I now turn to this amendment.

My noble friend Lord Framlingham asked what a diversionary caution is. To try to sum up a large part of the Bill in about three sentences, I say that there is going to be a lower-tier disposal called a community caution and an upper-tier disposal called a diversionary caution. Conditions must be attached to both, aimed at one of three objectives—rehabilitation, reparation or punishment. Restrictive conditions can be set, where they contribute to reparation or rehabilitation. In that regard, there is a similarity to the existing conditional caution regime. I hope that answers the question.

I now turn to the substance of the amendment in the name of the right reverend Prelate the Bishop of Gloucester—moved by the right reverend Prelate the Bishop of Durham—alongside the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Beith. It goes to the primary objective of the new two-tier statutory framework, which I have just explained, to provide, as a requirement of the community caution, meaningful court conditions to help an offender stop offending.

I am grateful for the broad support, as a matter of principle, of the right reverend Prelate for the aims of the Bill on out-of-court disposals. I respectfully agree with the point made by the noble and learned Lord on the importance of the caution regime in the criminal justice system. I also agree with the point made by the noble Lord, Lord Ponsonby, that cautions must be carefully considered to avoid the syndrome of repeated interventions.

While the amendment is obviously well intentioned, the Bill already makes provision for the purpose that underpins it in Clause 80 on diversionary cautions and Clause 89 on community cautions. The Bill asks the relevant person to focus on the position of the offender. Of course we all agree that one has to look at the position of the victim, but I agree with the noble Lord, Lord Beith, that one must also look at the offender. The Bill already does that.

While I agree with the broad thrust of the purpose of the amendment, I suggest that it is unnecessary. That is because, aside from the punitive option of a financial penalty, the conditions of both the diversionary and the community caution must be aimed at rehabilitation or reparation, thereby addressing the underlying causes of the offending. Importantly, the cautions enable referrals to support services where relevant as conditions of the disposal. Referrals at this pretty early stage of the criminal justice system could include referrals to relevant intervention services such as substance misuse services, mental health treatment providers or gambling addiction, or restorative justice referrals. All those help to address the underlying causes of offending behaviour and so help to reduce reoffending or the escalation of offending behaviour.

As I have said, a code of practice will accompany the legislation. It will be drawn up in collaboration with stakeholders and subject to a formal public consultation and to an affirmative statutory instrument. I respectfully agree with the noble and learned Lord, Lord Thomas, as he would no doubt expect me to, as to the fundamental importance of the rule of law in this and, indeed, other areas. I wonder whether actually the police are best viewed as being seen as part of the Executive; we could probably have an interesting debate on that. The answer might be that it depends on the purpose for which you are using the principle of the rule of law as to what exactly it would encompass.

To give the noble and learned Lord a bit more information, the way that the code of practice will be put together is that there will be an informal stakeholder engagement exercise with police forces, the National Police Chiefs Council, police and crime commissioners, the CPS and relevant third-sector organisations, which will help with drafting. We will then have a formal public consultation, which will take place next year. Importantly, the power to issue the code and the regulations is contained in the clauses of the Bill, so we will not have the power to do that until the Bill receives Royal Assent and is commenced.

I want to pick up the underlying points made by the noble Lord, Lord Paddick. I hope he will not take it amiss if I do not respond to those. There is a clear conceptual gulf between us, if I may put it that way, as to the purpose of the regime and whether it is soundly based. I set out the Government’s position on that earlier. I am not sure it is helpful if I just repeat those words each time because there is that gulf between us and I am not sure it is going to be bridged. I hope the noble Lord will therefore not take it amiss if I do not respond in detail.

[Lord Paddick (LD)]

It is not a conceptual gulf. It is a question of where the evidence is that cautions with conditions attached are more beneficial than cautions without conditions attached. I can answer that question for the Minister: there is no evidence, because the Government do not collect any. That is coupled with the fact that this House will be asked—this Committee is debating it now—to sign a blank cheque for all this when the detail has not been worked out. There will be public consultation and consultation with stakeholders, but we have no idea what this is going to look like in the end. That is no way for this House to proceed with this legislation.

[Lord Wolfson of Tredegar (Con)]

Well, we did have that exchange. I went through the way that it has been piloted in various police forces, and we had an interesting exchange. I am happy to look again at the record and see whether there is anything else that I can add, but I am not sure that will necessarily persuade the noble Lord in any event. Again, I am not sure it is helpful to go through those fundamental points each and every time we come to one of these amendments.

