Nationality and Borders Bill

Viscount Hailsham Excerpts

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

[Lord Judge (CB)]

My Lords, the noble Baroness, Lady Chakrabarti, has asked me to open the batting on this amendment. It is a very short, important and simple amendment that addresses an unnecessary problem. The Minister has told us—no doubt on the basis of legal advice—that the Bill in its present form is compliant with the 1951 convention and the 1967 protocol. In being so, the argument is, it will fulfil the Government’s repeated assertions that this is precisely what the Government intend. Indeed, the Minister said so in terms in answer to my request in Committee, and I apologise to her because at that late time of night I had simply missed what she said, or at least I had not fully absorbed it. She said:

“We are absolutely firm … that nothing in the Bill undermines our convention obligations”.—[Official Report, 10/2/22; col. 1985.]


So what is this all about?

I mean no disrespect to the Minister, of course not, but her statement is no more than mere assertion—an assertion of opinion based on what the department’s legal advisers have told and advised her. Some of us—indeed, many of us—share the Government’s apparently absolute commitment to the convention, but we do not think that the Bill does. We believe that the Government are wrong. In our view, provision after provision in Part 2—the debate will happen later on—contravenes the convention. With many others, I shall support the later amendments that seek to achieve compliance, simply because we believe that the provisions are not compliant. Many of us are lawyers too; we have to address convention issues, but many of us are not lawyers and are simply reading what the proposed legislation actually says. We are convinced that, as things stand, the Bill contravenes the convention, and does so repeatedly.

This is not a lawyerly quibble: even as we speak the problems of refugees are being shown to us in Ukraine. Rather than a lawyerly quibble, what worries me is that the debate has gathered echoes of the Christmas pantomime: “Oh yes,” say the Government, “This Bill is compliant with the convention”, and I reply, on behalf of others, “Oh no it isn’t compliant”, and the Government say, “Oh yes it is”, and we say, “Oh no it isn’t”, and so it goes on. But this is not a pantomime; this is lawmaking. I suspect that I am not the only person here who thinks it is a very strange parliamentary debate in which honest views exchanged in this way overlook that this is a deeply sensitive debate about which there has been much human suffering. The level to which it has plunged in relation to the pantomime is really rather serious.

The only place where this “Oh yes it is, oh no it isn’t” exchange can be resolved is in the legislation itself. If it is accepted, this very simple amendment will achieve both the frequently declared intention of the Government and the objective of those of us who believe that the legislation fails to do so. Let me explain this in a few words.

In future cases, the court will be bound by the provisions of the legislation which we have enacted—by its statutory provisions, not by repeated government declarations of their intentions. Even an advocate of the immense standing of the noble Lord, Lord Pannick, who sought to rely, in court, on the repeated assertions of the declared intentions of the Government, was met with: “But that’s not what the legislation says”. Maybe the noble Lord, Lord Pannick, would have an answer to this, but even if he produced one, it would not be very effective.

If we are right—and I believe we—then we have this absurdity whereby the expressed intentions of the Government will be defeated by their own legislation. That is rather stark. If the expressions on behalf of the Government are genuine—and, although she is not here, I do not for one moment doubt the Minister’s personal good faith—we really are in cloud-cuckoo-land. The amendment will avoid that absurdity. There will be no uncertainty or equivocation. Any decision or policy in relation to the provisions of Part 2, whatever form they may eventually take, will be subject to the convention and protocol. This is on the unequivocal basis that it is a primary requirement of the legislation that any decision of the Home Office officials responsible, and any decision of the court considering those decisions under Part 2, must comply with them.

There is nothing new about a provision like this. I am indebted to the noble Lord, Lord Pannick, among others, for drawing my attention to Section 2 of the Asylum and Immigration Appeals Act 1993. We are right here in this very field. Nothing in the Immigration Rules shall lay down any practice which would be contrary to the convention. This is all that we are asking for here. Let us have that principle set out in the Bill in the form of this amendment.

[Viscount Hailsham (Con)]

My Lords, those who heard the Minister outline the position of the Government earlier today with regard to the plight of Ukrainians must have been dismayed by his response. None the less, I make no personal criticism of him at all.

Some of us have in mind the cavalier attitude of Mr Johnson to treaties that he recently signed, such as the Northern Ireland protocol. When I consider many of the suggestions which come out of the Home Office as to how to deter migrants from coming to this country, I have no confidence that this Government will always comply with the letter—far less the spirit—of the convention. I do not suppose that the new clause proposed by Amendment 24 will be a complete remedy. However, it is a very useful statement of an important principle, and I shall vote for it.

[Lord Rosser (Lab)]

Not surprisingly, there is nothing I could add to what the noble and learned Lord, Lord Judge, has said. We shall certainly be supporting this amendment if it ends up being put to a vote.

Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I rise to support the Government on this matter. It rather caught me by surprise that I was going to but, having studied the amendments with some care, I am on their side. As regards Amendment 116, these provisions are a serious improvement on what went before. I am bound to say that I was very uneasy with what went before but Amendment 116 addresses some of the concerns. I have two drafting points to make, which could be addressed in the House of Commons if the Government were so minded.

First, I absolutely agree with those who worry about the word “significant”. “Significant” is pretty trivial; it is not “substantial” or “serious” and, speaking for myself, I rather hope that the Government substitute “substantial” or “serious” when the Bill gets to the House of Commons.

My second point concerns proposed new subsection (2ZC). Here, I do not think that the Government have gone far enough, because what is being contemplated in that provision as it stands—I am sorry, I simply do not agree with the noble Lord who spoke from the Opposition Benches on this—is a total inability to carry on the work in the vicinity of the noise. But we should also address circumstances where there is a considerable inconvenience to ordinary citizens, which takes me to my fundamental point: of course demonstrators have the right to demonstrate, but ordinary citizens also have rights to go about their ordinary business, to work, to enjoy reasonable tranquillity and to expect others to respect that. It seems that the law has gone too far in favour of a demonstration, and that is very unfortunate. On the whole, I therefore support the Government in this matter.

It is true that if I was drafting this thing, I would have done it slightly differently. I agree with the noble Lord, Lord Coaker, about unease. What does unease mean? The noble Viscount, Lord Colville, makes the same point and I agree. I also agree on the concept of not being able to carry on proper business. That is slightly doubtful to my way of thinking as well. However, on the whole, although I came initially to think these things had gone too far, I now think that the Government are broadly speaking right in trying to bring about a better balance between the rights of demonstrators and ordinary citizens.

[Baroness Jones of Moulsecoomb (GP)]

Could I just mention to the noble Viscount, Lord Hailsham, that these are ordinary people who protest? These are people who quite often just do not agree with the Government. I support a lot of protests that happen at the moment; there are sometimes protests that I do not support, but I support those people’s right to protest. On noise, I agree completely with the noble Lord, Lord Coaker. How do the Government seriously think that protest is going to happen without noise? That is a fundamental part of it, whether it is drums, chanting or singing, or just talking through a megaphone. These provisions really are so oppressive. I have attached my name to Amendments 122, 133 and 147. These clauses should be deleted from the Bill. They are repressive and plain nasty, and they really have to go.

Small Boats Incident in the Channel

Viscount Hailsham Excerpts

Thursday 25th November 2021 Lords Chamber

[Lord Rosser (Lab)]

My Lords, since the Statement was made in the Commons only a relatively short time ago, what I intend to say will be very similar to what was said by the shadow Home Secretary in response to it there.

