Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I begin by adding my fulsome welcome and congratulations to the noble Lord, Lord Sandhurst. His expertise and lengthy public service speak for themselves. I hope he will forgive me for saying that he is one of the kindest lawyers I have met, at a time when kindness is perhaps in short supply in public discourse. I am sure that he will be a huge asset, not just to the Benches opposite but to your Lordships’ House.

This Christmas tree Bill, with significant ambitions and implications for the rule of law, was railroaded through the other place with unseemly speed. So I hope that, with the breadth of expertise in your Lordships’ House, we will give each of its clauses an extremely anxious scrutiny in the weeks and months ahead. I am completely with the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett on the need to deal with indefinite detention, and with so many other persuasive arguments that have been made around the Chamber. However, I shall use my too-short time today to touch briefly, perhaps predictably, on Parts 3 and 4, which, in my view and that of so many others, violate fundamental rights and freedoms, and threaten our democracy itself.

A hallmark of many authoritarian Governments is the perverse contrast between a light and cosy touch in relation to the activities of the super-wealthy and powerful in society on the one hand and a clampdown on non-violent—I repeat, non-violent—dissent and cultural difference on the other. As the right honourable Member of Parliament for Maidenhead said at Second Reading in the other place:

“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”


She went on to say she would

“urge the Government to consider carefully the need to walk a fine line between being popular and populist. Our freedoms depend on it.”—[Official Report, Commons, 15/3/21; col. 78.]

Goodness me—if only we could vaccinate Home Secretaries before they took office rather than waiting for an immunity from authoritarian instincts that may come afterwards.

The parts of the Bill to which the former Prime Minister was referring have not been significantly amended since those comments. I suggest, along with others from whom we have already heard, that Parts 3 and 4 do not walk her suggested fine line against authoritarian populism; they scrub that line virtually out of existence. Non-violent—I repeat, non-violent, which is what Part 3 is about—on-street assembly and dissent is as much a fundamental freedom, including under the convention on human rights, as voting in fair and regular elections. Indeed, the franchise was not won for most ordinary people in this country, less than a hundred years ago, without a great deal of just the kind of protest that would be criminalised by this Bill, which will be added to an already crowded statute book of broad public order powers ripe for use and misuse by accident or design against noisy, impactful or disruptive protest—as defined by the Home Secretary, for many years to come. Goodness me, will the Home Secretary not become, perhaps not Henry VIII but Henrietta I?

While some noble Lords have expressed their concerns about counterproductive protest tactics, I have concerns about our counterproductive responses, at a time when the BBC has just this afternoon broken the story of a report that demonstrates that an overwhelming majority of young people are hugely concerned about climate catastrophe, to the point where it is affecting their mental health.

While Part 3 jeopardises the freedoms of everyone, Part 4 deliberately and maliciously targets one of the smallest, most vulnerable and even demonised minorities in our nations. I congratulate my noble friend Lady Whitaker for her tour de force today, but also for so many years of advocacy in defence of that community. To be clear, Part 4 is reminiscent to me of the infamous treatment of the east African Asians, who were rendered second-class citizens by euphemistic legislation—in that case, the Commonwealth Immigrants Act 1962— which was none the less obviously focused on them. It criminalises the Travelling way of life and creates a crime of “intending to reside” on land without consent when, as we have heard, there is inadequate land provision for these communities and already plenty of—and too much—civil and criminal law used against them.

I hope noble Lords will forgive me but, in my humble opinion, it is just as racist to target the nomadic lifestyle as it would be to single out the special food, dress, language or prayers or any other group. These illiberal provisions, in particular, violate fundamental rights and freedoms and pour lighter fuel on the so-called culture wars. I look to my noble friends, noble and learned friends, other friends, and noble Lords across the House to demonstrate the principle and courage required to defeat them—otherwise, I do not know what we are for.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part one & Committee stage
Monday 25th October 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I apologise for not having taken part in the Second Reading debate, when I was unavoidably abroad for professional reasons, or in the first Committee day, when unfortunately I was recovering from coronavirus—an experience I would not recommend to any of your Lordships given my experience of it. I rise to speak having very much enjoyed the speech by my noble friend Lord Patel, because I thought he introduced an element of balance that had not quite reached the debate in the earlier moments, eloquent as the introduction from the noble Baroness, Lady Brinton, was.

I will cite two pieces of my own experience as evidence. I spent 10 years as a lay member of the General Medical Council and, during those 10 years, sat successively on the health committee and the conduct committee. The health committee is a form of conduct committee, but with an obvious emphasis, as its name indicates. We spent a great deal of our time discussing whether doctors can be fully relied upon at all times, and in particular at critical moments, to understand the limits of the duty of confidentiality. Because it is not an absolute duty; there is a balance between the private rights of the patient and the general duty of the doctor not to disclose information, and the public duty of the doctor to disclose information if there is, for example, serious danger of violence to the public. I fear that more work will be needed on the amendments being proposed at the moment if that balance is to be sustained.

My second piece of evidence relates to an inquiry I conducted in 2012 for the then Secretary of State for Education, which related to something called the Edlington case. The brief story was that two small and neglected boys, who were fractionally over the age of criminal responsibility, nearly killed another child in a wood. Fortunately, that child and their companion survived—one of them only just. In my inquiry, I looked at the sharing of information by a host of organisations—schools, general practitioners, social workers and so on. It was a clear conclusion of my report that, if key information had been shared, the child who nearly died would not have been assaulted, the two very unfortunate little brothers who committed the assault would not have spent the succeeding years of their lives in a custodial institution and the schools would have been able to create a situation in which the dreadful problems for everybody concerned did not arise. One of the key issues in that case was that the general practitioners did not fully understand the balance between their duty to the public and the rights of their patient—and near-disaster ensued.

To noble Lords moving these amendments and to the Minister, who I know listens to these debates extremely carefully, I say that this is not the time for people to take up closed positions on these matters. There is a lot of work to be done. I think my noble friend Lord Patel probably agrees with this, but I speak with great trepidation, because right in front of me are two of the most distinguished doctors in the whole country. We must ensure that, where it is necessary as a public duty, they and others need to be consulted to ensure that the balance is right and is therefore not the subject of the controversy we have been hearing about already this afternoon.

[Baroness Chakrabarti (Lab)]

My Lords, I do not disagree with the noble Lord, Lord Carlile, but I none the less think that the noble Baroness, Lady Brinton, and her colleagues are on to something. There is no question but that the noble Lord, Lord Carlile, is right that, under common law, doctor-patient confidentiality is not and has never been absolute. The question is when it is trumped by other considerations, and who decides.

It is always dangerous to suspect what the Minister will say in her eventual reply, but I suspect that she will say reassuring things, and her colleagues will have given her reassuring things to say, about the intention. I am sure that the intention is not for the wholesale trumping of doctor-patient confidentiality. There is no public interest in that and the Government would not want people to take that as the case, because it would be completely counterproductive not just to the effective functioning of public health but to law and order. To give an obvious example, if everyone involved in knife crime feels that there will be no confidentiality whatever in the emergency room or elsewhere, one runs the danger of people not going to get the vital help and emergency care that they need. I know that the Minister will understand that.

Going back to the detail—as this is Committee—when should there be a trumping and who decides? That is a worthwhile, detailed conversation to be explored between organisations such as the General Medical Council and the Minister and her team. Because, while it may not be the Government’s intention to trump common-law principles of ethics and confidentiality en masse, we have to remember of course that statute displaces the common law. If the statute is unclear and people think or perceive that the common law has been trumped and that the decision has been taken completely out of the hands of an individual practitioner on the advice of ethical bodies or ultimately taken out of the hands of a judge and that the principles of confidentially have been totally trumped, we have a problem—and that means the Government have a problem as well.

So I hope that, when the Minister eventually replies to this debate, she will not reject these concerns out of hand and will take on board the possibility of a bit more detailed discussion about when the duties to collaborate and so on should trump confidentiality, when not and, crucially, who is to decide. For my part, I would favour practitioners, properly advised, perhaps by more and further guidance from their professional bodies, and, if necessary in individual cases, by the order of a judge, possibly sought on an ex parte basis, as opposed to anything too wholesale or administrative. That is just my suggestion. I am sure that the Minister and her team will be able to come back with something that meets the concerns of the noble Baroness, Lady Brinton, and her colleagues before the next scrutiny stage of the Bill.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am very minded to support this series of amendments. As the noble Baroness, Lady Brinton, and the noble Lord, Lord Patel, explained, doctor-patient confidentiality is far more than a common-law obligation. It is an ethical duty in a relationship of trust. Will the Minister consider whether the public understand what this aspect of the Bill compromises of that confidentiality?

Our doctors know a lot about us: the most intimate physical details, sometimes our psychological weaknesses, sometimes our darkest fears about life and death matters. While it has been a long time since we offered uncritical deference to our doctors, as patients and at our most vulnerable we are not equal partners and we need to trust that relationship, despite the power imbalance. So it is understandable that the General Medical Council and the British Medical Association are rightly worried that the Bill will smash the principle of confidentiality to bits.

The issue of confidentiality and trust will appear later in Committee in some other amendments that I shall speak to later, but my main question here is: why is this part of the Bill necessary? I genuinely do not understand. People involved in medical practice understand that, while confidentiality is an important legal and ethical duty, it is not an absolute. As the noble Lord, Lord Carlile, explained, it may be that some doctors get the balance wrong, but doctors are already expected to share confidential information if it is in the public interest, and that includes serious crime. However, this is presently understood as the exception, not the rule. At the moment, doctors need to consider the specific circumstances of what to share to satisfy the intended purpose and when to share it, and they have to weigh up the benefits and harms of disclosure.

Doctors are asked and trusted to exercise their professional judgment and to strike a balance between individual and community rights. I, for one, want to continue to trust medical personnel to make such judgments in good faith. Is the Minister saying that the Government do not trust them on this? It feels like an attack on professional discretion that will undermine doctors in the eyes of the public. At the moment, with the medical profession being under so much pressure and scrutiny—anger over no face-to-face GP appointments, tragic backlogs in hospital treatments—there is already tension between the public and the medical profession. If it comes out that when you go to the doctor, the sacred bond of confidentiality could in fact be expected to be broken, that will be very damaging for no good purpose.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate; it has been incredibly informative. On the last point made by the noble Lord, Lord Rosser, about further discussions, and as requested by the noble Baroness, Lady Brinton, I am very happy to convene a meeting. On that note, officials have met the GMC to discuss the data-sharing clauses. They have agreed to support the drafting of the statutory guidance and officials have also offered to meet the BMA, but a date has not been fixed. I would like to schedule the meeting that the noble Lord and the noble Baroness request, and it would be great if they would join it.

On the first point made by the noble Lord, Lord Paddick, about a police-led approach, in the serious violence duty draft guidance it is writ really quite large that this is not led by one agency or another but is a shared endeavour towards a public health approach. There are two pages on that, and I think the noble Lord might find that really helpful. At this point, I also thank the noble Lord, Lord Carlile, for both giving the benefit of his experience and bringing balance to the debate; “balance” seems to be a word quite often used in this debate.

Information sharing between relevant agencies is absolutely essential to the discharge of the serious violence duty. The issue before us is how such information sharing, particularly when it relates to personal data of identifiable persons, is properly regulated, and the scope of any restrictions on data sharing. I recognise that there are concerns, particularly in respect of patient information, and that we need to examine them carefully, but I am also concerned that at least some of these amendments seek to significantly weaken the provisions in Chapter 1 of Part 2. Amendment 54 is a case in point. It would have the effect of removing specified health authorities—clinical commissioning groups or CCGs in England and local health boards in Wales—from Schedule 1 and consequently remove the requirement for such authorities to participate in the preparation and development of local serious violence strategies.

I know that noble Lords would agree that the health sector has a very important contribution to make to local partnership working to prevent and reduce serious violence. The provision of local health data will be necessary to take a comprehensive view of the levels of violence being brought to the attention of services in a local area. Local health services may also be involved in the implementation of local strategies, for example where health-related support services are to be commissioned for those at risk of or involved in serious violence. I therefore do not think that it is appropriate to remove specified health authorities from this part of the Bill.

On the point made by the noble Lords, Lord Paddick and Lord Rosser, I would like to be clear that the information-sharing provisions under the serious violence duty do not place any mandatory requirements directly on GPs, doctors or other practitioners to disclose information that they hold. The power to disclose information in Clause 15 applies to information held by CCGs in England and local health boards in Wales, as they are specified authorities. Local policing bodies can request information under Clause 16 from CCGs in England and local health boards in Wales only when it relates to them, their functions, or functions they have contracted out, and only where that information is for the purposes of enabling or assisting the local policing body to exercise its functions under Clause 13 of the Bill. I think that was the point that the noble Lord, Lord Patel, referred to, unless I am wrong.