I hope I have responded substantively—and, I hope, substantially—to the amendments tabled by the right reverend Prelate. For the reasons that I have set out, I ask him to withdraw them.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Lords Hansard - part two & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I am very glad to hear that. It is the first time in my experience—and I am not complaining, because the officials have worked incredibly hard on this—that the Box is entirely without officials.

To go back to the debate about delegated powers, this is what the Delegated Powers Committee said in general about this:

“We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny; … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and …allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published … We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”


In relation to this group of amendments, the committee makes complaint about three sets of delegations. The first is in relation to what could be suitable for community cautions. As I indicated, community cautions are for less serious offences. The Bill provides that they cannot be given for the most serious, indictable-only offences, but it gives the Secretary of State power to determine by affirmative procedure regulations the other offences for which they cannot be given.

The Government put forward a memorandum to justify this approach which said as follows:

“The list of offences which may not be suitable for”—


a community caution—

“is likely to change regularly”

and

“will be subject to continual updating and changing which makes it more suitable for secondary legislation”.

The Delegated Powers Committee report states:

“The Memorandum acknowledges that excluding offences from a community caution disposal ‘will have a significant impact on offenders, victims and the public’. It states that the affirmative procedure ‘is considered appropriate as it enables Parliament to debate the details of the restrictions [on community cautions]’.”


The Delegated Powers Committee report says that the Government are relying on a comparison with Section 130 of the Sexual Offences Act 2003 and then establishes, clearly rightly, that comparison with that Act is misguided and wrong. It says that the Government should follow the 2003 Act, but accurately and not inaccurately. What the Sexual Offences Act 2003 does is put in the Bill the excluded offences but gives power for them to be amended from time to time. Our amendments would follow the Delegated Powers Committee’s recommendations. I hope that the Government will feel able to accept that. If the noble Lord could indicate that, it would shorten that bit of it—sadly not.

The next group of problems is the conditions that are attached to a caution. A diversionary caution or a community caution must have one or more conditions attached to it. These can include requirements to carry out unpaid work, to attend a specified place for a specified purpose, and to pay a financial penalty. The complaint that the Delegated Powers Committee makes about this is that you need only the affirmative procedure where you are increasing the penalties but not when you are decreasing them.

The Delegated Powers Committee report says:

“We consider that the Government’s justification for its approach”—


applying only when penalties are increasing and not when they are decreasing—

“is flawed because it focusses solely on the impact of increases or decreases on the rights of offenders and on operational resources and fails to take into account the significant effect that decreases are capable of having on the way in which the policy works—and that making the new cautions less onerous forms of disposal may be something about which stakeholders (including victims of crime) and members of both Houses may have legitimate concerns.”

Again, we agree with that. The committee continues at paragraph 75:

“Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny”.


That is simply to quote what the Delegated Powers Committee says.

The final group relates to Clause 129 and Schedule 13, which gives the courts power

“to review community and suspended sentence orders, and … to commit an offender to custody for breach of”

such orders. The memorandum that the Government presented to the committee says that

“the aim… is to improve offender compliance with community orders and suspended sentence orders and to reduce reoffending. This is achieved through a multi-agency approach with links to wider support services, one element of which is providing for close oversight by a court of particular sentences being served in the community”.

The intention is to pilot for an initial 18-month period, and that may be applied to different cohorts throughout the country.

The committee report points out:

“The Secretary of State is given power to specify, by negative procedure … categories of community orders and suspended sentence orders that qualify for the review process”—


and it sets out certain things they can take into account in relation to it. The report continues:

“Where regulations specify a category for the first time, there must be an initial pilot period of 18 months … Both regulations that specify a category for the purposes of a pilot … are subject to the negative procedure … The Government’s justification for this is that ‘the principle of the provisions is made clear on the face of the legislation, and the power is limited by the legislation such that it may only be used to apply the provisions to different courts and cohorts of offenders … These matters are administrative in nature’.”


That is what the Government said in their memorandum.

The Delegated Powers Committee disagreed with that, saying that

“the categories of persons and the offences to which the review process will apply go to the heart of the underlying policy. The power gives the Secretary of State maximum discretion … but with minimal scrutiny … We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure.”