[Viscount Hailsham (Con)]

It will be precisely the same.

[Lord Rosser (Lab)]

It is not entirely the same, but very close.

On a serious note, yesterday’s tragedy was the most tragic of reminders of the dangers of the English Channel, and that people’s lives are at risk every day in these small boats. It is a sobering moment for us as a nation, for France and for the international community. As I understand it, at least 27 people have died. We think of those lost, their loved ones left behind, and the two who were rescued, who are receiving medical treatment and fighting for their lives. I pay tribute to all those involved in the joint French-British search operation in the air and on the sea, putting themselves in danger to help others.

I believe that there have been arrests in France of those suspected of the vile crime of people smuggling. I appreciate the difficulties and sensitivities when there is an ongoing legal case, particularly in another jurisdiction, but I hope that the Government can assure the House that we will give all the co-operation required by the prosecuting authorities in France if we are able to help in that regard.

On the arrangements that we have in place with the French authorities, and the £54 million, referred to in the previous debate, can the Government set out for how many days a week the full existing surveillance capacity is operating? What will they be doing—as a matter of urgency, I hope—to increase that surveillance, particularly in light of what has happened? What will the Government be doing to deepen intelligence and law enforcement co-operation with the French authorities in other countries, so that the focus is on not only coastal patrols, as it appears to be currently, but disrupting the routes often facilitated across hundreds or thousands of miles by the gangs, who have a reckless disregard for human life?

May I press the Government on properly managed, safe and legal routes, and specifically the position on the Dubs scheme? It was closed down, having helped only some 480 unaccompanied children rather than the 3,000 many expected it to help. Will that scheme be urgently reinstated?

In the Statement, the Government spoke of a worldwide migration crisis, and that is the reality. In view of that, can the Government revisit their decision to cut the international aid budget and lead on the international stage with other countries to help those fleeing persecution? Yesterday’s terrible tragedy must be a moment for change. The time for urgent action to save lives is now.

I noticed that the Home Secretary said in the Statement that she has approved maritime tactics, including boat turnarounds, for border staff to deploy. Can the Minister tell us a little more about these maritime tactics that have been approved? What changes will take place as a result?

As I say, there is a reference to boat turnarounds. I presume that means turning around boats in the channel and sending them back to France, but perhaps the Minister could indicate precisely what that means and whether there are other maritime tactics, as the Statement implies, apart from those boat turnarounds.

I also picked up in the Statement that the Minister repeated the Government’s position, which they have stated on numerous other occasions, that people should claim asylum in the first safe country they reach, and that nobody needs to flee France to be safe. Presumably, if our Government’s stance is that you should claim asylum in the first safe country you reach, they would have to accept that for most people who have come through France and then across the channel on small boats, unless there is evidence to the contrary, France was not the first safe country that they reached. Presumably, most went through other safe countries before they got to France. Do the Government accept that, on the basis of their own statement that you should claim asylum in the first safe country you reach, France’s situation is, in that sense, no different from ours, because France would probably not have been the first safe country that they reached? Some clarification on that issue might be helpful in the reply that I hope the Minister will give to my comments.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

Smugglers have a fairly international reach and are not necessarily based in the UK. Quite often, they are based in eastern Europe or the Balkans and they ply their trade across the world. Where they are based is almost irrelevant; their business model is based on people smuggling and multiple types of crime. Claiming asylum in the first safe country is a long-established international policy.

[Viscount Hailsham (Con)]

My Lords, may I reiterate an obvious point—that if we are to reduce the flow of cross-channel migration, and thus reduce the risk of tragedies, we really have to work very closely with the French? Our interests are the same. To promote that, can we please avoid unnecessary public criticism of and recriminations with the French? Incidentally, I entirely agree with the noble Lord, Lord Paddick, about boat turnabouts. It is a ridiculous proposition.

[Baroness Williams of Trafford (Con)]

I do not think my noble friend has heard me once today say anything negative about the French. The only thing that I have said is that it is essential that we work together. We are exploring all options on deterring people smugglers.

Pre-charge Police Bail: Time Limit

Viscount Hailsham Excerpts

Wednesday 26th February 2020 Lords Chamber

[Baroness Williams of Trafford]

I completely agree with the noble Baroness that this is not just about bail versus release under investigation; there is far more to concluding and charging people than just those two things. She referred to forensics and she will know, I hope, that we have put £28 million into increasing forensic capacity. She will also know, I hope, that we fully intend to put the Forensic Science Regulator on to a statutory footing.

[Viscount Hailsham (Con)]

My Lords, I encourage my noble friend to be very cautious about this for two reasons. First, by definition, it is not under judicial supervision. Secondly, extending the time limits would encourage the police to be rather dilatory in their inquiries.

[Baroness Williams of Trafford]

As I said to the noble Baroness, Lady Kennedy, we fully intend to put this on a statutory footing. RUI has increased following the legislation we passed some two or three years ago, sometimes to more than what bail would have been. We have to look at this area, but I take what my noble friend says.

Deaths in Police Custody

Viscount Hailsham Excerpts

Monday 30th October 2017 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord makes a fair point about people who die post-police custody, which can occur because of a number of different factors. If there is a death after custody, that will still be looked into. I will have to write to him about the specifics.

[Viscount Hailsham (Con)]

My Lords, as one who used to participate in many inquests, I urge on my noble friend the importance of ensuring publicly funded representation at inquests. It is an important way of holding the police to account and scrutinising their actions, thus giving acceptability to the decision of the coroner. I suggest that the coroner should be the determinative voice in deciding whether public funding should be available. It would be good if this process extended not just to deaths in custody but to deaths as a result of police action.

[Baroness Williams of Trafford]

I recall my noble friend making this point during the passage of what is now the Policing and Crime Act. Certainly, the issue of how inquests are funded will be kept under consideration, so I thank him for raising it again today.

Policing and Crime Bill

Viscount Hailsham Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will make some brief observations. When the Government come to consider the recommendations concerning funding at inquests, I hope they will agree to the concept of parity of funding, for all the reasons that have been ventilated on previous occasions. But I repeat what I have said to your Lordships’ House before about the triggering mechanism: I do not believe that the police and crime commissioner should be the trigger for that. The coroner should be the trigger for it. There are three very brief reasons for saying that.

First, the coroner is much better placed to form a view as to the relevance and importance of the representation in question. I do not see that the police and crime commissioner would necessarily have access to the relevant information. Secondly and differently, in some inquests, where the conduct of the police or, indeed, the police and crime commissioner could itself be in question, there is a danger of a conflict of interests. Thirdly, sometimes the integrity of the decision of the commissioner will be in question. What happens when the commissioner is facing an election in short order? He or she may well make a decision influenced by the electoral consequences of that decision. All these things seem to suggest very powerfully that the trigger should be the decision of the coroner, not of the police and crime commissioner.

[Lord Faulks (Con)]

My Lords, the noble Lord, Lord Rosser, seemed to suggest that the Government are using the Bishop Jones report as some sort of excuse to not respond to what is suggested by the amendment. Of course, I will hear what my noble friend has to say, but as I understand the position, the question is being considered very seriously by the Government but it would be rather strange not to consider a report of this magnitude dealing with the best-known example of a series of inquests with improved legal representation before coming to the conclusion, to which they may or may not come, that a response to the amendment is appropriate.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, the House will recall that Amendment 134 sought to increase the maximum penalty for the more serious stalking offence, where the behaviour of the offender puts a person in fear of violence, from the current five years to 10 years. The amendment would also increase the maximum penalty for the racially or religiously aggravated version of the offence from the current 10 years to 14 years. I would like to thank the noble Baroness, Lady Royall, but she is not in her place so I thank her in her absence, for introducing that amendment and explaining her concerns about the current maximum penalties during the debate on this amendment on Report.