Confidential patient information can already be lawfully disclosed in the public interest where that information can be used to prevent, detect or prosecute a serious crime. However, such decisions about whether disclosures of confidential patient data are justified must always be made on a case-by-case basis, in line with data protection legislation, which is also the case for the serious violence duty provisions.

On the common-law duty of confidentiality, the point made by the noble Lord, Lord Carlile, about balance was really pertinently made. So many crimes that we can all think of, particularly against children—he mentioned a case that involved children—could have been avoided had practitioners shared relevant information. Existing statutory guidance on the Care Act 2014 already signals specific circumstances where the common-law duty of confidentiality and data protection legislation would not be contravened by the sharing of personal data—for example, where there is an overriding public interest.

Confidentiality can be overridden if there is a necessity—namely, abuse or neglect. Ordinarily, consent should be obtained but, where this is not possible, practitioners must consider whether there is an overriding public interest that would justify information sharing—namely, risk of serious harm. Again, that point was made by the noble Lord, Lord Patel. Confidential patient information can already be lawfully disclosed in the public interest where that information can be used to prevent, detect or prosecute a serious crime. However, such decisions about whether disclosures of confidential patient data are justified must always be made on that case-by-case basis.

I hope that I have provided some reassurance on this matter. As I indicated at the start, I know that there are particular sensitivities about sharing patient information, but, having heard the concerns, I will reflect carefully on this debate and convene the meeting that noble Lords requested ahead of Report. I hope that, with that, the noble Baroness, Lady Brinton, will be content to withdraw her amendment.

[Baroness Chakrabarti (Lab)]

Before—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

May I remind the Committee that the noble Baroness, Lady Brinton, is participating remotely? I apologise if I interrupted somebody who wanted to speak.

[Baroness Chakrabarti (Lab)]

Forgive me, but before the Minister sits down, can I ask her to reflect and, if she wants to come back, to address the issue of who decides? I am very grateful for her assurance about intention and that there is no attempt to go further than classical practice has gone, which is a public interest exception to general patient confidentiality. But if, for example, under the new provisions, there were to be a dispute between, say, the police and the relevant health authority and/or the relevant health authority and the individual practitioner, who would decide? That is of course crucial in relation to patient-doctor trust.

[Baroness Williams of Trafford (Con)]

The decision may be challenged, but the person who decides would be the person who holds the data.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Monday 25th October 2021 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I rise briefly to support what my friend, the noble Baroness, Lady Newlove, has just said. I echo her praise and thanks to another friend, the noble Lord, Lord Coaker, an ex-Parliamentary Assembly of the Council of Europe colleague, for his diagnosis—because that is essentially what this probing amendment is about.

It has become extremely fashionable for Her Majesty’s Government to do two things when they feel they are getting into difficult waters. First, they give responses whereby a series of rather large-sounding sums of money are trotted out to show that they care and are doing something about it. Usually, there is no mention of what effect those large sums are having.

The second thing Her Majesty’s Government have developed a particular tic for is developing strategies. As I have said before in this Chamber, when I hear too many strategies coming from various directions, my instinctive reaction is to reach for my tin hat and head for the trenches. By their very nature, strategies are aspirational. They try to understand a problem, and they suggest a solution. They do not guarantee what the outcomes will be, and they rarely have built into them accurate measures and KPIs to actually work out whether the much-vaunted strategy is delivering.

I entirely agree with publishing strategies, not least because in reading them and tearing them apart, you can work out whether they are complete rubbish or complete and utter rubbish or contain a germ of common sense and a direction. To take the example of the report which Her Majesty’s Inspectorate produced only three days after Second Reading of this Bill, what Zoë Billingham produced is a fairly coruscating read. If your Lordships have not read it, I recommend it, but probably not just before bedtime. It takes apart at all these strategies and initiatives, all the money that has been thrown in all sorts of directions in considerable sums over many years, and measures how effective all that effort has been. The report says in very stark terms—Zoë Billingham repeated this on “Woman’s Hour” a few days later in even clearer English—that it is simply not working because it is not joined up. Having a series of local strategies does not result in a national strategy that will deliver.

This probing amendment is designed to ask Her Majesty’s Government to look at the past, the present and the evidence of what has not been achieved, rather than the precious little that has, and not to repeat the mistakes of the past, with wonderful vague promises and aspirations—particularly when we are dealing with issues such as violence against women and girls and the effect on children, when we know we owe it to them to do better. We need proper oversight. There is a difference between a report and a strategy. We need a mechanism that measures and holds the Government and all the different statutory bodies involved to account. That is what the amendment is about, and I look forward to hearing the Minister’s reply.

[Baroness Chakrabarti (Lab)]

My Lords, I have surprised myself, because I did not intend to speak on this group, but I find myself needing to speak in support of the noble Baroness, Lady Newlove. Generally speaking, I am not a great fan of machinery of government changes, new quangos or even of new, multiple statutory duties, but if we are taking the trouble to legislate on something as serious as serious violence, we need to think about transparency, accountability, enforcement and resourcing. Talk is cheap, and legislation is a little more expensive—but the colleagues in that Box do not get paid so much. These principles have been the undercurrent of the debate on this group.

The noble Lord, Lord Blencathra, spoke eloquently on the part of the Delegated Powers Committee, and I did not disagree with a word, save to say that I was once a lawyer in the department advising him, and we are not going to blame the officials. My recollection was that Home Office lawyers were actually terrified of the Delegated Powers Committee; it was sometimes Ministers who were a little more blasé. However, every substantive point the noble Lord made was important. There is no point having guidance if it is not to be published—unless it is guidance to the security agencies. More generally, the noble Baroness, Lady Newlove, nailed it, as did my noble friend Lord Coaker. We all care about these issues. I worked on the Crime and Disorder Act when it was a Bill all those years ago, but we have heard the figures.

If it is worth legislating in this area at all, it is worth looking at how the legislation is to be enforced and resourced. That cannot be done in secret and we cannot just have directions from central government to starving local authorities; it must be public, it must be accountable, so I speak in support.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have set out the case for the various amendments in this group. The noble Lord, Lord Coaker, pointed out that certain crimes are up, and he is absolutely right. He asked, rightly, how these strategies will be different. They will work only if they can measurably show something at the end. The noble Lord, Lord Russell of Liverpool, gave us some of the solutions: first, agencies working together in a multiagency approach, as the noble Baroness, Lady Newlove, says. Sharing data trends is one of the suggestions in the draft guidance: sharing those trends, where the hotspots are and where agencies can have a better focus on the needs of certain areas. Local needs assessment is going to be crucial, but the monitoring and reviewing against those three measures that the noble Lord, Lord Coaker, and, indeed, the Government set out will be the ultimate measure of success or otherwise. He is right to point out that successive Governments have had successive strategies to try to deal with these things—that is because it is just not that easy. If it were, someone would have worked it out by now. I think that is at the heart of what we are talking about this evening.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, this group enables me to raise a concern that will not be new to the Committee or to the Minister but has not been resolved as a general issue and is possible as the Bill is drafted. It is the reluctance of immigrant women—it is usually women—suffering domestic abuse to go to the police for help because they fear that information will be shared with immigration authorities.

Last week, the Domestic Abuse Commissioner published a report entitled Safety Before Status, and one of her recommendations is that

“the Home Office should introduce a firewall between police and immigration enforcement, accompanied by safe reporting mechanisms”

I cannot resist saying that it continues

“and funded referral pathways to support.”

Perpetrators can use a victim’s insecure status as a component of coercive control. They can use status that is not insecure, but the victim is led to believe that it is. If victims are to come first, it is essential that they know that they can seek support without putting themselves in danger of deportation. I was going to ask noble Lords to imagine what this means, but I am not sure any of us can: not only the financial and accommodation implications considerations but, in some communities, shame and abandonment by the family in the country of origin. There are a number of very difficult consequences—that is putting it too mildly.

The commissioner’s report says:

“Immigration abuse and insecure immigration status as a risk factor is not always identified in local safeguarding protocols, and often the risk faced by victims … is misidentified.”


She goes on:

“Information sharing with immigration enforcement undermines trust in the police and public services”—


a point that has been made this evening—

“and enables perpetrators to control and abuse survivors with impunity. A key reason why staff in public services share information with immigration enforcement is for the perceived purpose of safeguarding a victim. Data sharing in this capacity, however, can put the victim or survivor at risk … and, even where enforcement action does not take place can compound the experience of immigration abuse, pushing victims and survivors further away from support.”

I could not let this group go by without raising that issue.

[Baroness Chakrabarti (Lab)]

My Lords, I will briefly but wholeheartedly support the thrust of all the amendments in the group. The noble Lord, Lord Paddick, as a former policeman, put it very well: if everyone tries to be the policeman society is the poorer, but effective policing is also harder to achieve. To crystallise it, let us say that the noble Lord, Lord Paddick, is the policeman and I am the teacher or youth worker. If I am under any kind of duty, or perceived to be, to hand over my notes on an automatic basis or on demand to him, there is a significant problem not just for education and youth work but for trust and confidence in civil society, and indeed for my ability to go to the noble Lord when I have a specific overriding concern about an individual young person or student.

I understand where this comes from—it comes with the best intentions, because Governments of all persuasions have gone increasingly down this road of big data for many decades. It is not a party-political point, because when you are in government you are told, quite rightly, that central government is indivisible and that there is one Secretary of State. That is a very important central government constitutional principle, yet even central government is supposed to hold data for specific purposes.

There is an obvious attraction to creating a purpose that overrides all others on a wholesale basis, especially when it is something as important as combating serious violence. However, if it trumps not just other government purposes, such as tax collection or healthcare, but begins to trump local and professional confidential duties, we are really in trouble. As I said, with the best of intentions, this will undermine trust and confidence in a number of vital services and will, I believe, undermine the role of the police. When you are looking for a needle in a haystack, do not keep building an ever greater haystack.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part one & Committee stage
Wednesday 27th October 2021 Lords Chamber

I shall raise one final point. it was raised in the Commons but did not get an answer. It is about funding, to which my noble friend Lord Bach referred. The Local Government Association has raised the issue that CSPs have had their funding steadily withdrawn since 2010. As the Bill appears to create an additional duty, do the Government have plans to review the impact that funding reductions have had on the ability of councils to work with other partners to tackle crime?

[Baroness Chakrabarti (Lab)]

My Lords, with apologies for rising at this late stage, I lay my cards on the table and say that I have never been the greatest fan of legislating to require public officials to work together and creating byzantine edifices of legislative partnerships. However, I think that the noble Lord, Lord Paddick, has a point. If this is to stand, we need to understand whether “may” means “may” or “may” means “must” or whether “may” will become “must” because of regulations that will be made under what Clause 13(4), as it is now, will eventually become. That is just good law-making.

Unlike my wonderful noble friend Lord Bach, I have not been a great enthusiast for police and crime commissioners. I have to be clear about that. I always thought that it would lead to a politicisation of the police and, I am sorry to say that in many cases I feel that that has been the case. I will not dwell on the very crass remarks made by a particular commissioner in the wake of the Sarah Everard case. I am not a fan of that particular politicised mechanism for holding the police to account.

We will no doubt come to this in later clauses, but of course we must have a public health or more holistic approach to tackling—dare I say it—the causes of crime, as well as crime. But setting the policing bit and the Home Office above the other parts of the partnership, with the powers to mandate and the money and so on, is a journey we began with the Crime and Disorder Act, probably 23-odd years ago, when I had the privilege of sitting over there, in the Box. It is a journey that we still seem to be on. I am sorry to say that the poor old Home Office is often the dustbin department, picking up problems in society when it is almost too late. A lot of the deep-seated causes of crime come from other places and need to be tackled; yes, by preventive action—many noble Lords have made that point—but such preventive action belongs in education, in health and in tackling poverty and inequality. We all know this—I am preaching to the choir—but to set up an edifice whereby the senior partner, with all the powers to mandate and all the money to donate, is the policing bit, the security bit, the interior bit and the Home Office bit, is something we need to explore further, as I think the noble Lord, Lord Paddick, intends, during the scrutiny of these clauses.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have contributed to this debate. Clause 13 provides a power for a local policing body—namely, a PCC, the Mayor’s Office for Policing and Crime, or the Common Council of the City of London in its capacity as a police authority—to assist authorities in meeting the requirements of the serious violence duty. The noble Lord, Lord Rosser, was absolutely correct, as was the noble Lord, Lord Bach—as I always say, we are immensely lucky to have Parliament’s only PCC in our place; the benefit of his experience is incredibly useful.