That is what our third set of amendments does in relation to that.

I apologise for taking so long to go through this, but these are important issues.

[Lord Paddick (LD)]

My Lords, I agree with the noble and learned Lord about the importance of this part of the Bill. Although the noble and learned Lord has just apologised for the length of his opening remarks on this group, I must warn the Committee that that was nothing compared with my opening remarks on the next group, if the Government wish to go there this evening.

The noble and learned Lord, Lord Falconer of Thoroton, is right to demand that the list of excluded offences for which the police cannot give a community caution is in the Bill. This is yet another example of why this Bill is a shell, lacking in sufficient detail for noble Lords to give their consent to it. The Delegated Powers Committee agrees, as the noble and learned Lord has said.

He is also right that any changes to the maximum number of hours of unpaid work or attendance, or the maximum financial penalty that may be attached to a diversionary or community caution, should at least be subject to the affirmative resolution. But as the noble and learned Lord has said on previous groups, the House still has no ability to amend such an order. I will have more to say on that issue in a later group. Again, the Delegated Powers Committee agrees, as the noble and learned Lord has said.

Amendment 214B is about community orders and suspended sentence orders, and has, as far as I understand it, nothing to do with police cautions—I look for reassurance. I have no idea why it is in this group of amendments, other than that it is also covered by the Delegated Powers Committee’s report. I have no doubt that the noble and learned Lord is absolutely right about that as well, and the Delegated Power Committee agrees.

We support these amendments, mostly because they are right, and, in the case of Amendment 214B, because the noble and learned Lord is usually right.

[Lord Wolfson of Tredegar (Con)]

My Lords, I recognise that this group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton, has come about because of recommendations from the Delegated Powers and Regulatory Reform Committee in its sixth report of the Session. It is a pleasure to discuss this matter, even at this hour. As to timing issues, I am sure the noble and learned Lord knows better than me with whom to take that matter up; I am not sure I am the correct post box for that.

I can assure the Committee that, even as the noble and learned Lord was speaking, I received a WhatsApp—I am not waiving privilege on all my WhatsApp messages—from the Bill team: “To reassure, we are here.” The team cannot answer back, but I can. I regret the way that the team’s their work ethic was impugned, unintentionally, I am sure.

--- Later in debate ---

[Lord Paddick (LD)]

If I can adopt a previous role that I had as a police officer and come between the two parties to try to assist, I noticed that earlier this afternoon when the Minister was leading on a group of amendments, there was nobody in the Box. I assumed that that must have been because the officials were working remotely. I have to say that on this occasion I agree with the Minister. Even at—I do not know what time it was, perhaps 4 pm this afternoon—there was nobody in the Box when it was an MoJ issue.

[Lord Wolfson of Tredegar (Con)]

We can move on. We do not need to raise the temperature at 11.30 pm. We have other things to argue about.

Let us get to the substance of this. The committee proposed a number of changes relating to the cautions and problem-solving courts measures in the Bill, as elaborated by the noble and learned Lord and the noble Lord, Lord Paddick. I shall make the central point that I want to make, because it goes to all the points that have been put down. I can assure the Committee, and in particular the noble and learned Lord, that the Government are looking at all the committee’s recommendations, which underpin these amendments, as part of our wider response to the committee, and we will revert to it in due course. I therefore hope that as time goes on, if I can put it that way, these issues will be highlighted, and I hope resolved to the noble and learned Lord’s satisfaction, but, if not, we can continue to discuss them.

I shall highlight just one matter, because I want to leave time for the noble Lord, Lord Paddick, to give us his full oration on the next group, if we have time for it. On Amendment 169D, on excluded offences in respect of community cautions, the committee, as the noble and learned Lord explained, recommended that these offences are listed in the Bill rather than set out in regulations. As he explained, regulations would then be made where further amendments became necessary.

With respect to the committee, we maintain the position that the offences that are to be excluded for the purposes of community cautions are to be made by regulations. We point out that this approach of using regulations to identify excluded offences mirrors the approach taken in the Criminal Justice and Courts Act 2015, which sets out that the simple caution, if I can call it that, may not be used in respect to offences specified by order made by the Secretary of State by secondary legislation. Just as there, so also here we believe that secondary legislation is the appropriate place for setting out the list of excluded offences, as the level of detail required may not be appropriate or suitable for the Bill. We suggest that that approach also allows sufficient time for essential engagement with stakeholders to identify those offences and to enable future changes to be incorporated without primary legislation.