The Government have reflected carefully on that debate and wish to ensure that the criminal justice system deals with these offences properly. The Government continue to keep maximum penalties under review and are ready to increase them where there is evidence that they are not sufficient to protect victims. Current sentencing practice suggests that, in the majority of cases, the maximum penalty of five years is sufficient to deal with serious stalking. In a small number of the most serious cases, however, courts have sentenced near to the current maximum. For those most serious cases, we are persuaded that judges should be able to pass a higher sentence than the current five-year maximum. This would afford greater protection to victims and be commensurate with the serious harm caused by these cases. The Government therefore tabled Amendment 134A, to which the Commons agreed, which replicates with some fine tuning the provisions of the noble Baroness’s amendment.

However, we are going further. As I said during debate on Report, we are keen to retain consistency between penalties for related offences. The Commons amendment in lieu will also therefore increase the maximum penalty for the related Section 4 harassment offence of putting a person in fear of violence. In line with standard practice, Amendment 134A also provides that the increase in maximum penalties for these offences will apply only to crimes committed on or after the date of commencement. As the Commons amendment in lieu builds on Lords Amendment 134, I trust that in the absence of the noble Baroness, Lady Royall, the whole House will be content with the substitution. I therefore beg to move.

[Viscount Hailsham]

My Lords, I am sorry to say that I really disagree with my noble friend on this matter. There is absolutely no justification for increasing the maximum sentence, and I have two reasons for saying that. First, I do not believe that the increase will provide an additional deterrent. Either the person in question is rational, in which case a maximum sentence of five years is a sufficient deterrent, or they are not rational, in which case it will make precious little difference. I note my noble friend’s point that the judges have rarely sentenced at the higher end of the existing maximum. My other point is a general one. I am very concerned about overcrowding in prisons. There has been a tendency to increase the sentences imposed by the courts. The newspapers and Parliament are responsible for that in part, and I do not wish to see Parliament increasing the pressure on our prisons. This is a small contribution to that, and I am bound to say I am against it.

[Lord Pearson of Rannoch (UKIP)]

My Lords, I notice that in Amendment 134A the proposal is to increase the penalty from seven to 14 years for what is described as an offence,

“which consists of a racially or religiously aggravated offence under section 4 … of the Protection from Harassment Act 1997”.

Before we agree to this increase in the penalty, will the Minister enlighten us about what, particularly, a religiously motivated offence might be? Specifically—and I have asked this before in Written Questions and had unsatisfactory Answers from the Government—could such an offence be caused by a Christian preaching the supreme divinity of Christ and therefore denying the supremacy of Muhammad? Would various assembled Muslims be free to regard that as a religiously aggravated offence under this section?

Brexit: EU Nationals’ Right to Remain

Viscount Hailsham Excerpts

Wednesday 11th January 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, the Government have been absolutely clear that we will seek to reach an agreement on this issue at an early stage of negotiations with the EU. I totally dispute the notion of a trade-off, because the EU’s refusal to guarantee the status of UK nationals elsewhere in the EU prior to negotiations shows that the Government have been absolutely right not to give away the guarantee of status for EU citizens in the UK. As the Prime Minister has said, that would have left UK citizens high and dry.

[Viscount Hailsham (Con)]

My Lords, may I remind my honourable friend that for the agriculturalists and horticulturalists in Lincolnshire and adjoining counties access to migrant labour is very important indeed? Without migrant labour it is probable that many of those businesses would not survive.

[Baroness Williams of Trafford]

My Lords, I totally agree with my noble friend—I am proud to be his honourable friend. Of course, this will be part and parcel of what we discuss. The Government totally acknowledge where the skills gaps lie, where temporary labour might be needed, and that will be important.

Policing and Crime Bill

Viscount Hailsham Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Viscount Hailsham (Con)]

The noble Lord ended his remarks by saying that a grave injustice is caused to those when you have publicity of the kind identified, and I entirely agree. It has been very well illustrated by what my noble friends Lord Lamont and Lord Deben said about Lord Bramall and Lord Brittan. I was Lord Brittan’s PPS in the other place and I know how deeply distressing the allegations were. That also applies to Harvey Proctor; the allegations against him were wholly grotesque and must be immensely damaging. So there really is an underlying mischief of a very serious kind. My noble friend Lord Marlesford and the noble Lord, Lord Paddick, are much to be congratulated on bringing forward these amendments.

If I may say to the noble and learned Lord, Lord Morris of Aberavon, my former pair for a short period of time in the other place, he is absolutely right—the problem will not go away. That means that we have an opportunity to address it. It is a continuing problem for this reason: usually the information is disclosed by a police officer, usually for money. That is not going to go away unless we intervene by statute. The truth always is that, if you give power to officials or opportunities to officials, on occasion they will abuse it. The noble Lord, Lord Lester of Herne Hill, rightly asked about the safeguards. Although I look forward very much to my noble friend’s contribution from the Front Bench, I do not think for one moment that there are effective safeguards outside statute.

I turn briefly to the amendment proposed by my noble friend Lord Marlesford, Amendment 182. I agree with one part of it very robustly. His is much more far-reaching than is the amendment proposed by the noble Lord, Lord Paddick, because it applies to all offences—and I think that he is right about that. Allegations of fraud can achieve very high publicity and be immensely damaging, so I have a great deal of sympathy with the scope of Amendment 182. Where I have greater doubt is with two other parts of the amendment. With respect to the accused person, there is no provision for him or her to consent to publicity as there is in the amendment proposed by the noble Lord. Secondly, I am uncomfortable about the concept of the magistrates’ court being the court in which representations as to public interest are to be determined. I am in favour very much of what the noble Lord says with regard to the judge of the Crown Court.

The noble Lord, Lord Pannick, is a much more distinguished lawyer than I am ever going to be, but there are two points that I would make. First, he says that there may be occasions when an accused person will not be charged because witnesses will not come forward, absent publicity. There is truth in that, but then you have to look at the proportionality of the whole. Yes, there may be one or two such cases, but for an awful lot of cases great injustice will be done to people against whom allegations are made that are wholly unfounded. Finally, the noble Lord suggests that the judges in chambers will not be able to assess and determine the relevant arguments and whether there is a public interest in disclosure. There may be some force in that, but I think not much at the end of the day, because judges in chambers and Crown Court judges are pretty experienced about this sort of thing. They will have to consider quite frequently public interest immunity certificates which have very broad quality concerns attached to them. So in applying the principle of proportionality, the argument advanced by the noble Lord, Lord Pannick, is wrong in that respect. I make one rider: I hope that the rules of the court which will doubtless be introduced if the amendment is passed will make provision for the person against whom the allegations are made to have the opportunity to make representations to the Crown Court judge.

With respect to my noble friend Lord Marlesford, I shall not support his amendment, should he seek your Lordships’ opinion—but, unless my noble friend Lady Williams surprises me with her argumentation, I shall support the amendment proposed by the noble Lord, Lord Paddick.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I am glad I arrived in time to hear my noble friend Lord Campbell-Savours praying me in aid of this amendment, because I do indeed support it. That may surprise many people, because I am ardently an exponent of justice for women and keen to see that the system is alert to the ways in which women often are failed by it. I have written about this for all my professional life of 40 years in the courts. I take this position and I have not changed, my noble friend will be happy to know.