Local policing bodies have an important part to play in convening partner agencies. PCCs and the Mayor’s Office for Policing and Crime, as elected local policing bodies, are the voice of the local community in relation to policing and crime. This is reflected in their current functions in relation to community safety partnerships. Local policing bodies are responsible for the totality of policing in their force area—the noble Lord, Lord Bach, pointed out some of the things that they get involved with—as well as for services for victims of crime. They will therefore have shared objectives in relation to the prevention and reduction of serious violence. That is why this clause provides local policing bodies with a discretionary role in supporting specified authorities with the preparation and implementation of their strategies, as well as monitoring their effectiveness and impact on local serious violence levels. I underline that the PCC role is discretionary and that it cannot be mandated through regulations.

The PCC, the Mayor’s Office for Policing and Crime, and the Common Council of the City of London will not be subject to the serious violence duty as specified authorities. However, as with the existing functions of these local policing bodies in relation to community safety partnerships, they may choose to collaborate with local partnerships. They may also take a convening role to support effective multiagency working.

Regulations made by the Secretary of State may provide further detail on the ways in which local policing bodies may assist specified authorities, including convening and chairing meetings, requiring certain persons to attend such meetings and providing funding to a specified authority to support the implementation of the local serious violence strategy. They will also have a power to require information for this purpose, as set out in Clause 16. In undertaking their monitoring functions, local policing bodies may report their findings to the Secretary of State to ensure compliance with the duty.

Specified authorities will have a duty to co-operate with local policing bodies when requested to do so. However, we have made clear in the draft support guidance the need for the relevant local policing body to consider the proportionality of additional requests and anticipated costs to specified authorities before making any such requests.

The overall objective is to provide additional support and leadership, if and when required, and not to place additional burdens on those authorities subject to the duty. The approach is very similar to arrangements in place for CSPs. There has been a mutual duty on PCCs and CSPs to reduce offending since the Police Reform and Social Responsibility Act 2011. I am sure noble Lords will agree that, to engender an effective multiagency approach to preventing and reducing serious violence, we must ensure that all relevant parts of the system play their part and have sufficient support in place to enable them to do so. We believe that local policing bodies, including PCCs, are best placed to provide that support. I take also the point made by the noble Lord, Lord Rosser, about funding.

--- Later in debate ---

[Baroness Meacher (CB)]

I rise to explore whether Clause 17 should in fact stand part of the Bill. I am grateful to the noble Lord, Lord Paddick, for his support. He knows a great deal more about all this than I do. I will focus my remarks on Clause 17(1)(a), which refers to Clause 16(4). That subsection makes clear that a person employed by any specified authority who is requested to supply information to a policing body must comply with the request. Of course, these bodies may include a health authority as well as an education authority, prison authority, youth custody authority or any other authority named by the Secretary of State.

My objections to Clause 17, if I have understood it correctly—and I am humble enough to know that I may not have—are rooted in my objections to the earlier clauses requiring disclosure of information by public servants to the police. Clause 17 seems to add insult to injury by giving the Secretary of State powers to issue directions to any public servant failing to provide information in order to secure compliance with the duty. Clause 17 goes on to say that a direction can be enforced by a mandatory order. Can the Minister assure the House that these clauses exclude the disclosure of information that could identify an individual? This is vital, as the Minister knows—and I have a great regard for our Minister, who understands these things.

A doctor or teacher, for example, may take the view that to pass information that risks identifying a patient, pupil or other individual to the police would be contrary to the interests of that person and would not contribute significantly to preventing or reducing serious violence. They may make a professional judgment not to disclose information that could identify a patient, pupil or other. I seriously question the Government’s proposals in Clause 17, unless this issue can be clarified.

For example, a patient may suffer from mental health problems and may be causing difficulties, but may still be making good progress in a therapeutic programme. It is likely to be utterly destructive to draw that person to the attention of the police. Likewise, if a child has severe behavioural problems at school, is vulnerable and is being targeted by a drug dealer but has agreed to co-operate with a cognitive behaviour programme and other support designed to deal with his or her problems, it would be incredibly damaging to involve the police at this point. That child could be driven into a life of drugs and crime instead of being carefully steered away from such a path.

Having worked as a social worker many decades ago—goodness knows how many—and worked with families with problems, and having also been on the Police Complaints Authority for nine years, I think I can look at these issues from both points of view. I have considerable regard for the police, despite being—indeed, perhaps because I was—involved in investigating complaints against the police for all those years. I understand that they do want information about young people who may be committing crimes. The noble Baroness, Lady Williams, knows well my view that a radical review of our Misuse of Drugs Act 1971 to focus on drug treatment, rather than criminalising sick addicts, would be a great deal more fruitful in reducing drug abuse and serious violence, including county lines, than this Bill, the serious violence prevention orders and these disclosure clauses.

I hope that the Minister will explain what penalties the Government have in mind if a public servant fails to provide information in accordance with a mandatory order. Are the Government at risk of criminalising public servants? I hope the Minister can reassure the House on these issues and that she will, if necessary, seek the agreement of her colleagues to reconsider the approach in Clause 17 before Report. I look forward to her reply.

[Baroness Chakrabarti (Lab)]

My Lords, I have to support what I have just heard from the noble Baroness, Lady Meacher, for reasons we began to articulate on Monday evening. Noble Lords will remember we began to have a discussion about what is to be shared and in what circumstances existing duties of confidence and existing professional duties need to be overtaken in the public interest. But who decides? The Minister kindly gave me a very specific answer at one point in our discussion, when she said that it will be decided by the person who holds the data, but, obviously, that can be subject to challenge. That of course is my traditional understanding of professional confidence.

Way before this, and way before the Crime and Disorder Act, that was the traditional position: if the doctor, the teacher or whoever is not minded to hand over to the police the data about a specific person, or more general data, the police will have to go to the courts and try to get a warrant. That is the place for those hopefully rare disputes between professionals and the police, who are coming at this from different positions, to be decided, rather than being decided by direction from the Secretary of State.

Of course, normally, we want the health professionals, the policing professionals and the educational professionals to be working in discussion and collaboration, but, where there is a rare dispute because of their different professional angles and ethics, it really is for a judge to decide and not for the Secretary of State to trump all those existing ethics and duties. I think the noble Baroness, Lady Meacher, is nodding at me. That is the concern I hope the Minister can address in her explanation and defence of Clause 17.

[Lord Paddick (LD)]

My Lords, I rise to support the noble Baroness, Lady Meacher, and I am very grateful to the noble Baroness, Lady Chakrabarti, taking us back to very late on Monday night, if the Minister remembers, when we were discussing Clause 15, on the disclosure of information. The Minister—I think, from memory, although it was late—implied that the disclosure of information was voluntary and that the clause was there simply to facilitate the disclosure of information. In challenging the Minister in that, I quoted from Clause 17.

I can be brief. Clause 17 enables the Secretary of State, if satisfied that a specified authority, educational authority or youth custody authority has failed to comply with the duties to collaborate or disclose information—including, presumably, sensitive personal information and information covered by a duty of confidentiality—to direct the authority to comply and enforce her direction through a mandatory order. That is what Clause 17 says.

I have already explained at length why professionals should use their professional judgment—as the noble Baroness, Lady Chakrabarti, just said—within existing policies, procedures, practices and protocols, rather than being forced to divulge sensitive personal information when it is not, on balance, in the public interest to do so. For example, there will often be a greater good to be derived from maintaining a relationship between, say, a youth worker and a young person at risk of becoming involved in serious violence than from divulging sensitive information to the police. All authorities dealing with these issues are committed to preventing and tackling serious violence. They may, from time to time, have a different perspective on the problem, or a different view on the best way to achieve what we all are desperately seeking to do.

This clause is one of the reasons why so many organisations believe that the Bill is really about a police-led enforcement approach, because it is the Home Secretary who can force them to comply, rather than the public health, multiagency, multifaceted approach that has been so successful in preventing and tackling knife crime in Scotland. Can the Minister give examples of where public authorities involved in preventing and tackling serious violence have obstructed efforts to achieve those objectives? If not, why is this clause necessary? We believe that Clause 17 should not stand part of the Bill.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, the direction power is not available in relation to probation services provided by the Secretary of State or publicly run prisons, youth offender institutions, secure training centres or secure colleges. As I said earlier, existing mechanisms will be available to ensure that they are meeting the requirements of the duty. In addition, as I have already outlined, the Secretary of State must also obtain consent from Welsh Ministers before exercising the direction power in relation to a devolved Welsh authority.

[Baroness Chakrabarti (Lab)]

Before the Minister sits down, I have one further question about the protection on data protection. My understanding is that, essentially, it works by limiting the control and transfer of data to the purposes for which the data is held. However, if this legislation changes those purposes to include, for example, the serious violence duty, data protection will not help any more because there will be a purpose that overrides the existing primary purpose. Perhaps during the next few hours—or years—of this Committee, we could get some advice from our friends in the Box.

[Baroness Williams of Trafford (Con)]

The noble Baroness is absolutely right about data protection but there are exemptions. One is the detection, prevention and reduction of crime.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Wednesday 27th October 2021 Lords Chamber

[Lord Beith (LD)]

My Lords, this is an important part of the Bill and an important and large group of amendments. I want simply to concentrate on the two amendments to which the noble Baroness has just referred: Amendments 103 and 104, which are in my name.

Amendment 103 follows concern from the Delegated Powers and Regulatory Reform Committee and its recommendation to deal with what it describes as an inappropriate delegation of power. The Bill leaves to regulation all provision about the exercise of the powers in Clauses 36(1) and 39(1) to extract confidential information. Regulations are to implement a code of practice, which will itself be consulted on. The committee believes these powers should instead be in the Bill, and I agree. However, I part company with the committee in its view that these powers, once put in the Bill, should be amendable by affirmative instrument. That is the creation of a Henry VIII power to modify primary legislation by means of secondary legislation, so I do not think it is the best way to handle the matter. Of course, one of the problems is that, whereas the process of creating the original material, if it is in the Bill, is an amendable process, that does not apply to any subsequent regulations which would definitely alter the material on the face of the Bill.

The Government’s argument for their approach—leaving it all to regulations—is that this is an area of fairly rapid technological change. It might become possible, for example, to extract a relevant subset of information rather than having to extract everything. However, that could be covered in the drafting of the Bill. A major change in the future would justify parliamentary legislation. If the technology really does change the situation dramatically, both Houses could deal with the matter by primary legislation.

I am sure there is a potential compromise under which the Bill could state more extensively and clearly the general principles governing the extraction of confidential information. It already does so to some extent, but if it did so further, it would narrow the range covered by regulations, if they are necessary at all.

It would also be helpful if the Minister could explain why the process to revise the code of practice from time to time would be subject to the negative procedure only. If the regulations which embody the code of practice are going to be changed significantly, why should that be only by the limitations of negative procedure?

Amendment 104 is quite different. It probes the provision in Clause 41(2)(a) covering confidential journalistic material with the meaning given in the Investigatory Powers Act 2016. The regulations are intended to cover the extraction and use of such material. It would be helpful if the Minister could set out the Government’s position and intention on confidential journalistic material and to what extent it is to be treated differently from protected material, such as legal privilege. We need that to be spelled out more clearly. I look forward to the Minister’s response.

[Baroness Chakrabarti (Lab)]

My Lords, I rise to speak in support of the broad thrust of all these amendments and in particular to support the most important one of all, which is Amendment 80 from the noble Lord, Lord Paddick, to which I have added my name.

To begin by way of balance—both political and gender balance—I pay tribute to the noble Baroness, Lady Newlove, who could not be here this evening but who has been incredibly supportive of women’s groups and has been alive to this issue for some considerable time. She was sorry not to be able to be here.

A few years ago, when I was sitting where the noble and learned Lord, Lord Falconer of Thoroton, sits now, I had the privilege of questioning a former Justice Minister about the legal basis for the practice that women’s groups and victims of sex crime had called digital strip searching. Many in your Lordships’ House groaned as if I was using an inappropriate phrase. To be honest, I did not get a lot of support from many noble Lords on any side of the House, but it is better to be late to the party than not come at all.

I say that to the Minister because there is no competition for sainthood here. All sides of this House are a little late to this issue, but we now have this precious opportunity to grapple with it. I do not think any of these formulations are perfect yet. I am so grateful to the Minister for discussing this with me recently, among other issues, as even the progress that the Government have made so far in these amendments can be improved.

I think the noble Lord, Lord Paddick, in his very simple Amendment 80, has done something incredibly important. I questioned the previous Justice Minister about the legal basis for taking these phones at all. Imagine that you have been raped or assaulted and have been through this horrific experience, but you do what a lot of people find very difficult to do—we know about the attrition rates—and go with a friend to the police station, to be told that you now have to hand over your device. The Minister will forgive me, but we discussed this together recently. If I were to hand my phone over, I am not just handing over an old-fashioned telephone; I have so many dear friends and family members whose numbers I do not know, because I click their names to call them. I have just been raped, but I am now giving away my contact with these people, my diary, my shopping lists and my browser, which shows all the mental health and other websites I have visited. Let us be clear: this is probably more intrusive than searching my home. The Minister will forgive me, but we discussed this together.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

The noble Lord is absolutely right, but I think my noble friend is making a point about where the tables are turned and the alleged victim is not the victim at all.