I point out that the secondary legislation that we are talking about here is subject to the affirmative procedure, so the transparency that comes with that procedure will be maintained. I suggest that it would be a little bit clumsy and rare to use primary legislation for what has to be a fairly flexible approach to listing offences that should not be cautioned. We will of course discuss this carefully with stakeholders. The aim will be to bring an SI to Parliament that will be acceptable. I apprehend that I have not responded to the underlying point made by the noble and learned Lord, because I said that we will respond to the committee, but I hope he understands the thrust of my response and that for present purposes he is able to withdraw the amendment.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

Absolutely. Let me deal with the out of court disposals themselves. I hope I have answered that point. There will, we hope, be a greater consistency of approach, but there will be differences. As for the scrutiny, as I said earlier, the code of practice will, we hope, provide a level of consistency of scrutiny that we also want to make sure is part of this structure. As I said earlier, that will be subject to an affirmative SI.

I am conscious of the time. I think we have drifted into Tuesday, so perhaps I should just conclude by thanking the Committee for contributions and invite the noble Lord to withdraw the amendment, although I am sure the discussions will continue. I also beg to move that the clauses stand part of the Bill.

[Lord Paddick (LD)]

My Lords, it is completely unacceptable that the noble Lord has said on numerous occasions that, because of the hour, he is not going to go into detail in answering the issues that I have raised. We either scrutinise this Bill properly or we do not. I do not care what time of night it is; we will scrutinise this Bill effectively. That is the first point to make.

[Lord Wolfson of Tredegar (Con)]

To be clear, the only reason I made that point is because I have a very long answer—I am happy to read it—explaining the different ways particular police forces have responded to the point. Apart from that, I gave exactly the answer I would have done had it been four o’clock in the afternoon. I assure the noble Lord that I have not deleted one sentence from my notes on the answer.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

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

[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.

--- Later in debate ---

[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.

Counter-Terrorism and Sentencing Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Paddick (LD) [V]]

My Lords, I wish either that this group had been grouped with the previous group or that I had spoken in the previous group, as we seem to be going over the same ground. Can I also push my luck, at the invitation of the noble and learned Lord, as an out and proud non-lawyer and wonder out loud whether lawyers feel somewhat threatened that there might be a machine more able to tease out whether someone is telling the truth or not, or even to tease out a disclosure, than a lawyer? I do not believe lawyers need to worry. I feel this group and the previous one turned into an extension of the teach-in. But I shall press on.

Amendment 20, moved by the noble and learned Lord, Lord Falconer of Thoroton, to which my noble friend has added her name, calls for a review of polygraph testing on terrorist offenders based on a pilot scheme. I take a slightly different view to my noble friends Lady Hamwee and Lord Marks, probably because they are pure Liberal Democrats, unlike me, who am contaminated by 30 years’ experience as a police officer.

Yesterday, in discussion on the use of polygraph testing in the Domestic Abuse Bill, the Minister talked about how polygraph tests were used. I join other noble Lords in saying how helpful the teach-in on polygraph testing provided by the Ministry of Justice was, and I thank the ministry for it. In that presentation, if I recall correctly, we were told that the tests are 80% to 90% accurate, on the basis of tests carried out on sex offenders. The tests measure physiological changes that occur if someone is trying to think of a wrong answer about an experience they have had in the past. People usually instinctively think of the truthful answer before they offer a dishonest alternative, and this produces physiological changes that the tests pick up. The evidence suggests a dishonest response cannot be used in court, and it is not used to recall someone to prison, but it might prompt further investigation by the police. Failing the test is not a replacement for any other form of risk assessment.

From the notes I made at the time, which take me back to giving evidence in court as a police officer, polygraph tests also prompt disclosures that might not otherwise occur. If such a disclosure indicates the subject has breached their licence conditions or is a threat to the public, this can result in prison recall. In short, disclosures can result in immediate sanction, but failing the test can only lead to further investigation.