At the time, back in 2003, the point that I was making in opposing Lord Ackner’s amendment was that Lord Ackner was taking issue with the fact that women got anonymity so why should not poor men charged with rape get anonymity? He suggested having equality. It was an argument that was, I am afraid, familiar to me from old judges: “You want equality, Ms Kennedy, we will give you equality”. It did not take account of the fact that the lives of women in society are so often different from those of men. With rape, particularly, women often just could not face coming before the courts to testify against the person who had raped and violated them. I do not have to rehearse in this House the whole baggage around rape: we know why women have been handicapped in coming forward and why the statistics are so low. We know the difficulty of dealing with things that happen in private, but we also know the ways in which women’s whole lives would be affected by the sense of dishonour attached to rape, and for many women this is still the case. Many more women are becoming brave and saying they do not need anonymity but it was given to women in the 1970s to try to redress the balance of law’s historical failure. It recognised something that I want to say very slowly to this House: treating as equal those who are not equal does not create equality.

We do justice by looking beyond the courtroom doors and knowing what really goes on in society. For that reason, we introduced anonymity into the system when that flew in the face of principle. We do not want anonymity in our courts. We want people to stand there and accuse, to face their accuser and to hear what the evidence is. We want justice to be open and for the public to hear it. But the decision was made to give anonymity to women to encourage them to come forward when these terrible events had happened to them. Lord Ackner advocated—and he found some friends in the House—that we had equality in 2003 and should treat everybody equally. But if we had equality, we would not still be hearing women arguing for equal pay and about domestic violence and violence towards women.

You cannot give total anonymity to an accused all the way through a trial because we know that there are cases where people come forward at the right point and say, “This happened to me, too”. If the Savile case and others have taught us anything it is precisely that. However, you do not solve one injustice by visiting another injustice on people. That is why I feel very strongly that the police should not disclose names until the point of charging. We have here a rather unpleasant alchemy of the police and media coming together. I have worked on many cases where a tip-off was given by police to the press who were then standing outside the police station to photograph people as they exited. It never comes to a charge, but the accusation has already been made. Why does that happen, you may ask yourself? In the old days it used to be because the police officer had been promised a drink or a case of whisky would be sent round at Christmas from the local newspaper or a more major national one. I am afraid it could take even more unpleasant forms than the drink at Christmas.

I remind the House that not long ago a woman called Rebekah Brooks—then Rebekah Wade—gave evidence to a Select Committee about the amount of money paid by her newspaper to police officers for precisely the kind of information we have been talking about, which blights people’s lives. From Cliff Richard to Paul Gambaccini, a whole set of people have suffered the consequences of this kind of publicity. The strength of this amendment is that it is not saying that the door is closed. Many women are assisted by the fact that other women will ultimately come forward because they hear that a charge has at last been brought against somebody. They are not standing alone and then they have courage. However, you also have to prevent other injustices. That is why you protect people by giving them the cover of anonymity until the point of charging. Then, and only then, should a name be put into the public domain.

How do we deal with police misbehaviour? I know there are noble Lords who do not think the police ever misbehave: they do. Happily, it does not happen as often as many people think but it is too often and police misbehaviour is behind most of this kind of publicity. If the standing order is not working and the principles are not being adhered to, how can you give teeth to preventing police officers doing this? The only way is if they face sacking or prosecution if they are discovered to have interfered with due process. We must have stronger responses to police misbehaviour of this kind.

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[Baroness Howe of Idlicote (CB)]

My Lords, I have added my name to Amendment 185 in the name of the noble Lord, Lord Wigley, for all the reasons he has explained so eloquently, even though pushed to deliver them very quickly. I shall be much briefer.

If someone has been sexually assaulted by a complete stranger and has then reported the details to the police, it is clearly important that when the police then interview potential suspects they do not under any circumstances, whether the potential offender has been charged or not, disclose the identity of the victim to such suspects. In the past, perhaps, this would not have been so vital, but today if the attack has been carried out by a sexual predator, the availability of the internet, Facebook and all the other many ways of identifying where a victim lives will inevitably mean that the attacker can continue to harass their victim via all or any of these means. Indeed, I am sure noble Lords will have read many harrowing stories of just such instances—we have heard one or two of them already—where the named victim has ultimately been forced to leave the area and resettle in a completely different, new part of the country, changing their names too.

The noble Lord’s amendment is vital. I very much hope that the Minister will be able to accept it in its entirety.

[Viscount Hailsham]

My Lords, I am conscious that your Lordships want to vote on Amendment 187, so I shall be brief, but I have to say that this proposal is, to my way of thinking, one of the most unjust that I have heard in your Lordships’ House for some time. It is worth identifying what it says. I shall come to the proviso in a moment, but what it says that somebody who is accused of rape is not to know the name of the accuser—the complainant. For that matter, somebody who is accused of actual bodily harm or grievous bodily harm is not to know the name of the accuser or of the witnesses. I ask rhetorically: how on earth can a defendant or his representatives prepare his case for trial without knowing the name of the accuser or the witnesses? After all, they may not have been there. They may be notorious liars. There may be lots of other reasons to distrust their integrity.

The substantive clause here precludes the police from giving the name of the victim or the witnesses to the accused person. That is curiously reminiscent of the procedure underlying lettres de cachet in pre-revolutionary France, as described in A Tale of Two Cities. Let us look at the proviso, because it needs a bit of probing. The proviso in subsection 1(b) of the proposed new clause is so far as,

“non-disclosure would not impact on … a new trial”.

Who is to judge whether it impacts on a fair trial? I can tell noble Lords from the language of the proposed new clause that it is to be the police or the Crown Prosecution Service. So the police or the Crown Prosecution Service, who are party to the procedure, who are making the allegations, will judge whether it is fair to disclose the identity of the victim or the witness. How can that possibly be fair? What procedure is there in the proposed new clause for the accused person to challenge that determination? There is none at all.

We are told, “Ah, the judge will let it in”, but the judge cannot when there is an absolute prohibition. There is no procedure here whereby the decision of the police officer or the Crown Prosecution Service can be challenged. Probing a little further, what about police statements? I am sure my noble friend knows full well that police statements have to be served on the defendant prior to trial so that they can prepare and understand their case. If the identity of the witness or the victim has to be redacted out of the statements, what possible purpose is there in serving the statements at all? One merely has to identify these things to see that this would be struck down, certainly by the courts. It is a clear contravention of the provisions in the convention now in domestic law in favour of a fair trial.

Incidentally, on proposed new subsection 1(c), regarding the protection of people, bail conditions can do that. There may be a case for strengthening bail conditions but there is absolutely no case for introducing a measure that will do a profound injustice in our courts. I hope my noble friend the Minister will give a robust response to this.

[Lord Carlile of Berriew]

Before the noble Viscount sits down, is the point not that the complainant may say that the person who allegedly assaulted him or her is a stranger but may have an oblique motive for so saying? How is the defendant therefore able to defend himself or herself without being able to know who the accuser is? It is a palpable injustice which was not covered, I regret, by the passionate speech by the noble Lord, Lord Wigley, which omitted that crucial point.

[Viscount Hailsham]

I could not agree more with the noble Lord. I agree with him as I agreed with him on the previous debate. We are dealing here with the possibility of profound injustice and we should guard against it.