[Baroness Chakrabarti (Lab)]

In the sort of scenario being described, the suspect—not yet a defendant—will be able to say, “This was consensual and there is a text message that will demonstrate that.” Once that is asserted, that can be sought. It is not a justification for the kind of wholesale retention of mobile phones and trawling of data that people fear. I know that the hour is late and that the Minister wants to make progress, but I just want to put two questions before I sit down and let her finish her response.

First, I noticed while the Minister was speaking that the formulation used in my noble friend Lord Rosser’s Amendment 89 is “strict necessity”, whereas in the government amendments the test is of necessity—

[Baroness Williams of Trafford (Con)]

If the noble Baroness would bear with me, I am going to get on to that point about the read-across to other things. I hope that I have made it clear that I totally empathise with and get the point that my noble friend is making and that the remedy should be established through the court process.

Amendments 99 to 101 address a further point raised by the Victims’ Commissioner; namely, that she and other like commissioners have a statutory right to be consulted on the code of practice. This will give victims and witnesses further confidence that their concerns and priorities are represented in this code of practice.

Amendment 105 will ensure that the Scottish Ministers and the Northern Ireland Department of Justice are consulted before regulations are made to add, remove or amend an authority with devolved competence under Schedule 3.

Government Amendments 108 and 109 add to the list of authorised persons in Schedule 3. Amendment 108 will ensure that authorised persons in the Insolvency Service can exercise the Clause 36 power for the purposes of the prevention, detection or investigation of crime in pursuit of their functions, which include tackling financial wrongdoing. This was initially a mystery to me, but the Insolvency Service is an executive agency of the Department for Business, Energy and Industrial Strategy, hence the language used in the amendment, but it is important to note that the reference to an officer of BEIS is qualified because any individual falling within that description may exercise the powers only for the prevention, detection or investigation of crime. Schedule 3 already enables the Independent Office for Police Conduct to exercise the Clause 36 powers. Amendment 109 adds the equivalent bodies in Scotland and Northern Ireland.

As I have said, we believe that the government amendments address many of the points raised in amendments tabled by the noble Lords, Lord Rosser and Lord Paddick, but I will now turn to some of the other amendments in this group. Amendment 79 seeks to provide free independent legal advice to device users before they agree to the extraction of information from their device. Government Amendment 93 will ensure that device users are fully informed of the reasons that the information has been sought and how the information will be used. We do not think that provisions in this chapter are the right place to address what is a broader issue about the provision of legal advice to victims and witnesses given the wider impacts across the criminal justice system as a whole.

As regards Amendment 89, the noble Lord, Lord Rosser, highlighted the alternative drafting in respect of the test for the exercise of the Clause 36 powers. As the Bill is drafted, the authorised person must be satisfied that the exercise of the power is necessary and proportionate to achieve the relevant purpose. Under Amendment 89, this necessity test would become one of “strictly necessary”. The matter was also raised by the Victims’ Commissioner in briefings to noble Lords.

We understand that the reason for the concern is the strict necessity requirement in the Data Protection Act 2018. The powers in Clauses 36 and 39 must be read alongside existing obligations under the 2018 Act or the UK GDPR. In every case where authorised persons are extracting sensitive personal information from a device under these powers for a law enforcement purpose, such as preventing, detecting, investigating or prosecuting crime, they must continue to meet the strict necessity threshold in the Data Protection Act. It is therefore not necessary to duplicate that existing legal requirement in the Bill; it is there.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

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

[Lord Forsyth of Drumlean (Con)]

My Lords, I did not participate in Second Reading on the Bill, but I did get some correspondence that explained to me what was going on, and I just could not believe it. I am not going to repeat the arguments which were so eloquently put by the noble Baroness, Lady Fox, and the supporters of the amendment but I could not believe it. As an employer, I am required to do criminal record checks and if I got a response that said someone was guilty of hate crime, I am afraid their application would go straight in the bin. Yet we discover that people can be put on such a list without their knowledge, as my noble friend Lady Noakes said, and that their name will stay there indefinitely. That of course does not apply to people who have actually been convicted of crimes, so they are in the worst of all positions.

Then there is the arbitrary nature of this recording, so I wondered how big a problem this is. I am told that there have been 119,934 of these incidents recorded by 34 police forces and that 2,130 of them were done by children. It is extraordinary that this could be happening and is part of a wider concern where our free speech is being undermined. I went on Twitter; I think I lasted about three months. I have spent 40 years offending and upsetting people with the things that I said. So far as I know, I am not on a list as having committed a hate crime.

However, the essence of our democracy is that there should be free speech and that our police should be in the business of finding out what the evidence is, not turning into the people who conclude and are, in effect, prosecutors. I will not detain the House but among the examples given was someone who expressed the view that trans women should not have access to women-only spaces. Well, I believe that; is it a hate crime? Am I not allowed to say that? The fact that someone could be put on such a list indefinitely offends against our democracy.

I am sure my noble friend the Minister will have a brief, because all Ministers always do. I am sure she will have her brief from the Home Office—I worked in the Home Office for a while—and it will say that the amendment is not perfectly drafted and that some provision elsewhere could cover it, and all the rest. I hope she will throw that away and give an undertaking not only to bring forward a government amendment but, this very day, to get on to the College of Policing and end this absolute outrage.

[Baroness Chakrabarti (Lab)]

My Lords, I think I am probably quite woke, and proud to be so; none the less, I support the broad thrust of the amendment from the noble Lord, Lord Moylan, subject to a couple of caveats. The first caveat is a slightly light-hearted one. As a serial offender, I gently say to noble Lords and friends across the Committee that the overuse of adjectives named for great writers does not always help the cause of human rights. We have all done it: “Dickensian” for socioeconomic rights and “Orwellian” or even “Kafkaesque” for civil liberties. “Chilling” is similar. In fact, an online wit once said of my overuse of these terms: “That Chakrabarti woman finds everything chilling. She sees refrigerators everywhere.” That is just a gentle point about the way we frame this.

I support the broad thrust of this, but the problem is not just about allegations of hate. It is about soft information, as it is sometimes called, or allegations that are not capable of sustaining a criminal charge and should not sit on databases for years and years, or indefinitely. This problem has been growing for many years with the rise of the database state and the potential to hold all sorts of data, even if it never matures into a charge. That is dangerous.

In my previous role as director of Liberty, I saw many cases of this kind. Not all involved free speech. I remember one woman who had allowed her small children to play in the park while she went to a kiosk, and people thought they were unattended. She was cautioned by the police because she was at the borderline, they thought, of neglect, but there was no question of pursuing a charge. None the less, this data sat around for years and was hugely detrimental to her when she sought to work in positions of care.

This is not just about the glorious culture wars that have got everyone to their feet today. It is not about your views on trans inclusion or not, but about whether so-called soft information or police intelligence that never matures into a charge should sit unregulated, off the statute book, as a matter of police discretion and administration. Whatever our views on the free speech point, we surely have to agree with procedural point that the noble Lord, Lord Moylan, was right to make clear.

I remind noble Lords that free speech is a two-way street. It is not just about the woke and so-called cancel culture; it is also about protesters who feel that they attend demonstrations and sit on police databases for many years just because they have been caught on CCTV. We in your Lordships’ House would do a great service to the nation if, whenever we consider these so-called culture wars that centre around identity politics and in particular free speech, we remember that it is a two-way street. It is people on either side of very contentious arguments who sometimes want to “cancel” each other, and we should remember that.

My final point is a substantive one about the way I urge the Minister to take this forward. Given that the concern is about not just hate incidents but all soft information that may be held indefinitely, can the Minister’s response today—or on Report, with, I hope, substantive government safeguards—be comprehensive and address not just non-crime hate incidents but all soft intelligence and all police data about individuals that could be to their detriment going forward, whether it touches on free speech rights or other rights such as Article 8 rights to privacy and autonomy? Can this soft information that has been held administratively by the police be on the statute book and brought under proper regulation and control?

[Lord Judge (CB)]

My Lords, the issue is very simple. We surely have to decide whether hate crime and non-hate crime, and all their different manifestations, should be left to police guidance, or whether the issue is far more important than that and should be brought under the process of Parliament—legislative control and legislative process. To me, the answer is perfectly clear: the latter.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

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

Moved by

[Baroness Chakrabarti]

122: After Clause 49, insert the following new Clause—
“Arrest without warrants: safeguarding
In section 24 of the Police and Criminal Evidence Act 1984 (arrest without warrants: constables), after subsection (4) insert—“(4A) A constable exercising the power conferred by subsection (1), (2) or (3) may not require or ask the person under arrest to enter a vehicle or premises other than a police station unless at least one other constable is present in the vehicle or when entering the premises, as applicable.””

[Baroness Chakrabarti (Lab)]

My Lords, I have the duty of opening this debate on amendments tabled by noble Lords in response to Sarah Everard’s abduction, rape and murder by a man who was, at the relevant time, a serving police officer, and further to the public outpouring of revulsion and distrust arising from revelations about how the perpetrator was allowed to thrive in the police service, despite repeated concerns about his character and conduct over so many years. These emerged in particular during sentencing proceedings just over a month ago.

My Amendment 122 attempts to address the fact that as a matter of hard law—as opposed to soft guidance, practice, or anything of that kind—a lone arresting officer is currently permitted to require a person subject to arrest to enter a vehicle or premises other than a police station. This gives rise to obvious dangers of abuse of power and dangers to the majority of officers who, unlike the man in question, undertake hazardous and vital public protection duties in good faith.

I am grateful for the support of the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones of Moulsecoomb. I think the subsequently tabled Amendment 123, in the name of the noble Lord, Lord Carlile of Berriew, attempts to tackle a very similar mischief. He will forgive me, I hope, if in a moment I explain why I prefer my original proposal.

My Amendment 275 requires that the inquiry into matters arising from the Sarah Everard atrocity—for that is what it is—be put on a statutory footing under the Inquiries Act 2005. I am grateful not only for the signature of my noble friend Lord Rosser but for that of the noble Baroness, Lady Newlove, and my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am also grateful for the support that the noble Lord, Lord Paddick, and a number of other noble Lords from across your Lordships’ House have expressed for this endeavour.

Once more, I hope that my noble friend Lord Rosser —and my noble friend Lord Coaker on his behalf—will forgive me for preferring my precise formulation to his Amendment 281, not least because in this matter the ideal outcome must be for the Home Secretary to hear the legal and public confidence arguments and by her own volition launch a full statutory inquiry under the 2005 Act, long before the Bill before your Lordships’ Committee becomes law.

Finally, I will support my noble friend Lord Rosser’s Amendments 282 and 283, which seem so important given the obvious needs for better training and vetting in the police service.

Amendment 122 amends Section 24 of the Police and Criminal Evidence Act 1984 governing the powers of police constables who arrest without warrant. It would prevent a police officer in or out of uniform from requiring an arrested person to

“enter a vehicle or premises other than a police station”

unless or until a second officer is in attendance. They would still be able to restrain the arrested person to prevent an escape if so required and, if necessary, to seek bystander assistance in so doing. However, there would be no question of a sole plain-clothed or uniformed officer driving off with an arrested person. This clear and simple change to our law must be better for the safety of all citizens and constables alike.

We now know that the first phase of the hideous abuse of power against Sarah Everard perpetrated by a predatory, murdering rapist was that he went hunting for a young woman under the cloak of dusk and draconian lockdown laws. He persuaded Sarah that he was arresting her under suspicion of breaching those same lockdown laws—something, by the way, that should require those laws being perhaps amended or repealed. While some senior voices in policing had the gall to suggest that she and other women are somehow too naive or compliant, and others have tried to suggest that we ought to perhaps flag down traffic, demand to speak to the control room on an officer’s radio or resort to private sector safety apps on our own mobile phones, it seems that no amount of new guidance to either citizens or constables can substitute for a clear and well-publicised change to primary legislation that everyone can understand.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I note the noble Lord’s points and I do not disagree with him. I ask the Committee to understand the commitment of the Home Secretary. She is deadly serious about ensuring that the inquiry moves at pace and, if necessary, converting it to a statutory inquiry if it is not meeting its commitments.

I will get the date for the noble Lord, Lord Paddick, and the Committee. The announcement from Dame Cressida Dick was on 20 October, some 11 days ago, but I will get the date on which Sir Stephen House made those comments.

[Baroness Chakrabarti (Lab)]

My Lords, I am hugely grateful to all Members of the Committee for the substance and tone of our proceedings. I am particularly grateful to the noble Lord, Lord Carlile, who dealt with our minor points of detailed difference with such grace. If I may say so, what I really took away from his comments was the sense of a loving father speaking of his daughters and the hope that we might one day return to a moment when all our daughters and granddaughters can trust the police. I was also struck by the way he worked with the young woman lawyer in trying to bring matters forward with such urgency. I thank him so much for that.