Although polygraph tests have been used on a large number of sex offenders and have, therefore, been thoroughly evaluated, it will be more difficult, even with a pilot, to evaluate use with terrorists, as there are far fewer of them. My noble friend Lord Thomas of Gresford mentioned the right to silence, recalling what we were told in the teach-in. The difference here is that these are convicted offenders on licence, who have no right to silence. However, the science is the same whether we are dealing with sex offenders or terrorists, and polygraph tests are useful where there is a pattern of behaviour rather than a single act. It is, therefore, anticipated that their use in terrorism cases will be similarly effective. There has already been considerable experience of using polygraph tests and evaluating the results, somewhat at odds with the comments of the noble and learned Lord, Lord Woolf. But in agreeing with the noble and learned Lord, I think that it is true to say there has been very limited, if any, experience of using polygraph tests in connection with terrorism offences.

I feel sure that the Government will use polygraph testing with terrorists and, as we will hear in a later group, those subject to TPIMs, on a trial basis, as they intend to do in relation to domestic abuse. But the opportunities to evaluate their effectiveness with terrorists will be more limited, because, as I said, the numbers are considerably smaller. I am sure the Minister will say whether I got that right.

[Lord Wolfson of Tredegar (Con)]

My Lords, on the face of it the purpose of this amendment, tabled by the noble and learned Lord, Lord Falconer of Thoroton, is to provide for a pilot of polygraph testing for terrorist offenders in the UK and for a report to be prepared and laid with a recommendation on commencement before the provisions are commenced. I appreciate, however, that the debate has gone a little broader than that, and I will try to respond in my remarks to all the points put to me. I should say at the outset that I am impressed by the note-taking ability of the noble Lord, Lord Paddick, which has obviously not diminished with time. I hope that the notes which he took are consistent with not only what he was told at the meeting, as I am sure they are, but with what I said on the previous group and what I am going to say on this group as well.

Polygraph examinations have been used successfully in the management of sexual offenders by the National Probation Service since 2013, following an initial pilot. Offenders involved in the pilot stated that, although they did not like being tested, for many it helped them modify their behaviour and comply with other licence conditions. While I therefore respectfully agree with the comments of the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon, that we are on a learning curve, we are in fact someway up the curve, if I may put it in those terms. The noble and learned Lord, Lord Woolf, was right to remind us of Clause 35(1), which provides for regulations in this context. The breathalyser is a good example, as put before the Committee by the noble and learned Lord, Lord Morris of Aberavon, of how we must always in the criminal justice field avoid being shy of using technology where it is available. The question is how it is to be used; it is in that context that I come to the questions put to me by the Members of the Committee.

Having put that provision in place for sexual offenders, the independent evaluation of mandatory testing on sexual offenders carried out by the University of Kent produced extremely positive results. As the Committee is aware, we have since rolled out polygraph testing in that context. We must therefore be wary of two things. First, we must be wary of the trap of saying that because something might or might not be used in “The Jeremy Kyle Show”, it should form no part of the criminal justice system. “The Jeremy Kyle Show”, which I think has now stopped, can look out for itself. My concern is to ensure that we have proper provisions for polygraph testing in the criminal justice system.

The second thing we must be careful of, if I may respectfully say so, is not to fall into the trap of thinking that anything which comes from the United States of America is inherently suspect in the criminal justice field. I would gently point out to the noble Baroness, Lady Hamwee, that the American Polygraph Association’s standards are those of an international professional association for polygraph examiners. That association carries out research and provides accredited training for examiners. It also provides mandatory professional development training, which all examiners must complete every two years to maintain their accreditation. Its standards are used by examiners across the world, and the Government want to ensure that those standards are maintained for examinations conducted on terrorist offenders.

Domestic Abuse Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Lord Paddick (LD) [V]]

My Lords, I agree with the comments made by the noble Baroness, Lady Redfern, in a broader context. On the particular issue in this group, I have listened very carefully to the case made by the noble Lord, Lord Rosser, reinforced by the noble Baroness, Lady Newlove. The noble Lord talked about a risk assessment before cross-examination if someone has a history of abuse. Presumably he is referring to somebody with a history of abuse but whose convictions are spent under the Rehabilitation of Offenders Act. The noble Baroness, Lady Newlove, talked about repeat offenders. Repeat offending is very common when it comes to domestic abuse, but I wonder whether a perpetrator with a history of abuse, a repeat offender, is less likely to have spent convictions or cautions.

The Rehabilitation of Offenders Act is an important piece of legislation that allows offenders to move on from their previous offending, but my understanding is that if a court decides that justice cannot be done without the conviction or caution being taken into account, the court can take account of a spent conviction. This potentially means that a court could prevent cross- examination of a victim of domestic abuse if it decided that a spent conviction or caution was relevant.