[Baroness Cohen of Pimlico (Lab)]

My Lords, my name is also attached to this amendment, but I would not normally have spoken given that the noble Lord, Lord Wigley, and the noble Baroness, Lady Howe, were such distinguished proponents of it. At the moment there is a choice of injustices. Perhaps we should have provided—and I should be glad to provide at Third Reading—a clause saying that a judge may decide whether the name should be disclosed. This is, however, also a modern offence. In the old days it might not have mattered very much if you disclosed only the name of the accuser. These days, the perpetrator has no trouble at all, because of the spread of social media, and these cases are more frequent.

One reads of cases all the time and I want to disentangle this from the issue of rape. It is not entirely about rape. It is about being knifed in the street or pushed under a Tube train by a perfect stranger, as I am sure we have all read about, and being terrified thereafter in case he or she comes and does it again. Therefore, I would be very grateful if the Minister would understand the strength of feeling and the injustice being done. If we can put in a clause at Third Reading offering the possibility of review by a judge if necessary, I would be glad to do so.

--- Later in debate ---

[Baroness Royall of Blaisdon (Lab)]

My Lords, in moving Amendment 187A, I declare an interest as a trustee of Paladin, the National Stalking Advocacy Service. It is four years since a stalking law was introduced, following an amendment that I tabled in this House which was the culmination of terrific work by the independent parliamentary inquiry, whose adviser was the excellent Laura Richards and which included the noble Baronesses, Lady Brinton and Lady Howe of Idlicote. It was strongly supported by colleagues in the House of Commons, notably Yvette Cooper and Stella Creasy. I pay tribute to the Government for the progress made since 2012, the introduction of the offence of coercive control and last week’s announcement of stalking orders.

Stalking destroys lives. Some 40% of the victims of domestic homicide have been stalked, including Jane Clough and Holli Gazzard, and the punishment must fit the crime. When I tabled the original amendment, it was always the intention that the maximum sentence be 10 years. However, due to the two tiers in the Protection from Harassment Act, the higher test mirrored Section 4 harassment and became five years by default. Experience now tells us that this is not enough.

My amendment mirrors a 10-minute rule Bill introduced by Alex Chalk, the Conservative MP for Cheltenham, and supported by MPs from all parties, including Richard Graham, the MP for Gloucester, whose constituent, Dr Eleanor Aston, was stalked for eight years by a former patient, Raymond Knight. When he was sentenced to five years—the maximum sentence—the judge stated that he would like to have given Knight a longer sentence as he was a serious risk to Dr Aston. This case is not unique; I could cite numerous other examples, including Kristine Carlson and Katie Price. Extending the maximum penalty would set the tone, allow for greater flexibility and make it clear that stalking is a serious offence. An increased maximum sentence is necessary for the most serious cases, particularly where there is repeat offending. At present a defendant who pleads guilty to this most serious offence, even if it is a repeat offence against the same victim, will serve a maximum of 20 months. This is insufficient to protect the victim.

Sadly, too few cases still result in a stalking charge, and, when they do, the sentencing does not reflect the serious nature of the crime. This was highlighted as a cause for concern when we were meeting Home Office lawyers to discuss the drafting of the stalking legislation in 2012 and given the proposed maximum sentence of five years. Training is important. So, too, are sentencing guidelines. The maximum penalty should reflect the serious impact that this psychological crime has on the victim.

Stalking is a long-term pattern of behaviour. It is persistent and intrusive, and it engenders fear, alarm or distress. It results in long-term psychological harm and can escalate to violence and murder. Stalking is about fixation and obsession. It is clear that when people fixate and stalk, they are psychologically unstable. A significant minority are psychotic, and some may suffer from undiagnosed personality disorders. Currently, stalkers are not routinely assessed, and they should be. More robust sentences would allow for a robust mental health assessment which informs diagnosis, treatment and management.

The Minster may well say that the Sentencing Council is undertaking a review and that it would be precipitate to pre-empt that review. The Sentencing Council reviews sentences within the framework set by Parliament, so it is for us to act and then for the Sentencing Council to build its guideline around the maximum tariff.

Of course, it is true that, alongside the stalking, there may be other offences—for example, assault or arson—that can be charged. But in a significant number of cases, stalking is the only offence, a very grave offence, which can lead to the victim being a prisoner in their own home, developing post-traumatic stress disorder, losing their job, losing their relationship, losing their mental health and ultimately losing their life. It is a serious offence and must be treated as such.

Paladin’s research shows that victims feel unsafe due to short sentences. Preventive orders do not lead victims to feel safe because it is the very nature of the stalking offence that means such boundaries are prone to being breached. In the most serious cases, the only time a victim truly receives any respite is when his or her stalker is behind bars. Victims continue to live in fear and are terrorised and terrified when the stalker comes out. It is clear that short sentences do not allow for any form of diagnosis, treatment or management, so the behaviour continues in a revolving-door fashion. This is costly to victims and to the criminal justice system.

It is important to highlight the fact that stalking occurs over an extended period of time. Often, stalkers are prosecuted only for breaching restraining orders. The maximum sentence for criminal damage, burglary and offence against property is 10 years. These offences are acute and one-offs. Allowing judges greater flexibility on sentences will acknowledge the repetitive nature of stalking, which can span multiple years, offences and breaches.

Some victims have felt helpless due to the long-term, insidious and persistent nature of this crime—as in the case of Helen Pearson, who was almost killed by Joe Willis and attempted suicide twice. The escalation to murder should be clearly understood. These cases are called “murders in slow motion” for a reason, and we have an opportunity to intervene earlier and prevent them. It is one of the few crimes where early intervention can prevent serious psychological damage, violence and murder. That is precisely why we need to increase the maximum sentence.

My amendment would give judges the greater flexibility they require in sentencing to allow the sentence to fit the crime and thus better protect the victim whose life is being torn apart. I beg to move.

[Viscount Hailsham]

My Lords, I very much hope that your Lordships do not support this amendment. My reasons are both general and particular. As to my general reason, I am very cautious about any inflation in sentencing. Our prisons are already grossly overcrowded. When I was Prisons Minister at the back end of the 1980s, we had a prison population of some 44,000. We now have a prison population of just short of 85,000, and that makes for gross overcrowding. Until very recently, I was on the monitoring board of a local prison. As a member of the Bar, I go to prisons, and the facilities in prisons are overstretched almost beyond imagining. In this respect, the POA is right. I am very anxious that we should not do anything that tends to make courts increase the overall level of sentences. In the past five years, the average sentence has increased from 12.3 months to 16.4 months, and conditions in prisons are dire.

That takes me to the second point, and I shall be very brief. Five years—the existing maximum—is a long sentence, even when one takes into account the fact that the offender will not serve the whole of it. Being shut up in custodial circumstances in most of our prisons is a deeply unpleasant experience. If the offender is rational, then five years is a perfectly good deterrent. If the offender is not rational, then increasing the sentence will make no difference whatever to his conduct. All we are doing is to drive up the overall level of sentences, and that is thoroughly undesirable.

--- Later in debate ---

[Viscount Hailsham]

My Lords, I shall be very brief. I have no objection to my noble friend answering the questions posed by the noble Lord; it is obviously right that she should. My objection lies to proposed new subsection (3), because I do not think that the existing law needs any change. If one looks at the primary legislation, one sees that the ability of defence counsel to ask questions or call evidence is hedged about by judicial restriction and can be exercised only relatively rarely. I have been in court many times when this has happened, and there is no sense that the legislation is being abused, that evidence is being adduced unnecessarily or that cross-examination is being done wrongly.