I agree with my noble friend Lord Hunt of Kings Heath that we have to get to the culture of obfuscation and denial—understandable human instincts when we want to protect our colleagues and the service that we love. I say to the noble Lord, Lord Carlile, that if it had been a scandal of equivalent proportions at the Bar, we would feel as uncomfortable as the noble Lord, Lord Paddick, so we understand these things.

I say to my noble friends that my Amendment 275 also deals with culture, but this is not about precise amendments—this is too important for that—but about trying to persuade the Government on both of these issues, of trust and confidence on the one hand and effective change on the other, with which we are attempting to deal in this whole group of amendments. This is about trying to persuade the Government on the power of arrest on the one hand and the inquiry and the training and vetting on the other.

The noble Baroness, Lady Jones of Moulsecoomb, made such an important point when she talked about that period of lockdown and the way that that has, in a sense, exacerbated every problem in the world but also problems around the fault-lines between hard law, guidance, perceptions of the law and trust in policing and what really is the right thing. It was in that lockdown that this atrocity was perpetrated.

Of course, she was also the Member of the Committee who pointed out that, just hours or days after the perpetrator was charged, someone made the insensitive decision to police that vigil in that way. Whoever did so must have known what we were yet to find out. The noble Baroness, Lady Jones, spoke of the young woman who now features in all of the videos and photographs. We know that, subsequently, she has been stalked by serving police officers on her Tinder account. So we really are in trouble, and we are trying to respond to a really significant problem of culture and trust in policing in this country. We are not fabricating this. No one thinks that; I know that we are all on the same page.

My noble friend Lady Blower was also clear that guidance will not be enough. We have gone too far for that in relation to any of the really serious specific issues that the noble Lord, Lord Carlile, and I and others have been trying to address in these amendments.

I thank the noble Lord, Lord Paddick, for everything that he is doing in this group and on the Bill more generally. I say to him and anyone who is now feeling very concerned about and suspicious of policing in this country that there is another side. I would like to believe that the noble Lord, Lord Paddick, still represents more of what is real and true in our policing service and in our democracy built on the rule of law. I hope that we can all listen to him and heed his practical advice. The word “gallant” is used for the military; there is no equivalent for the retired senior police officers in your Lordships’ House, but there are many retired commissioners and others here. But it is the noble Lord, Lord Paddick, who has been engaged with the Bill day after day and has spoken from the heart and from years of practical experience. We have to heed him. I was heartened by hearing him discuss, on Amendment 122, the approach where we do not want lone police officers driving off with arrestees, for the protection of either. That is best practice, but we now need to put that into hard law to reassure everyone and as a matter of good governance.

My noble friend Lord Coaker said passionately—and he is so right—that we have crossed a line in terms of public trust. Once lost, it is really hard to regain. That is why he made the point, again and again, that a full statutory and judge-led inquiry is part—just part—of trying to regain that trust. Can any of us imagine a Lawrence or Macpherson inquiry that was not judge-led and on a statutory footing, with all the iconography and symbolism of justice that comes with that?

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is a pleasure to support the noble Lord, Lord Paddick, in tabling this amendment, and it is the reason that we first met. When I heard about this commander down in Brixton who had an innovative way of dealing with cannabis possession, I went down there very quickly to meet him and find out exactly what he was doing, and I was very impressed.

He has laid out the rationale behind the amendment extremely thoroughly and with great insider knowledge, but I will throw in what the Green Party has been saying for the past 50 years. Our drugs policy is to create a regulated drug and alcohol market that is focused on safety and harm reduction, which our current policy is clearly not. In the interim, decriminalisation is important, but it will never be as effective at reducing crime and improving health outcomes as a fully regulated system.

Many police forces have de facto decriminalised cannabis. They have seen that it just does not work to keep on with this targeted racist behaviour. The amendment would be a very welcome step. At the moment, it is a gateway power which allows the state to interfere with people and search them for something that should not even be illegal. As the noble Lord, Lord Paddick, said very clearly, it alienates communities at the very point at which you need those communities to help the police with intelligence. I have been out with quite a few stop and search teams. I have seen it done well, but that was the exception. I have seen it done okay and done extremely badly. It is an issue of training as well as for the law itself, and it is used in discriminatory ways. This is a brilliant amendment. Well done to the noble Lord, Lord Paddick, for tabling it.

[Baroness Chakrabarti (Lab)]

My Lords, I speak to Amendment 276, to which I have added my name. Suspicionless stop and search is a significant problem for community relations in this country. It is a significant problem for trust in the police. In recent days, we have rightly given a great deal of time and attention on all sides of your Lordships’ House, including in this Committee, to trust and confidence on the part of women, and young women in particular, but we must not forget other aspects of broader trust and confidence, including the issue of young black men and policing.

Decades after the Lawrence inquiry, we still need to keep returning to this issue. No power or set of powers has probably done more to weigh against the strides made by the late Sir William Macpherson and by everyone across politics, including former Prime Minister, Theresa May, to try to address problems with stop and search. No power has been more problematic than that of suspicionless stop and search in general and Section 60 in particular.

This is really not a partisan issue. Your Lordships know that, long before I came to this House, I was a civil liberties campaigner and not popular with Governments of either stripe in relation to powers such as these. In my view, there has been an authoritarian arms race about law and order in this country for too long. No Government are perfect. No Opposition are perfect. This is a good moment to look at stop and search. There is no better parliamentarian to be leading us in this conversation than the noble Lord, Lord Paddick.

The problem with suspicionless stop and search is this. No human is perfect; therefore, no police officer is perfect. Stop and search, conducted by humans of other humans, even with reasonable suspicion, is problematic, but there is no choice if we want to combat crime and investigate offences that have happened or that might yet take place. We have to have powers to stop and search. They are problematic, even when based on reasonable suspicion because what is reasonable suspicion? Who do we think is going equipped? Who do we think meets the profile of somebody who committed an offence a few hours ago? Of course, it is hard for any citizen, including constables, to rid themselves of all the baggage that comes with being in this—or any—society. Those problems are so compounded when reasonable suspicion is taken out of the equation.

Section 60 of the Criminal Justice and Public Order Act gives the power—which is triggered by a senior police officer, but a police officer none the less—effectively to change the criminal law in an area for the period in which that power is triggered. In that particular part of town, there is effectively a suspicionless stop and search zone. We are often talking about urban areas, and areas with a very high density of people from certain communities. The noble Lord, Lord Paddick, can correct me if I am wrong. Within that area, young black men in particular know that that is a stop and search zone. Their first encounters with the police service are often very negative.

Because of the rise of the internet, mobile phone use and videos of incidents, this material is now there to be viewed. I have seen some very disturbing scenes of quite young boys being stopped and searched, without suspicion, on streets not many miles from here. These young boys and men do not have the protections that they have post-arrest in the police station. Arrest is based on reasonable suspicion. Officers usually stop a young man. The noble Lord, Lord Paddick, gave the statistics. If you are a young black man you are many more times likely to be stopped and searched than if you are a young white woman, let alone a middle-aged woman like me.

Sometimes officers will be situated in a particular place. I understand their reasons. They are worried about knife use, for example. Some young men are being stopped on a routine basis. Sometimes big, burly officers make a human wall around a boy of perhaps 13 or 14 years-old. I have seen the pictures. People in that community—bystanders, if it happens in the daytime—will be trying to remonstrate with the officers. They will be held back. This young man—13, 14 or 15 years-old —is having his first encounter with the authorities. He is frightened. He is behind this human wall of big, burly officers. There is not even reasonable suspicion that he has done something wrong.

It seems to me that this is very dangerous—and it is not an occasion where I can even blame the police. It is an occasion when I have to look to the statute book itself, because this is about legislators, not police officers. I have been critical in other debates, and I am afraid that I will have to be critical about some decisions that the police have made. But this is a legislative problem, because legislators from both major parties have allowed this regime to be triggered for suspicionless stop and search, and it has created problems over many years. It really is time to address this.

This seems like a radical probing amendment from the noble Lord, Lord Paddick, but if Section 60 were removed from the statute book, what would be the consequence? There would still be ordinary, democratic, rule of law-based powers to stop and search with reasonable suspicion. That is a fairly low threshold in any event, I would argue, but this ability and power to designate particular areas—everybody knows where those areas are and who is affected in them—would go. I cannot think of a more positive signal and progressive step for any Government, any party and any legislator who cares about race relations in this country, and cares about rebuilding trust in policing and the rule of law.

So once more I find myself thanking the noble Lord, Lord Paddick, and I feel that I will do so again a few more times in this Committee.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have some questions for the Government on Amendment 129, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones of Moulsecoomb.

Drugs policy and the drugs trade have come up in our debates on this Bill as part of the debate on the serious violence reduction duty, particularly regarding child exploitation and county lines. It will come up again shortly when we look at the groups of amendments on road safety and dangerous driving under the influence of drugs and alcohol. There is a complexity of links in multiple areas of policy, be they poverty, health or criminal justice. On the serious violence reduction duty, the Government’s stated aim is to reduce serious violence through a public health approach. So my question to the Minister is: what work is being done alongside those plans to look at a coherent public health approach to drugs policy? As with serious violence, there needs to be a focus on what reduces harm, not just what deals with the symptoms.

Amendment 129 is specifically about removing the power of the police to search people for drugs for personal use only. The noble Lord, Lord Paddick, gave a very informative history lesson, if you like, on his part in the “no arrest” policy in Brixton. I thought I might update what he was saying with my perception as a magistrate who sits in criminal and youth courts in London. I can say with reasonable confidence that I very rarely see in front of me, for the possession of class B drugs alone, either a youth or an adult who is of good character. I really cannot remember the last time I saw that in a court in which I was sitting. In my experience, when that is charged, other matters are charged as well, or the amount of drugs found on the person is at a much higher level but, nevertheless, the CPS chooses to charge that person only with possession rather than possession with intent to supply. Nevertheless, it is an interesting amendment, and the noble Lord raised a number of interesting points about the appropriateness of that power of the police under Amendment 129.

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[Baroness Chakrabarti (Lab)]

Could I put an ethical and constitutional question to my noble friend, who is both an experienced parliamentarian and a magistrate? When I go to the airport, I understand that I shall be subject to some search, and I have no problem with that—first, because I understand that an airport is a very sensitive place and, secondly, because everybody will be subject to the same search as me. Therefore, I feel no disgruntlement. Equally, with ordinary stop and search powers, if I am stopped and searched on reasonable suspicion of a criminal offence, I may know that I am completely innocent but I shall understand that I have been stopped and searched on reasonable suspicion of a criminal offence.

What is the ethical and constitutional justification for stop and search without suspicion, when everybody is not stopped and searched, as at the airport? If not a suspect and if not everybody, who then? My fear is that, subject to the answer that my noble friend—and, I hope, in due course, the Minister—will give, the answer is that that in-between stop and search, a suspicion under Section 60-type stop and search, is almost inevitably an arbitrary and therefore potentially discriminatory stop and search.

[Earl Attlee (Con)]

The noble Lord, Lord Ponsonby, made a very interesting speech. For about the first 40 years of my life, I lived in north-west London and—on this discrimination point—I have never been stopped and searched by the police. I have had my vehicle stopped a few times, but I can perfectly well understand why the police did it. So it is quite an interesting point on discrimination.

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As part of our Section 60 pilot, the Government asked the College of Policing to update its stop and search guidance to ensure fair and proportionate use. The updated guidance was published in July 2020 and provides best-practice examples for forces to use on community engagement and scrutiny. We expect that forces will follow the guidance in their use of the powers. The Government will always give the police the tools they need to tackle serious violence and other crimes, and I do not think it is in the best interests of public safety to repeal these important powers. I hope that, with those words, the noble Lord will be happy to withdraw his amendment.

[Baroness Chakrabarti (Lab)]

Before the Minister sits down, will she briefly address the question I put to my noble friend Lord Ponsonby, because I think it is crucial to what a legitimate use of Section 60 looks like. If I am a young man who feels I might be particularly affected by this, and after a crime there is an area that has been designated and cordoned off and everybody is being stopped and searched when they enter those two streets—like at the airport—I can understand that. Similarly, if I am stopped and searched under “reasonable suspicion” powers, I understand: I may be innocent, but there is a reasonable suspicion that I meet the profile of the suspect, or I have otherwise given rise to suspicion in my conduct. But how is Section 60 ever to be used in a way that is not arbitrary, and therefore most likely discriminatory? Why have I been targeted for a suspicionless search? How can I be legitimately targeted for a suspicionless search?