I look forward to hearing the Minister’s understanding of the legislation as it is. We have no objection to the Government’s amendments in this group.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will begin with the amendments tabled by the noble Lord, Lord Ponsonby, to which the noble Lord, Lord Rooker, so ably spoke, and will then turn to the government amendments, which deal with various technical and drafting changes to the same clause.

As has been explained to the Committee, Amendment 114, in the name of the noble Lord, Lord Ponsonby, would remove a qualification of the automatic prohibition on cross-examination in family proceedings by those convicted of, cautioned for or charged with specified offences, and their cross-examination by the victim or alleged victim. The removal of this qualification would mean that spent convictions and cautions under the Rehabilitation of Offenders Act 1974 would continue automatically to trigger the prohibition, irrespective of how old they may be or how circumstances might have changed. I respectfully agree with the noble Lord, Lord Paddick, that the Rehabilitation of Offenders Act is a very important provision. It enables a line to be drawn and people to move on.

It is in that context that, at the moment, the form of the Bill is that spent convictions and cautions should automatically trigger the prohibition only where evidence in relation to the conviction or caution is admissible in relation to the current family proceedings. However, as the noble Lord, Lord Rosser, reminded us, and as the Government fully acknowledge, the damage caused by domestic abuse may often last for decades, sometimes a lifetime, and well beyond the point at which a conviction or caution is spent. One must also consider the point made by my noble friend Lady Redfern, that the court process is daunting, especially for victims of abuse. Therefore, the noble Lord, Lord Rosser, is right to test the adequacy of Clause 63 in guarding against cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Members of the Committee will have been moved by the personal testimony of my noble friend Lady Newlove, when she explained the effect that such cross-examination can have.

However, the Government believe that Clause 63 provides adequate protection in such circumstances. We must bear in mind that the automatic prohibition on cross-examination is also triggered where a protective injunction is in place—that is the force of the new Section 31S—or where prescribed evidence of domestic abuse is provided to the court; that is the force of the new Section 31T. Moreover, and of greater importance here, given the sometimes more historical nature of abuse, is what we intend should become Section 31U of the Matrimonial and Family Proceedings Act 1984. This is an important provision, which provides context against which the noble Lord’s amendment should be considered.

New Section 31U is in deliberately broad terms and provides for a wide discretion to meet the particular facts and circumstances of the case before the court. It enables the court, either in response to an application or of its own motion, to prohibit cross-examination where it would diminish the quality of evidence or cause significant distress, so long as to do so is not contrary to the interests of justice. Any such direction will remain in place until the witness is discharged, unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Therefore, to answer the point made by my noble friend Lady Newlove, we consider the Bill sufficient in cases of spent convictions, because that provision enables the court to impose the ban if it appears to the court that the two conditions in new subsection 1(b) are met. That provision would therefore also deal with the point made by the noble Lord, Lord Rosser, concerning cases of past injunctions or restraining orders. New Section 31U is a very broad provision that enables the court to respond to the facts of a case and ensure that a suitable order is made. I agree with the noble Lord, Lord Paddick, that it is important that the court has this ability, for the reasons that I have set out, under new Section 31U. I hope that this gives the Committee, particularly the noble Lord, Lord Rosser, what they sought, which, according to my note, was clarity and assurance. I hope that I have provided both.

--- Later in debate ---

[Lord Paddick (LD) [V]]

My Lords, I am very grateful to the Minister. I have two questions which rather puzzle me. First, he talked at length about praising judges for how they can quickly and flexibly adapt the common law of self-defence to new cases and how beneficial it is for it to be dealt with in that way, rather than with rigid primary legislation. Can he therefore explain why Section 76 of the Criminal Justice and Immigration Act 2008 was thought necessary?

Secondly, the Minister talked about the option to retreat in domestic abuse cases. Referring to the two scenarios that I spoke about from personal experience, I certainly had the option to escape out of the flat—luckily it was a ground-floor flat—when somebody was trying to break the front door down in the burglar scenario, but when my abusive partner had me up against the kitchen wall, I had very limited options to retreat. I cannot see how the option to retreat is more valid in the burglar situation than it is in the domestic abuse situation. Perhaps the Minister can help me.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.

Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.

Domestic Abuse Bill

Debate between Lord Wolfson of Tredegar and Lord Paddick

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

[Lord Paddick (LD) [V]]

My Lords, Amendment 71, in the name of the noble Lord, Lord Ponsonby of Shulbrede, supported by the noble Lord, Lord Anderson of Ipswich, would make the very sensible change from the vague requirement to allow the alleged perpetrator to make representations about the issue of a domestic abuse protection order from

“as soon as just and convenient”

in Clause 32(4)(a) to the more usual and precise “as soon as practicable”—or perhaps it should be “as soon as reasonably practicable”—to which Amendment 71 would add, “within five working days.” In addition to the reasons given by the noble Lord, Lord Ponsonby, I would say that such orders can have profound, and not immediately obvious, unacceptable consequences for the perpetrator, alleged or otherwise—as my noble friend Lady Hamwee mentioned when she said that the process needed to be fair to both sides.

Amendments 72 and 73 limit conditions imposed by a domestic violence protection order granted without notice to only negative or prohibitive requirements, not positive ones. The noble Lord, Lord Anderson of Ipswich, drew the comparison with TPIMs; I shall draw a different comparison. This legislation appears to be similar to that governing knife crime prevention orders made under the Offensive Weapons Act 2019. In the absence of the defendant, when an order is made without notice, only an interim knife crime prevention order can be granted, under Section 16(3)(a) of the 2019 Act, with proceedings on the knife crime prevention order itself being adjourned. The interim order can impose prohibitions that may be imposed under a full order, but none of the positive requirements. Why not here?

I ask the Minister, in support of this amendment, why such a distinction between, say, an interim domestic violence protection order and a full order is not part of this Bill. Consistency in legislation, particularly in the criminal law, where people must be able to understand clearly what is expected of them—an important part of the rule of law, to which this Government appear to be paying scant regard, judging by recent form—is important. It is not inconceivable that someone who is or has been subject to a knife crime prevention order may, at some stage, be subject to a domestic violence prevention order. Inconsistency such as that between this Bill and such recent legislation as the Offensive Weapons Act 2019 is unhelpful and unwelcome.

As the amendments have the support of the noble and learned Lord, Lord Mackay of Clashfern, of an active magistrate, of a former Crown Court recorder and of a former Home Secretary, it would, at least in normal times, be difficult for the Minister to disagree. But I am sure he will.

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

My Lords, in response to that last comment, it is almost impossible for me not to rise to the occasion. First, I thank the noble Lord, Lord Ponsonby of Shulbrede, for setting out his case for the amendments. Of course I have listened carefully to everything in the debate, particularly because, as the noble Lord, Lord Anderson of Ipswich, said, the points have been put in a constructive spirit. I take on board, of course, the point made by a number of speakers, including in particular the noble and learned Lord, Lord Mackay of Clashfern, that the amendments have the support of the Magistrates Association.

Clause 32 sets out when the court can make a domestic abuse protection order without prior notice of the proceedings having been given to the alleged perpetrator. Typically, as is also the case with existing protective orders, the courts will provide the alleged perpetrator with prior notice of an application for a domestic abuse protection order and of the hearing. However, like existing protective orders, a DAPO can be made without prior notification if there is an urgent need. Clause 32 sets out that a court may make such an order without prior notification

“where it is just and convenient to do so”.

That is in subsection (1).

Clause 32 also specifies, in subsection (3), that before making an order without prior notice,

“the court must have regard to all the circumstances”

of the case. Without limiting the breadth of that requirement, the clause then goes on to list a number of specific factors, three of which I will draw attention to. The first is

“any risk that, if the order is not made immediately,”

the alleged perpetrator will cause significant harm to the victim. The second is whether the victim is likely to be

“deterred or prevented from pursuing the application if an order is not made immediately”.

The third is

“whether there is reason to believe that”

the alleged perpetrator

“is aware of the proceedings but is deliberately evading service”.

Those provisions are crucial for ensuring that the victim can obtain the protection they need in all circumstances.

However, we agree, of course, that the alleged perpetrator should be able to exercise their right to make a representation to the court after such an order—an order without notice—has been made. That is a basic principle of justice: courts normally operate on what has traditionally been called audi alteram partem—it is a pleasure that one can still use Latin in the court of Parliament, even if you cannot use it in the courts of justice any more—which obviously means “both sides must be heard”. Where that has not been the case, for reasons of urgency or otherwise, a hearing where both or all parties are present is then convened. Therefore, Clause 32 already specifies that, when the court makes an order without prior notice, a return hearing must be scheduled

“as soon as just and convenient”.