At the end of the day, I believe that the law is right as it stands. Although I have no objection to a review and no objection to the questions put by the noble Lord, I do not think we need to change the law—and I am therefore bound to say that subsection (3) of the proposed new clause poses problems as far as I am concerned.

[Lord Hope of Craighead]

My Lords, I will add just a footnote to what the noble Viscount said. Some years ago, there was a challenge to Section 41 of the 1999 Act on the ground that it was incompatible with the convention right to a fair trial. I sat upstairs in a committee room as a Law Lord with the Appellate Committee. We were very careful to restrict the ability of counsel to explore these matters, as far as we possibly could consistent with the right to a fair trial. I am glad to hear that, from the noble Viscount’s experience, the system is working very well. On the other hand, when we were framing our restrictive view as to how the section should be applied, we were looking to the future; we did not have the benefit of experience. Like the noble Viscount, I have no objection to a review, which I suppose might serve some useful purpose by informing everyone as to whether the system is really working as the Law Lords expected it should.

Brexit: Immigration Policy

Viscount Hailsham Excerpts

Wednesday 30th November 2016 Lords Chamber

[Baroness Williams of Trafford]

I thank the noble Lord for that. I have read the report and the recommendations, and I welcome the report. The Government have been clear that as we conduct our negotiations it must be a priority to regain more control of the numbers of people who come here from Europe. It would not be right, therefore, for us to give a running commentary on negotiations.

[Viscount Hailsham (Con)]

My Lords, in the context of immigration, may I remind my noble friend of the needs of the agricultural and horticultural industries in constituencies such as my former one? They are dependent on labour from abroad, most notably from eastern Europe, and if they are denied that resource they will face very considerable problems.

[Baroness Williams of Trafford]

I acknowledge what my noble friend says and I hope it will reassure him that we are talking to all sectors, not just the agricultural sector but sectors such as social care, because these things are very important as we move forward.

Policing and Crime Bill

Viscount Hailsham Excerpts

Report: 1st sitting: House of Lords
Wednesday 30th November 2016 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, this amendment is also in the names of the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer of Thoroton. The second part of the Leveson inquiry was promised by the former Prime Minister in order to investigate allegations of collusion—above all, corrupt collusion—between the press and the police. An undertaking was made to victims of press and police corruption, including those who had lost loved ones at Hillsborough and were then smeared, among many other victims.

The noble Lord, Lord Strathclyde, when he was Leader of the House, read out the former Prime Minister’s Statement on this matter to this House on 29 November 2012—almost exactly four years ago. He said:

“When I set up this inquiry, I also said there would be a second part, to investigate wrongdoing in the press and the police, including the conduct of the first police investigation. This second stage cannot go ahead until the current criminal proceedings have concluded, but we remain committed to the inquiry as it was first established”.—[Official Report, 29/11/12; col. 338.]

But there has been a shift, and the Government are apparently no longer so committed to Leveson part 2 happening once the criminal proceedings are finished. The noble Baroness, Lady Neville-Rolfe, answered a Written Question on Leveson 2 on 15 June this year. She wrote:

“Criminal proceedings connected to the subject matter of the Leveson inquiry, including the appeals process, have not yet completed. We have always been clear that these cases must conclude before we consider part 2 of the inquiry”.

So now it is just to be considered, not undertaken.

This is not what was promised to the Hillsborough families or to other victims of press and police collusion or corruption. In the light of the conviction of Mazher Mahmood, the findings of the Hillsborough Independent Panel, the finding that News of the World executives lied to a Select Committee and the apparent continuation of what we might, kindly, call business as usual at some larger newspaper corporations, I do not think we can say that we are sure that the need for Leveson 2 has diminished. The Hillsborough Family Support Group worked with the shadow Home Secretary, Mr Andy Burnham, to table an amendment to the Bill on Report in the Commons which would have recommitted the Government to going through with Leveson 2. It is that amendment that I have agreed to move today.

The Government could have begun proceedings for Leveson 2 weeks ago, when the relevant trials had finished. Doing so would help draw a line under Hillsborough, Orgreave, Daniel Morgan and countless other scandals involving both the police and the press.

I do not think this is a trivial matter. A commitment was made to Leveson 2; the victims want it; the public want it; and, for democracy to function well, we all need it. The Government should get on with what they promised in 2011 and 2012 and begin Leveson 2 now. I beg to move.

[Viscount Hailsham (Con)]

My Lords, despite the eminence of the noble Baroness, I hope the Government will be robust in resisting the amendment. I have one general principle about it. Over a long time in Parliament, I have been involved directly and indirectly with a very large number of inquiries; I have participated in some. There is a proportionality rule: is the likely outcome of the inquiry and the chances of its recommendations being implemented sufficient to justify the cost of setting it up and the bureaucracy involved? In the majority of cases in which I have been involved, the answer to that question is no, and I strongly suspect that this time the answer is no again.

All of us who have been in public life know full well that there has always been collusion between the police and journalists—certainly ever since I was first in the House of Commons, nearly 40 years ago. It is lamentable, but it has been the case. I doubt that anything else that will be turned up in this inquiry would justify the initial cost.

I have one further point. It is absolutely right that police officers who take money for supplying confidential information—that is, are bribed—should be the subject of criminal procedure. But that is also, in the generality of cases, true of the journalists. What we are dealing with when a journalist pays a police officer is a criminal conspiracy to do an unlawful thing.

Occasionally, there will be instances where the public interest is genuinely involved. But one thing I have noted in recent months and years is the unwillingness of juries to convict journalists for doing this, because quite specious claims of public interest are always invoked. In general, it is public curiosity, not interest, which justifies the process. I very much doubt that we will get juries to see the rightness of what I have been saying, so there may have to be another way forward.

I very much hope that the press industry—editors in particular—recognises the impropriety in the generality of cases of journalists paying police officers for information. The fact that juries will not convict for these purposes is neither here nor there. I would hope that senior journalists would incorporate into the contracts of employment with their journalists a prohibition on doing what I have just described, and that editors and proprietors would be willing to enforce that prohibition.

Reverting to my first point, I am sorry, but I cannot support the noble Baroness’s very eloquent submission to your Lordships’ House.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, Amendment 106, which is tabled in my name and that of my noble friend Lord Rosser, would delete the provision that would allow police civilian staff and volunteers to use CS spray or PAVA spray. We had an interesting, if somewhat confusing, debate on this subject in Committee. I think this is a step too far and that the public will be rightly concerned about who is authorised to use these incapacitating sprays.

PCSOs have specific duties and have performed them very well. I pay tribute to them and the work they do. This provision enables civilian staff and volunteers to be designated as PCSOs to use these weapons, which can kill and have unfortunately done so. Equipping volunteers and staff with such weapons, giving them some limited training and authorising them to use those weapons against members of the public is a huge leap and one we need to be very careful about. I do not believe that the Government have made a convincing case about why it is necessary to take this route.

We have heard very little in these debates about special constables, who have the powers of police officers and undertake extensive training. Surely greater recruitment and use of special constables would be a better option if the Government want more officers on the street supporting the full-time police service. I will listen carefully to the debate and, in particular, to the response from the Minister. I beg to move.