[Baroness Williams of Trafford (Con)]

Of course, Section 60 is based on local policing intelligence in specific local areas. The noble Baroness has already pointed that out. I have talked about the safeguards, including statutory codes of practice, the use of body-worn video and external scrutiny; I will also talk about the use of data. The Home Office collects more data on stop and search than ever before. The data is published online, allowing local scrutiny groups, PCCs and others to hold forces to account and we discuss it with the relative NPCC leads in forces to understand why disparities occur, if they occur. HMICFRS inspects forces’ stop and search data annually, and extensive data is also published to increase trust and transparency. So, there are a number of things on which we test ourselves and are scrutinised to ensure that stop and search is not being used in an illegal and discriminatory way.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I congratulate the Lib Dem and Labour Front Benches on tabling these amendments. I had to laugh when I saw them, because you sort of assume you can expect duty of candour; it really should not have to be emphasised in the way that it has been here.

I have had a number of clashes—perhaps I should say experiences—with the police not exercising candour in situations where they really ought to have done. Examples include freedom of information requests, subject action requests, legal proceedings, police complaints and the Independent Office for Police Conduct. The end result of all these processes, which others have gone through as well, has been a great deal of frustration and anger and very little progress. I trusted the police less; I am sure most people would find this to be their experience. Rather than feeling that wrongdoing had been put right and the truth exposed, I felt there were cover-ups.

Obviously, if we pass this amendment, we ought to expect candour in the other place as well, but I feel that would be a step too far. I am afraid that the Government are not very honest—in fact, they are duplicitous. The Minister—the noble Lord, Lord Wolfson—talked earlier about what they have done today as being morally right, but I think that is absolutely wrong. It is wrong of him even to say that; it was not morally right. Coming back to the amendment, I say that a duty of candour is something we ought to expect from our Government, but we absolutely cannot. Therefore I am not very optimistic about these amendments, but the Government really should put them in the Bill.

[Baroness Chakrabarti (Lab)]

My Lords, I am more optimistic about these amendments than the noble Baroness, Lady Jones of Moulsecoomb, and want to help her find some optimism. However, I first pay tribute to the noble Lord, Lord Paddick. I feel that his speech is historic and will be remembered in this country for a very long time. It must have been so hard to make; we all know that it is hard to speak out of turn in general, but it is particularly hard when you are speaking about your own profession, service, career and friends. I hope that Members across this Committee will share that tribute to him.

I hope the noble Lord will forgive me—he has trailed this already—that in terms of these amendments we have to prefer that tabled by my noble friend Lord Rosser. I congratulate my noble friend on not just his speech but this amendment, which was no doubt prepared with his colleagues and team. This is why I am optimistic. I do not believe that the Minister—the noble Baroness, Lady Williams—is unsympathetic on this issue. There is not really a problem with something like the amendment proposed by my noble friend, not least because he anticipates the potential challenges that might come the other way. For example, there is of course a need to protect privacy, data protection and national security. Any duty of candour would have to be subject to those things, but my noble friend has already done so much of the thinking. The Minister also has the considerable resources and expertise of government, the government legal service and parliamentary counsel at her disposal, but I remind her that the Daniel Morgan review was commissioned by a Conservative Home Secretary, who had been and gone as Prime Minister before the review was published, with its excoriating comments, some of which I repeated on Monday evening.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

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

Moved by

[Baroness Chakrabarti]

132B: After Clause 54, insert the following new Clause—
“Commissioning of police weapons, surveillance equipment or investigatory technology
(1) Save as provided for by regulations under this section or as specifically authorised under other legislation, no constable, police force, police and crime commissioner or other policing body may commission the development or deployment of weapons, surveillance equipment or investigatory technology.(2) The Secretary of State may by regulations—(a) authorise a relevant policing body to commission the development or deployment of weapons, surveillance equipment or investigatory technology specified in the regulations;(b) specify technologies or providers that may or may not be commissioned by any relevant policing body;(c) prescribe conditions that must be met by any technologies or providers if they are to be commissioned by any relevant policing body;(d) authorise a person, or panel of persons, to monitor such commissioning as is authorised and compliance with such conditions as are prescribed.(3) Regulations under this section must be made by statutory instrument.(4) Regulations under this section—(a) may make different provision for different purposes or areas;(b) may make financial, consequential, supplementary, incidental, transitional, transitory or saving provision.(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

[Baroness Chakrabarti (Lab)]

My Lords, Amendment 132B—a probing amendment—is in my name and that of my noble friend Lord Hain. The Committee will know that everyone here is engaged with scrutiny of the present Bill because we believe that police powers, criminal justice measures and the criminal law need to be on a clear and, for the most part, statutory footing—certainly on a clear legal footing. A brief skim of this very hefty piece of legislation will throw up references to well-established and legendary Acts of Parliament. The Police and Criminal Evidence Act is an obvious one, as is the Public Order Act; the list goes on. These measures, over the years, have come to govern police powers in particular: powers of arrest, investigatory powers, and so on.

However, because we are nearly a quarter into the 21st century, so much technological development—some of it just as intrusive as traditional powers of arrest and subsequent investigatory powers—has proceeded apace. I, for one, despite having been around this territory for a couple of decades, am not clear about the statutory footing for much of it. That is really the legal and constitutional basis for this probe, if I might put it like that. In a moment, my noble friend Lord Hain will use a more specific example that spurred us to table this amendment, even though that was only a couple of days ago.

In a sense, this is not that dissimilar to the amendment that the noble Lord, Lord Moylan, and many of his friends on the Benches opposite debated a few days ago. That was about non-crime information sitting around on databases, potentially to the detriment of citizens. His cry then, supported vociferously by people from across the Committee, but particularly that side, was that it must be on a statutory footing. The same must be true as a matter of law, not least the law of the European Convention on Human Rights but constitutional principle, in relation to the commissioning of weapons, surveillance equipment, investigatory technology and new algorithmic technology—much of which is currently under investigation by the new House of Lords Justice and Home Affairs Committee, ably chaired by the noble Baroness, Lady Hamwee, who is in her place, and comprising many illustrious Members of your Lordships’ House.

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[Baroness Williams of Trafford (Con)]

If the noble Baroness wants to elucidate further—perhaps not in the Committee—on those issues, I would be very happy to engage with her on them. The only point I was making is that they are elected.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all Members of the Committee who spoke on this amendment. I want to be clear: it was a probe, and my ideal scenario would not even be for a regulation-making power in a great big criminal justice Act, it would be an Act of Parliament itself. I say to the Minister—and I mean this genuinely in a constructive spirit—that it was a Conservative Government in 1984 who introduced what is now the Police and Criminal Evidence Act.

What I am really saying is that there is so much of this kit and technology developing apace that we need something at least equivalent to the Police and Criminal Evidence Act to put questions of commissioning and regulation—of who decides what the tests are and what the accountability is in relation to all this development and commissioning of this new technology in the policing space—in one Act of Parliament. Again, it is not a partisan point; I would be saying this whoever the Government were. That was a really important piece of legislation in 1984, and the time has come for something like it. There happens to be another Conservative Government, and I think something like that will come.

What I said to the noble Lord, Lord Wolfson—sitting down—I said a couple of years ago to his predecessor: what is the legal basis of telephone extraction? I was told data protection and consent, or something of that kind. Here we are now, a couple of years later, in response to concerns, and there is going to be under this Bill a clear statutory framework.

[Baroness Williams of Trafford (Con)]

I hope the noble Baroness does not mind me intervening, but I again refer her to the Science and Technology Committee, because the Policing Minister talked about gaps in the legislation. In fact, the honourable Member Graham Stringer was pleading for legislation, and I refer her to the comments the Policing Minister made in that regard.

[Baroness Chakrabarti (Lab)]

I thank the Minister for that, and I will certainly go back to look at that. When she made her comments, I asked about the statutory framework, the legal basis. A list came back which began with the common law, the Data Protection Act, the Human Rights Act and the Equality Act—all good things—but my suggestion is that, as a matter of good governance, sound regulation and accessibility for the public—this is not about just civil liberties concerns and privacy but public money and accountability—all this regulation should be under one framework. That way there will be consistency across all 46 police forces in relation to where the commissioning should be, which providers are considered to be ethical and which are not, how they are to behave and what the conditions are, and then, once the technology has been developed, how it is to be deployed. I do not think it is asking a lot to suggest that this should all be under a single statutory framework. It would be something that the Minister and her Government could be proud of, and there could be a regulatory framework that could last for many decades, just as, broadly speaking, the Police and Criminal Evidence Act did.

I thank all noble Lords who spoke. To go back to my noble friend Lady Bryan of Partick’s point, where is the statutory underpinning of a National Police Air Service? Where is the Act says that says “there shall be a National Police Air Service”? I am not aware of it. Where is the Act of Parliament that set up a national College of Policing? I am not aware of it. It may exist somewhere, but I have not found it and I do not see it. I am not doing this to score points; I think it would be good governance and good legislation from which many generations and many Governments in future might benefit.

With that, and with my gratitude for taking this seriously, I hope that I have planted a seed for future thinking. The committee chaired by the noble Baroness, Lady Hamwee, on which I have the privilege to sit, will no doubt develop this conversation with the Minister in due course. I thank everyone for their patience and engagement, and I beg leave to withdraw the amendment.

Amendment 132B withdrawn.

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[Earl Attlee (Con)]

When the noble Lord looks at my speech carefully, he will see I said there is legitimate economic activity for Travellers. I accept that plenty of Travellers engage exclusively in legitimate economic activity. I decided not to tease the noble Lord and ask him who he thought was stealing all the electrical cables from the railway system.

[Baroness Chakrabarti (Lab)]

My Lords, the lateness of the hour and eloquence of many of the speeches tonight mean that I can be brief, but I feel compelled to say a few words in this debate. First, to the noble Earl opposite, to cite particular crimes committed by particular people of whichever community is no justification for a measure that targets all members of that community. We could all cite the statistics of people in prison. We know, for example, there is a disproportionate percentage of black and brown people in prison. Would that justify further criminalisation and demonisation of people who look more like me and less like the noble Earl? I think not.

[Earl Attlee (Con)]

When the noble Baroness looks at my speech in Hansard, she will see that I am arguing, as I will in relation to my Amendment 241, that we need to do something useful with people when they are in prison. The system we have does not address their needs.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Earl for that. Gypsy, Roma and Traveller people are a tiny percentage of our population in the United Kingdom. Undoubtedly, they are one of the most demonised minorities, not just in our nations, but historically and in Europe. We would not have a post-World War II human rights framework but for atrocities perpetrated against minorities, including Gypsy and Roma people.

It is very upsetting to look at Part 4 of the Bill. It is a disgrace. I am sorry to have to say this, but Part 4 is an inherently discriminatory piece of legislation. It is as discriminatory as previous ignominious legislation targeting east African Asians or gay people. If it passes in its present form it will be notorious. I have no doubt at all that it violates Articles 8 and 14 of the convention, at the very least, as other noble Lords have said. I praise the eloquence and perseverance of my noble friend Lady Whitaker in particular, and of many noble Lords and right reverent Prelates.

They know whereof they speak: to persecute people for their nomadic lifestyle—to criminalise the Traveller way of life—is the equivalent, I have no hesitation in saying, of criminalising people for their dress, their food or their prayers. It is a significant attack on their way of life to criminalise them for stopping in places when they have nowhere else to stop. Part 4 is that despicable. I signed one of the amendments; I could have signed any of them. This part, however, should not stand in any primary legislation in a civilised country.

This bit of the Bill is being put forward as part of a very populist and nasty culture war, to use the phrase of the noble Baroness, Lady Jones. It is very dangerous. As the honourable Member for Maidstone, who has not been in this Chamber—perhaps one day she will come—but whose name has been mentioned at many points today, said, be careful about the difference, the fine line, between being popular and being populist. We might well remember that when we consider this part on Report.

My final thought is that in a former role I once had the privilege of chairing a meeting—it was, as I recall, at the Conservative Party conference. The audience was very sceptical about the value of human rights, and the Human Rights Act in particular. It was, potentially, a tricky meeting. I chaired a speaker who was addressing concerns in the audience about prisoners having human rights. Again, that is not a popular group in our society—prisoners and human rights is a bad cocktail. He was saying that prisoners have human rights and that some of them even thought that they had a right to a flushing toilet. What a disgrace that was—the audience was very upset and wanted to scrap the Human Rights Act, as some people still do. This eloquent and learned speaker said that it was very simple to deal with the problem: just fix the loo.

Fix the loo—do not demonise the prisoner, do not scrap the Human Rights Act, just fix the problem that is giving rise to the concern. In this case the fix would be to give people stopping places and the support that they need. The criminal law will deal with burglary and with people using their dogs to terrorise people, and will protect the innocent farmer. I wonder whether the eloquent speaker and passionate defender of the Human Rights Act who spoke at that meeting will remember the occasion, as I always have. He was, of course, the noble and learned Lord, Lord Garnier.