I recognise that the noble Lord’s Amendment 71 sets a time limit of five working days; I understand his reasons for doing this, but there are a number of problems with this approach, and I shall set out three. First, the amendment would make our approach inconsistent with other protective orders, which require return hearings to take place as soon as is just and convenient. We do not see reason to take a different approach on that point for DAPOs.

Having said that, each sort of protective order must be looked at in its own circumstances, along with the mischief and harm that the order is seeking to address. Therefore, on the point made by the noble Lord, Lord Paddick—that there should be a direct read-across from knife crime prevention orders as to positive and negative factors or the phrase “as soon as practicable”—the problem with such analogies is that they are different. One must look at each sort of order on its own terms.

Secondly, the period of five days is somewhat arbitrary. As the noble Lord, Lord Blunkett, pointed out, in the current circumstances five days might or might not be realistic. I will resist the opportunity to respond to his points about backlogs in the justice system in this short debate; I have done so elsewhere. I will also resist responding to my noble friend Lord Cormack’s point about the article in the Times, which I have only skimmed and have not had a chance to read in detail. I suggest that it is better to have a just and convenient timescale.

This leads me to my third point: we would not want a court to be, or to feel, forced to hold a hearing within the five-day period if a slightly longer period might be more suitable—for example, if the respondent’s preferred counsel were available on the sixth day but not the fifth. Another example might be the judge who granted the initial order being available on the sixth day but not the fifth, when it might well be in the interests of the parties and the justice system for the same judge to hear the matter on an all-parties basis. Therefore, for those reasons, while recognising the reasons behind the amendment, we are not persuaded that it is required.

I now turn to Amendments 72 and 73 to Clause 33. The existing provisions in Clause 33 enable the court to impose “any requirements … necessary” for the protection of the victim from domestic abuse or the risk of domestic abuse. This includes both prohibitions and positive requirements. Any order the court makes must be necessary and proportionate to protect the victim. Although I, of course, respect the experience of the noble Lord, Lord Anderson of Ipswich, while sitting as a recorder, that one would not normally make a positive order in the absence of a perpetrator, it may be important to do so in certain circumstances, and the courts should have the flexibility so to act.

I agree with the noble Lord’s view that, while it is important that the court can impose the necessary requirements by making a DAPO, we must ensure that the alleged perpetrator is not punished for breaching any requirements they were not aware of. This is especially the case as a breach of positive or restrictive requirements may be a criminal offence. In this context, it is important to take on board the point of the noble Lord, Lord Blunkett, that we must not, if I may adapt his phrase, be taken for a ride in this important area.

For this reason, Clause 37 sets out that, where an order is made in the alleged perpetrator’s absence, the person does not commit an offence as regards breach of any of the requirements imposed by the order, whether restrictive or positive, until that person is aware of the existence of the order. This approach is consistent with other orders in this area. I assure all noble Lords, particularly the noble Baroness, Lady Hamwee, who made this point, that these are serious amendments, as has been said. We have considered them extremely carefully.

In the light of the explanations I have given this afternoon, I hope that the noble Lord is now content to withdraw his amendment.

--- Later in debate ---

[Lord Paddick (LD) [V]]

My Lords, I am grateful to the Minister for his application, but I have to confess to being slightly confused or, at least, lacking some detail from his arguments. At one point, he said that the wording in the Bill is similar to other protective orders and that is why the Government do not support the amendments; yet, at others, he said that the reason why it is not consistent with other protective orders is that they are different.

I do not expect the noble Lord to be able to give me chapter and verse here and now as to why knife crime protection orders are different from domestic abuse protection orders, but I would be very grateful if he could write to me to explain why, on the one hand, the Government argue that the wording needs to be the same as other protective orders, while on the other, they argue that the amendments are faulty because they are different from other protective orders.

[Lord Wolfson of Tredegar (Con)]

My Lords, there will be correlations and differences between various orders in this context. I can certainly undertake to write to the noble Lord on this point, but I hope I can go one better: if, in addition to a letter, a conversation would be helpful, I am very happy to offer that as well.