[Viscount Hailsham]

I propose to be brief. This amendment, as has been very fairly pointed out by the noble Lord, removes the substance of new subsection (9B) of the Firearms Act. It is therefore relevant to look at the new subsection to see the extent to which it is acceptable. I am content with one bit of it, welcome another bit of it and remain very concerned about a third bit of it, and I shall deal with each rather briefly.

--- Later in debate ---

[Lord Hope of Craighead]

Before the noble Viscount sits down, can he be a bit more specific about what he has in mind as a self-defence device? If you have a weapon which is capable of inflicting injury, it all depends on the mind of the user. I understand the point he is making, but I am not quite sure that one could have such a category.

[Viscount Hailsham]

I think one can. I think a Taser is a self-defence device. I know there is a dispute about that and that many take the view that it is unduly dangerous, but I take the view that it is self-defence. I take the view that pepper spray and things of that kind are self-defence. I take the view that a revolver is not. It is that sort of distinction.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, these amendments return us to an issue that was debated at length in both the other place and in Committee in this House, namely whether it is ever right for designated members of police staff, or the new category of designated volunteers, to carry CS or PAVA sprays for defensive purposes—I stress the point that this is for defensive purposes.

I should point out to the House that, although most of our debates have been about whether it is right for volunteers to carry defensive sprays, Amendment 106 as drafted would also prevent chief officers equipping their existing paid staff, such as PCSOs, with such sprays. I assume this is not intention of the noble Lord, Lord Kennedy, but it would be helpful if he could clarify this when winding up.

When we debated this issue in Committee, a number of noble Lords expressed the view that the use of force is somehow incompatible with the PCSO role, and even more so for volunteers. For example, the noble Lord, Lord Paddick, said that the appropriate route for an individual who wishes,

“to volunteer to get involved in the use of force in the exercise of police powers”,

is,

“to become a special constable”.—[Official Report, 26/10/16; col. 267.]

I think he said that again today. However, it is important to put on record that, given the long-standing tradition of policing by consent, I would hope that no one who wishes to help with the policing of their community, as a police officer or a member of staff, whether paid or as a volunteer, does so with a view to using force against their fellow citizens. There are of course myriad roles which police officers, staff and volunteers perform regularly that do not involve the use of force.

Indeed, as we have discussed, the primary role of a PCSO across England and Wales is to engage with members of the public and to carry out low-level interventions such as dealing with anti-social behaviour. However, as was discussed in the House of Commons earlier this month, it is a sad fact of life that both police officers and PCSOs are assaulted and injured on duty. For example, in 2015-16, 270 assaults were reported by PCSOs in England and Wales, and those figures do not include the British Transport Police. It should be noted that this figure includes only assaults that officers report to their health and safety or human resource teams. In some cases, officers will choose not to report cases, as it is usually not compulsory to do so. Therefore, in reality, this figure is likely to be much higher.

We must therefore ensure that chief police officers are able to use their operational experience to make judgments as to the necessary level of defensive equipment and self-defence training that they make available to their officers and PCSOs. The only other option for chief police officers would be to withdraw their PCSOs from areas where there was a threat to their safety, potentially making disorder more likely if members of the community were unable to engage with a familiar face in uniform.

The situation is in essence no different from that of special constables, who are themselves volunteers. They have all the powers of a police officer, and a significant number are trained in the use of defensive sprays. I also point out that a small proportion of specials are trained in the use of public order tactics, so the use of force by appropriately trained police volunteers is not a new idea.

The noble Lord, Lord Paddick, has tabled Amendment 107, which would remove Clause 38 from the Bill. The change to Section 54 of the Firearms Act 1968 made by Clause 38(2) is consequential on the provisions in Clause 37 enabling designated volunteers to be given access to defensive sprays. It therefore follows that if Amendment 106 were agreed to, Clause 38(2) would be unnecessary. However, Clause 38(3) deals with a separate point, making it explicit that special constables are members of a police force for the purposes of the Firearms Act 1968 and therefore do not require a certificate or authorisation under the 1968 Act when equipped with a defensive spray. Accordingly, the amendment goes wider than I believe the noble Lord intends.

A question was asked about the most appropriate route for an individual who wishes to perform front-line policing to join the specials. I think I have already addressed that point but I add that there might be reasons why an individual who wants to volunteer to help to make his or her community safer chooses not to join the specials. These reforms will enable those who wish to help to keep their communities safe to do so even where they are unable to meet the requirements for being a special—the time commitment, for example, or they may be in an occupation where they are prevented from being a special, such as being a Border Force officer, but still have skills or experience that could be of value.

My noble friend Lord Hailsham asked about the order-making power in Clause 37(6) enabling the Home Secretary to make regulations that would allow police staff and volunteers to use a firearm. The power is primarily intended as a form of future-proofing. Should, for example, a new form of defensive spray that uses substances other than CS come on to the market—

[Viscount Hailsham]

I do not want to press my noble friend too hard on this as she may want to indulge in correspondence on the matter. However, the Explanatory Notes state, with reference to sub-paragraphs (b) and (c):

“This enables the issue of appropriate self-defence devices in future, once such a device has been tested and authorised”.

What is there in the Bill that confines the weapon to be authorised to a self-defensive device? It is open-ended, so it includes offensive weapons.

--- Later in debate ---

The effect of child sexual exploitation can have a terrible impact on young people in later life, and therapy or other help gives them a better chance to rebuild their lives. I urge the Government to consider this very modest amendment and accept its recommendations. I beg to move.

[Viscount Hailsham]

My Lords, I hope we do not go down this road. It seems a thoroughly bad idea. Of course there is a good case for voluntary provision. There may be many cases where assessment is highly desirable but this is coercive. It imposes an obligation on the police officer to do what is set out in the amendment.

[Baroness Walmsley]

I would like to make it clear that it would be only with the consent of the child, so it would be consensual as far as they were concerned.

[Viscount Hailsham]

That is not what it says in the amendment. Had it been so, I would not object, but we are talking about a piece of legislation, and it is coercive. If the police officer has to do it, presumably the child has to co-operate. You are not dealing just with young children, either. You are dealing with people up to the age of 18 and I would have thought that there were a substantial number of cases where the child would not want to be assessed and would find it pretty traumatic if he or she was. While there may be a strong case for putting in place a voluntary system for doing it, there is absolutely no case for making it coercive. I really hope that the House will not think of pursuing such a policy.

[Baroness Howe of Idlicote]

My Lords, I think I will leave aside the contribution of the noble Viscount, Lord Hailsham. I do not really agree with what he said. My name is on this amendment and I support it because it would create a clear and explicit referral pathway for child victims of a sexual offence or other forms of child abuse for an assessment of their mental health needs.

As we have heard, the amendment would deliver on the Government’s own commitment in Future in Mind and work to put in place policies that go a step towards creating parity between physical and mental health. The Government say that they want to develop:

“A better offer for the most vulnerable children and young people”,

including by ensuring that,

“those who have been sexually abused and/or exploited receive a comprehensive assessment and referral to the services that they need, including specialist mental health services”.

The amendment would deliver on that ambition.

It is important to recognise that the Government have made welcome steps in this area, in particular through their investment of £1.4 billion over the course of this Parliament in children’s and young people’s mental health services. However, there is evidence to show that this is not yet reaching the most vulnerable. According to research from the Education Policy Institute, in the first year of funding, of the expected £250 million only £143 million was released—and of that, only £75 million was distributed to clinical commissioning groups. For 2016-17, £119 million has been allocated to clinical commissioning groups—but this has not been ring-fenced, risking that it will be spent on other priorities.