[Lord Garnier (Con)]

I remember that remark very well, and I adhere to everything that I said then. I hope that the noble Baroness is not setting up an Aunt Sally. The speech that I gave a moment ago did not criticise the proponents of these amendments. It criticised much of the content of Part 4 of the Bill. All I asked was that in seeking to provide a solution for one group of people we did not create a problem for another group.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble and learned Lord, Lord Garnier, for that. There is ample criminal law and ample tort law for nuisance. There are ample laws to protect people from burglary, nuisance and so on. This measure, however, is targeted. The euphemism is so thin: “without permission, with vehicles”. I wonder who we are talking about there. The euphemism makes this racial discrimination even more obscene.

[Lord Paddick (LD)]

My Lords, we strongly support all these amendments. As the noble Baroness, Lady Whitaker, and my noble friend Lady Bakewell of Hardington Mandeville said, the crucial point here is that if legal sites were provided it is unlikely that these provisions would even be in the Bill. Having adequate sites is likely to be cheaper than the cost of taking legal action against those who have no option other than to trespass. As the right reverend Prelate the Bishop of London and the noble Baroness, Lady Lister of Burtersett, said, the Bill’s provisions, whether by accident or design, will very clearly disproportionately impact an already vulnerable minority: the Roma, Gypsy and Traveller communities. What would happen if the Government and local authorities made it a criminal offence for motorists to park their cars illegally and then did not provide enough spaces for motorists to park legally? There would be uproar.

My noble friends Lady Brinton and Lady Bakewell told the Committee from their extensive experience about hostility towards Gypsy, Roma and Traveller communities. I have to say to the noble Earl, Lord Attlee, that when he reads back what he said in Hansard it will be open to interpretation that, for every crime he described where he could not say who the perpetrator was, he implied that all those crimes were committed by Travellers, without any evidence that they were responsible for those particular crimes. That is why there is so much hostility towards these communities because speeches such as that can be misinterpreted as, “The noble Earl is saying that those communities are responsible for all these crimes, even the ones where we do not know who committed them.”

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It is also wrong to assume that no criminal activities take place on official sites as well—

[Baroness Chakrabarti (Lab)]

Will my noble friend give way? He has just come to a very important part of his remarks. Every community is capable of committing crime, and therefore we have criminal and civil laws that apply to all communities rather than specific measures targeted in a discriminatory fashion.

[Lord Young of Norwood Green (Lab)]

I thank the noble Baroness, but I think I made it clear in my contribution that I do not believe the Government’s proposals are right or necessary. Do not find a difference with me on those grounds, because it is not what I am suggesting.

If we really want to find a solution to these problems—I think one of the right reverend Prelates made a point about discrimination in education—lots of schools take real pride and make an effort in accommodating Gypsy, Roma and Traveller children. They are the examples of best practice which the Government should encourage. It is not true to say that all Gypsy, Roma and Travellers are illiterate and innumerate—far from it. In fact, one person I met who impressed me was a young woman from a Traveller family who had taken herself through university and become a teacher and an absolute credit to her community. We should beware of sweeping generalisations. They do not help us in these circumstances.

I am aware of the lateness of the hour, but I wanted to make this contribution. I like to think that my activities in support of the Gypsy, Roma and Traveller group will not cause me to be labelled as unfairly prejudiced or discriminatory. Ever since I was capable of doing it, I have fought all my life against any form of discrimination, whether it is anti-Semitism, racism or discrimination against Gypsy, Roma and Traveller groups.

My plea to the Minister when she gets to her feet is to take into account the fact that there are some genuine concerns from a number of us about the nature of the government proposals and whether they will help the situation and are necessary—or whether the existing laws are such. I also do not believe that the nature of the amendments, if I take that of my noble friend Lord Rosser as an example, is a solution to the problem. That is why I suggest that, before we reach Report, the Minister convene a meeting, which might enable us to find a bit more common ground than appears to exist in the Chamber at the moment.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

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

[Baroness Chakrabarti (Lab)]

My Lords, there is so much to get through. First, I disagree with the noble and learned Lord, Lord Garnier; secondly, I agree with the noble Baroness, Lady Brinton, about the clause not standing part.

The noble and learned Lord, Lord Garnier, has partly pre-empted my concern regarding his Amendment 150. Some of us in this Committee and more generally in your Lordships’ House have an allergy to reverse burdens in the criminal law because they generally go against the golden thread of English justice: that it is for the prosecution to prove its case beyond reasonable doubt and not for defendants to prove their innocence. That is a general principle which some of us hold dear. The noble and learned Lord, Lord Garnier, is quite right that over many years that principle has been eroded.

He referred to a number of regulatory offences, which I take to be offences in a confined area of privilege. Regulatory offences are appropriate for activities that might even be licensed, such as driving a vehicle or practising medicine. Regulatory offences are not the right analogy to make with just going about your life, including as a citizen who seeks to protest against issues such as GM foods or climate catastrophe. Therefore, his analogy seems quite wrongheaded. From a human rights perspective, he is aggravating the pre-existing damage of the problematic offence of aggravated trespass.

Trespass and nuisance ought generally to be a civil matter. Trespass is usually dealt with and resolved between reasonable citizens without recourse to law. I believe in civil legal aid if necessary, even though it has been all but obliterated in this country, but neighbour disputes generally ought to be a matter between me and my neighbour, not a matter for the criminal law, unless what my neighbour is doing to me crosses a line that offends all in society. I have a general problem with criminalising the civil law, but worse than that, in the context of aggravated trespass—aggravated by the intervention of the noble and learned Lord, Lord Garnier—certain types of trespass are singled out for criminal treatment, are they not? It is not the trespass of my neighbour who is polluting my land or building on my land, cutting over the margins of the boundary for reasons of profit or greed. It is the trespass of my neighbour who comes on to my land to protest and obstruct—for example, an environmental protestor—because in doing damage to my land I am damaging the environment. Therefore, with respect, the noble and learned Lord, Lord Garnier, is once more prosecuting a culture war in which people he may or may not disagree with are being treated worse in relation to their freedom of expression or, potentially, their property rights, than those who choose to pollute the land, for example. In my view, that is a mistake.

Finally on Amendment 150—again, to be fair, this has been pre-empted by the noble and learned Lord—subsection (a), on the reverse burden defence, suggests that in the offence of aggravated trespass, it is for the defendant to prove that they were not trespassing. That is astonishing: it is like saying that in my defence for assault, I must demonstrate to the civil standard that it was not me who assaulted my noble friend—who was sitting there quite innocently until I metaphorically assaulted him.

That is really quite rich indeed, and shows the underlying thinking here: some people, whose opinions are clearly not considered worthy by some Members of this Committee, are to be guilty until proven innocent, and they seem, in this context, to be demonstrators. In the broader context, in this Part of the Bill, the guilty ones are of course Travellers—as a job lot. This was put so well by the noble Baroness, Lady Brinton, and I will not repeat her reasons, save to say that there is something so inherently unattractive about discriminating against a particular group. We have seen it in many societies, including in our own over so many years. I thought we were in a better place than this.

If people are committing burglaries, let them be prosecuted for burglary. If people are perpetrating nuisances, let them be dealt with like anyone else; there are burglaries in urban and rural areas and there are nuisances everywhere. Let everyone be dealt with equally. Please do not single out one of the most vulnerable minorities, in size, economic power and everything else; do not single out a particular community for less favourable, targeted and demonising treatment. That is essentially why I do not think that Clause 63 should stand part of the Bill.

[Viscount Hailsham (Con)]

My Lords, may I just intervene very briefly? I agree with the noble Baroness when she says that, in general, trespass should be a civil remedy. I am absolutely clear that she is right about that, but it is important to keep in mind that securing a civil remedy is not a rapid process: it really takes quite a long time to get the required order from a court. I represented a rural constituency for more than 30 years, and I know that the kind of trespass to which my noble and learned friend is addressing his amendment, which is encompassed in Clause 63, causes an immense amount of distress to the rural community. There is a very special reason to abrogate the general rule, which does of course make the civil remedy the appropriate one for trespass. I commend this provision to the Committee, subject to the amendment, on which my noble and learned friend is entirely right.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

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

[Baroness Chakrabarti (Lab)]

Does the Minister not agree that good law is about a combination of rules and discretion? I quite understand that he is here to advocate his new scheme and approach, which the Government have considered and think is the way forward, but why not have a little residual discretion for some of the examples that the noble Lord, Lord Paddick, gave? The Minister said that a simple caution is really a bare warning but, occasionally, is not a bare warning better than nothing at all in terms of a police officer, in reality—sometimes underresourced, in difficult times—doing his job in the community?

Why do we have to be so rigid that we make a simple caution—which of course is not ideal and does not have the diversions and other things suggested— impossible to give? In circumstance where there is a student who is annoyingly drunk but has not really harmed anybody—as in the example given—why not allow a bare warning rather than no warning and no action at all?

[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 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.

[Baroness Chakrabarti (Lab)]

Forgive me, but I sense an element of unworldliness about this. If it is appropriate in a given case for there to be just words spoken and a warning, and it would be proportionate, do we really need the constable in question to go through the process of the recording and the monitoring?

I say no more on that but, if the Committee will indulge me, I would like to mention that Mr Gareth Dowling, the doorkeeper, is retiring today after some years of service and I hope that the Committee, if not the whole House, will join me in congratulating him and wishing him all the best for the future.

[Noble Lords]

Hear, hear.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I am very interested in what the noble Lord, Lord Carlile, has just said. Although, again, I am not strictly following the amendment of the noble Lord, Lord Paddick, I very strongly support it and ask the Government to think again.

I happen to have had some limited personal experience of young people who had offended between the ages of 12 and 18 and who were acting for youth groups, mentoring other young people to prevent them from offending, because they had learned. I have met half a dozen of them. All were black and doing valuable work in their 20s, but were having the most appalling difficulty in finding a decent job that would be commensurate with their undoubted abilities. I will tell you the sort of case that happens. A child of 14 won a prize at school and took it home to show his family. His elder brother threw it away and said, “Don’t be so stupid. Why don’t you behave like us? That’s an utter waste of time.” He then went on to offend, and, aged 19 or 20, he told me that he had learned that this did not pay and that he had to lead a proper life. He was doing the most wonderful job, teaching other young black people, under the age of 18, how not to offend. It is crucial that what the noble Lord, Lord Carlile, has just said is picked up by the Government and taken forward.

[Baroness Chakrabarti (Lab)]

My Lords, I have to agree with the three Members of the Committee who have just spoken. I will deal with the two proposals in turn, first that relating to children and their convictions being spent when they turn 18. That is absolutely compelling as an argument. I have just one thing to add: there is a huge differential in the experiences of different children in our communities. For example, there are looked-after children—the state not being the best parent—who will be prosecuted and will attract convictions, before their majority, for bad behaviour that simply does not get prosecuted when a child behaves in that way in the family home. This could be common assault or criminal damage. It is common practice for looked-after children to be in the criminal justice system in circumstances where their peers elsewhere would not. To not to get a second chance on turning 18 is a terrible indictment on our society.

I encourage the Minister to take the expert advice from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, with all his experience of penal reform, and to do something about this. Things are compounded still by there being no right to be forgotten when it comes to the internet. The law has to push back even harder to try to rehabilitate people, particularly children, in the light of so much of our lives and our histories being on the internet.

I shall respond briefly to the noble Lord, Lord Paddick. A non-court disposal administered initially by a police officer should be immediately spent, as a matter of good practice but also as a matter of principle. If someone has given up the opportunity to have the matter dealt with in court, that should happen in many cases. However, there should be a benefit, and that should be that the disposal is immediately spent. It is an incentive to engage with it, but it is also right in principle. The Rehabilitation of Offenders Act 1974 was a wonderful thing, but we are a long way from its ethos and principles. It has been undermined by an exemption order that has grown, in my experience, every year and it has been undermined by the growth and rise of the internet. This Committee really needs to listen to the noble Lords, Lord Carlile and Lord Paddick, in their proposals, and push back very hard in the opposite direction.

[Viscount Hailsham (Con)]

My Lords, I will make a very brief point in support of what has just been said by the noble Baroness and the noble and learned Baroness. There are a number of professions where you have to establish that you are a fit and proper person. I act as a legal assessor to the Nursing and Midwifery Council, and I am aware of the registration process: you have to assert that you are a fit and proper person. I can see that a caution of the kind that we have been discussing might stand in the way of a registration being effective, and that would be a great tragedy.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

The purpose of a minimum sentence is that unless the threshold is met—we will debate in another group what that threshold should be—the minimum sentence is imposed. There is nothing between us on how it works; there obviously is on whether it is a good idea. I hope that is fair.