It is clear from the evidence available and what we have heard today that these young people are at extremely high risk of developing a mental health condition. Lifelong difficulties can result in drug and alcohol abuse, mental ill-health, homelessness, gang affiliation and/or disability if the underlying trauma of their experiences is not met with swift and appropriate intervention. Research has found that up to 90% of children who have experienced abuse will develop a mental illness by the time they are 18. In the spirit of parity between physical and mental health to which we all aspire, in a comparable physical situation people would be screened and have regular check-ups, yet we do not offer the most vulnerable children the same opportunity to receive the help they so vitally need.

National policy is increasingly focused on the social determinants of long-term health. Evidence has shown that adverse childhood experiences are a key risk factor for poor outcomes such as worse health, coming into contact with the criminal justice system and worse employment and educational outcomes over the life course. Children who are victims of a sexual offence are often left without support for their mental health difficulties, which are likely to develop into more entrenched mental health conditions later in life, because they do not meet the thresholds for clinical interventions or because a suitably trained professional does not properly assess their mental health needs.

This amendment would provide national consistency, as we know that the situation across the country is inconsistent and young people are not always getting the holistic assessment they need to meet their needs. Thresholds for mental health clinical interventions are inconsistent across the country and referral routes into CAMHS are varied, with some areas not allowing the local voluntary sector to refer directly. Some sexual assault referral centres refer children for mental health support, but others do not.

In her response in Committee, the Minister mentioned the commissioning framework for adult and paediatric sexual assault referral centre—SARC—services, published in August 2015. However, case-tracking evidence from the Havens in London found that, of the 24 children under 13 who were reviewed, only three were referred to CAMHS and that, of the 56 young people aged 13 to 17 who had their cases reviewed as part of the study, only five were referred. It was acknowledged in the same report:

“Few children are referred to CAMHS from the Havens, most likely as interventions are generally at the forensic examination stage and it is difficult to determine longer term emotional support needs at this … stage”.

It is therefore necessary to ensure that other agencies have a duty to refer for a mental health assessment, in order to guarantee that a young person’s holistic mental health needs are assessed after their traumatic experience.

Alongside providing national consistency, this amendment would introduce a referral for an assessment and enable better understanding of the level of support that needs to be provided both by CAMHS and outside CAMHS. This will lead not only to better responses and referral routes for young people but a greater understanding to inform commissioning at local level, so I hope that the Minister will be able to accept this amendment.

[Noble Lords]

Viscount Hailsham.

[Viscount Hailsham]

Do not worry—I answer to any old name.

[Earl Attlee]

I meant the noble Viscount. I absolutely accept the point made by my noble friend. There is no flexibility in the amendment. After a fleeting grope of a 17 year-old at a Tube station, someone would still be caught by this in totally inappropriate circumstances. So, although I accept the need in serious cases, I am afraid that I cannot advise my noble friend the Minister to accept this amendment because of the lack of flexibility.

[Baroness Williams of Trafford]

I applaud the noble Baroness, Lady Walmsley, on her intention to ensure that children who have been abused have the proper provision following that abuse, mainly because they are often traumatised by their experiences. I share her desire to ensure that such children receive the support they need, including for their mental and physical health, but I must reiterate my strong belief that the overriding determinant of referral for health services must be clinical need.

[Viscount Hailsham]

With no coercion.

[Baroness Williams of Trafford]

With no coercion, as the noble Viscount says. The important thing is that all children and young people, not just those who are victims of sexual offences, get the right care at the right time, based on their needs—not on a non-clinician’s view of their potential needs, based on their experiences. Furthermore, the amendment makes no reference to obtaining consent.

I think that my noble friend Lord Hailsham referred to that. Individuals, including children or their parents or carers, as appropriate, need to consent to receive treatment. Where a person indicates that they would like to avail themselves of any referral, consent can be sought for the relevant personal details to be passed to the health provider. This is the proper course of action, rather than automatically passing personal details and potentially sensitive information about sexual abuse to a third party, even when that third party is a healthcare provider. We know there is more that can be done to meet the health needs of children and we are taking concrete steps to do that.

The Government wholeheartedly agree that mental health services should be available to children and young people who need them. We are investing significant funding to that end—but, as I have indicated, it would be wholly inappropriate for referrals to mental health services to be the responsibility of police officers rather than appropriately trained practitioners. I stand ready to meet the noble Baroness and other noble Lords who have put their name to this amendment to discuss these issues further, but I hope that at this stage the noble Baroness will agree to withdraw her amendment.

--- Later in debate ---

[Baroness Walmsley]

My Lords, this is another thing on which I did not succeed in convincing the Government in Committee, but I listened very carefully to what the Government said and have made some changes.

I had been seeking to ban the use of Tasers by police in psychiatric wards, but since the Government feel that their use may sometimes be necessary, my amendment asks the Government to specify very clearly in regulations the exceptional circumstances under which Tasers should be used. Bearing in mind that the use of such a weapon is a very serious issue and has sometimes led to the death of the person who has been tasered, my amendment asks that any use of such a weapon in a psychiatric ward should automatically be referred to the Independent Police Complaints Commission as a matter of course in just the same way as a death in custody is reported and investigated. By that means we would find out in considerable detail what led to such a severe intervention, and that information can be helpful to the police and mental health providers in improving the way they deal with people in great distress who may well have turned to some kind of violence or aggression. The hour is late, and that is all I wish to say. I beg to move.

[Viscount Hailsham]

My Lords, I agree with the noble Baroness that the hour is late, and therefore I shall be brief. I was here for the debate in Committee on this subject and I was wholly persuaded by the Minister about the undesirability of this amendment. I know full well that Tasers can be very injurious and I know that they are dangerous, but I also know from considerable personal experience that people in psychiatric wards can be extremely dangerous, volatile and violent.

I speak as somebody who was for some years Minister for the special hospitals. There were three mental hospitals in my constituency. I was the Minister for Police for a time and, relatively recently, I was on the monitoring board of a local prison. I know they are different, but in prisons you see many people who ought to be in psychiatric hospitals. The truth is that sometimes there is no choice: people get possession of a weapon and threaten their nurses or pose a very real threat to the other residents on the ward. What is a police officer to do if summoned and faced with a person with a knife? The truth is that in exceptional cases—which I will come to in a moment—a Taser may be necessary. I am certainly not going to go down the road of prohibiting that by statute.

What does “exceptional circumstances” actually mean? I can tell the noble Baroness: when there is a reasonably founded belief that it is necessary in self-defence or in defence of a third party. If I was the Secretary of State and put that into a statutory instrument, so what? Ultimately, it has to be decided by the court. If you look at this amendment and reflect on its consequences for one moment, the police officer is guilty of assault unless he can bring forward the defence. But who is responsible for bringing forward the defence? Does he have to prove that his acts fall within the exceptional circumstances or does the prosecution have to negate their existence? I suspect the latter, but it is extremely difficult for a police officer in those circumstances. It is a legal minefield and good news for lawyers—which is not something I am advocating in this case. It is a thoroughly bad amendment and I hope we hear no more of it.

[Earl Attlee]

My Lords, I will briefly support the noble Viscount. I would not want to put a police officer in the very difficult position of having to decide whether to get involved in close engagement with someone who is very dangerous or use a conventional firearm, with all the difficulties that that entails.