[Baroness Chakrabarti (Lab)]

I am sorry to interrupt the Minister but in sentencing law and in the criminal justice system, minimum sentences are currently referred to as “mandatory minimum sentences”, subject to thresholds and exceptions such as exceptional circumstances. That is a very long tradition. As lawyers we must be fair to lay Members of the Committee as well. It is unfair to say that the noble Baroness, Lady Jones, has missed the point. It is very common in the parlance of sentencing law and criminal justice law to refer to minimum sentences as “mandatory minimum sentences”, subject to whatever thresholds and exceptions there are.

[The Lord Bishop of Durham]

That is exactly what it says in the paperwork we have.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

It is not a mandatory sentence, because you can impose more. Let us be clear: it is a minimum sentence, which has to be imposed unless the exceptions are met. To take it outside this clause, if you have a minimum sentence of two years unless there is an exception, the first question is: is the exception met? If it is not, you have to give at least two years. You do not have to give two years; you could give two and a half years. I am not sure I am saying anything different. Reference has been made to America. In other jurisdictions, when they say mandatory, it can be mandatory without exceptional circumstances or any other provision. I am not sure we are saying anything different. I think we are all clear about what we mean. I would prefer to use the phrase “a minimum sentence”, which is the phrase used in the Bill, unless the exception applies.

[Baroness Chakrabarti (Lab)]

I am so sorry to elongate this, but it is important. The Minister, sitting in a Government with a massive majority, gets to rewrite the statute book, but he does not get to change terms that are well understood by lawyers and sentencers in this jurisdiction and others. He is proposing a mandatory minimum sentence subject to certain exceptions. The common parlance—perhaps not on the street, but in the profession and on the Bench—is that this is a mandatory minimum sentence. He can argue for it and say that it is good policy, but it is not helpful to the Committee, anyone outside it or anyone reading Hansard for us to suggest that this is something totally different from a mandatory minimum sentence subject to exceptional circumstances.

[Lord Wolfson of Tredegar (Con)]

I am really not sure that we are saying anything different. As I said, we will come in a later group to how many offenders do not get the minimum sentence with some sentences. There must come a point at which so many offenders do not get it that using the word “mandatory” to describe it is itself misleading. I suggest we are better off sticking to the terms used in the Bill, which are both accurate and appropriate.

I underline the point that the change we are proposing does not mean that all 16 and 17 year-olds will receive the minimum sentence. The courts will retain the discretion not to apply the minimum where there are exceptional circumstances which relate to either the offender or the offence and which would justify doing so.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is a privilege to follow the right reverend Prelate and precede, I think, the noble Lord over there. I just want to say, it all may have been said, but not by me. None the less, I will be brief because—it is not often I feel like saying this—it has been an absolute privilege to listen to today’s debate. Every point of morality, sensible practice and detail on this compelling menu of amendments has been made.

I want to make the briefest of pleas to the Minister, who has been a distinguished commercial barrister for many years; I, by contrast, have been a humble student of the miserable world of justice and home affairs. I also want to make a political point, of all things, in a debate that has been so rarely elevated above politics. I believe that today presents the beginning of an historic opportunity in our politics in this country. For most of my adult life—indeed, pretty much all of it—we have been embroiled in an arms race, particularly around incarceration, that has put us on a path which is more like the American one than a sensible path from anywhere else, let alone the path we might be on. How often do you hear someone of the stature of my noble friend Lord Blunkett say, “This was a mistake. Hands up; it is a fair cop. I am offering a bipartisan hand to help set this right”? I have not heard anything like that in justice and home affairs in my time as a student of these issues.

What is more, this is about rectifying a mistake that the Minister’s party already accepts was a mistake; that is why these sentences are no longer available to new offenders. The Minister, his party and his Government ought to be half way—indeed, three-quarters of the way—there already, in rectifying what my friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, called “the great stain”. We are so close. The Minister has an historic opportunity to begin to put this right. How often does an opportunity like that come about? The point about this stain is that it is wrong in itself, and it is terrible for all those hopeless people whom the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Burt, and other noble Lords mentioned. It is also a symbol of both injustice and the arms race I mentioned. That is why this opportunity is so precious and important.

It is ever harder to justify an unelected second Chamber—your Lordships’ House—nearly a quarter of the way into the 21st century but, if the Minister listens to the debate and does not slam the door closed to reason, today might just be enough for the moment.

[Lord Ramsbotham (CB)]

My Lords, I strongly support all the amendments in this group, not least because the cause of prisoners serving indeterminate sentences has been languishing ever since such sentences were formally abolished by LASPO in 2012.

I commend the tireless work of my noble and learned friend Lord Brown of Eaton-under-Heywood on their behalf. For nearly 27 years, since my first inspection as Chief Inspector of Prisons, I have been campaigning for changes to be made to the operational management structure of the Prison Service to bring it in line with the practice in every business, hospital or school: to appoint named people responsible and accountable for particular functions within the organisation concerned.

In the case of prisons, I have campaigned for separate directors to be appointed for every type of prison, and for certain types of prisoners—lifers, sex offenders, women, young offenders, the elderly, foreign nationals, and those serving indeterminate sentences. Imagine how easy it would be for Ministers interested in IPP, for example, to send for the relevant director and question him or her about what was happening or not happening to all prisoners in that category. I had hoped that somewhere in the 298 pages of this monstrous Bill, space might have been found for something so practical. However, as that is clearly not going to happen, I stringently commend the change to the Minister.

--- Later in debate ---

[Lord Ramsbotham (CB)]

My Lords, I rise to support Amendments 210 and 211, and congratulate the noble Earl, Lord Attlee, and the noble Lord, Lord Hodgson, on their introductions.

I am at one with the noble Baroness, Lady Lister, on this issue. When he was Prisons Minister, Rory Stewart once attended a conference on the issue, organised by Nacro, which as the noble Lord, Lord Hodgson, said, has led on this for a long time. Some brave prison governors risk censure by using release on temporary licence to avoid release on Fridays. I have never understood why the Department for Work and Pensions does not make staff from jobcentres go into prisons to work out a prisoner’s entitlement to benefits, including universal credit, so that they do not leave prison with a discharge grant, but with the first payment of whatever benefit they are entitled to. In that way, they can pick up the next benefit the next week rather than having to wait six weeks following release before they can apply.

In many ways, the Government are setting people up to fail by, first, releasing prisoners on Fridays and, secondly, insisting on a six-week delay; I defy anyone to exist all that time even on an increased discharge grant.

[Baroness Chakrabarti (Lab)]

My Lords, I am sure that the fabulous quintet of noble Lords led by the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson of Astley Abbotts, and so on, will be delighted by that endorsement from the noble Lord, Lord Ramsbotham, as there has never been a clearer or braver voice for penal reform in my adult lifetime.

I briefly add my own three cheers for these two amendments and for everything that goes with them. They have highlighted the piteous state of provision for prisoners from the moment of their release, quite often into destitution, and a total deficit of support. I hope that that will be taken on board, as well as the precise amendment, by the Minister in his reply. Notwithstanding comments made during the last group that law is not everything and practice is important, sometimes law is very important in itself, particularly release dates because they have to be enshrined in law. So, while there is no doubt that other provision, referred to by my noble friend Lady Lister of Burtersett and others, needs to be made, this matter requires urgent legislative attention. I think I agree with the noble Earl that, on reflection, something more like Amendment 211 is probably better.

To deal with the concern of my noble friend Lady Lister about Scotland would not take much, would it? Off the top of my head—forgive me, parliamentary counsel will do better—the “may” in Amendment 211 becomes “must” and the words

“at the discretion of the governor of the prison”

are moved to the gap between “on a day” and

“within the previous five working days”.

In other words, the discretionary part is which day within the previous five days. However, there is no discretion; there is a mandatory requirement that the prisoner must not be discharged on a Friday or a weekend. Something of that kind would be delivered very easily—and it really must be delivered. I hope that there will be none of the antics that we heard described in the other place to justify the totally illogical, impractical and unjustifiable status quo.

[Lord Paddick (LD)]

My Lords, I rise to speak on behalf of my noble friend Lady Bakewell of Hardington Mandeville, who is unfortunately unwell and unable to be in her place. She wanted to speak to Amendment 211 in the name of the noble Lords, Lord Hodgson of Astley Abbotts and Lord Bird, and the noble Baroness, Lady Lister of Burtersett, to which she added her name. She would have spoken about her personal experience, so I shall just read the words that she had hoped to say had she been here.

The routine releasing of prisoners on a Friday, especially before a bank holiday, can cause both services and the prisoners themselves significant problems. Finding accommodation on a Friday afternoon can be extremely difficult. Those who have managed to get clean of substance abuse while in prison find themselves desperate and start using, begin criminal activity again or, in some cases, both. For 10 years, my noble friend was a councillor on South Somerset District Council where there were marvellous officers who worked tirelessly to try to ensure that no one was left with nowhere to stay. The noble Earl, Lord Attlee, made a powerful case for the amendment and the noble Lord, Lord Hodgson of Astley Abbotts, similarly made the case for not releasing prisoners on Fridays or bank holidays. This is a matter that my noble friend feels very strongly about, so I will share two cases sent to her by the officers of South Somerset.

First, prisoner A was released on a Friday from Guys Marsh prison near Shaftesbury. He was given a rail warrant and got on a train to Yeovil. He contacted his family, realised he did not have accommodation to return to and went to see his offender manager at the probation office, who contacted the housing team. By this time, it was 3 pm and they had very little options available for him at that time of day. It was too late for them to find suitable accommodation and although they managed to get him into a hostel in Yeovil, that was not the best place for him, He had left prison clean of drugs and had to stay in a hostel with very easy access to illegal substances. Unfortunately, he used again, the accommodation broke down, he reoffended and was recalled to prison.

Case two was prisoner B, who was released from prison in Bristol on a Friday and got a train back to Yeovil. He then got a bus to Chard, some 17 miles away, to collect his possessions from his old tenancy. He then returned to Yeovil, by which time the offices had closed. He spent the weekend rough sleeping before he could contact the district council again. South Somerset District Council is fortunate to have secured funding to employ a prison release worker who tries to contact prisoners before they are released so they can plan ahead and help them. However, when people are on short sentences, the prisons rarely have time to work with the prisoners, so they get released without the council being informed. My noble friend Lord German has tabled amendments on those serving short sentences.

Other prisoners think they are okay and have homes to return to. These often do not materialise and by the time they realise they are homeless, it is 5 pm on a Friday. Sadly, one of the people in these case studies died over the weekend of 16 and 17 October aged only 45. He was quite a prolific offender and spent a lot of his time in prison. He had been in care from the age of two and did not have the best start in life. The council tried to help him on a number of occasions and sometimes succeeded, but not always. These are just some examples of what happens when prisoners are released on Fridays. This could be avoided by flexibility being used both in the courts and in the prisons. I hope the Minister will agree that this is a very sensible, non-controversial amendment which could prevent reoffending for the want of a roof over the heads of prisoners who have finished their sentences. I fully support Amendment 211 and look forward to the Minister’s response.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, the late intervention by the noble Lord, Lord Cormack, was helpful in suggesting to the Minister that what I think we would all acknowledge is a complex, sensitive and controversial issue would benefit from a sensible roundtable discussion in which the Prison Service was open to some scrutiny. Part of the issue around gender, sex and identity in government as a whole is that policy has been developed mainly by officials who have come under the influence of certain groups, which Ministers have basically accepted and it has not been subjected to proper scrutiny.

My major appeal to the Minister tonight is to allow for that and to open up a dialogue in which those of us who are gender-critical are not accused of being transphobic or under the pay of alt-right American organisations, something which, I am afraid, has all too often clouded the debate. I have an Oral Question tomorrow about Professor Kathleen Stock—a classic case of someone who has expressed quite legitimate views being subjected to horrendous abuse and basically left simply to put up with it herself; it was very late on that the university came her defence. There are so many examples of this, mainly affecting women. There is a lot of misogyny in this debate, and women are left defenceless by pathetic public bodies which are frightened to upset certain groups such as Stonewall. We know this—in how many government departments has policy been developed by officials, with Ministers having virtually no say?

My appeal to the Minister tonight is to take this seriously and to say there is a legitimate debate—not one in which we call each other names, but where we actually start to discuss these issues. It has never been allowed; there has been no real public debate or scrutiny in Parliament. These issues are so sensitive, and with every Bill that goes through, this debate will take place. We know that the Government are split on this, but they have got to get themselves together and start to have a proper dialogue. That is the appeal I make to the Minister.

[Baroness Chakrabarti (Lab)]

My Lords, I am afraid it is not just the Government who are split on this. With two notable exceptions, rarely have so many noble Barons spoken with such passion and at such length for the dignity of women—and there is nothing wrong with late-flowering feminism. I say that quite sincerely to the noble Lord, Lord Blencathra, who I had the privilege of advising as a young lawyer in the Home Office some years ago now. There is nothing wrong with late-flowering feminism and, indeed, nothing wrong with speaking up for the dignity of all people. I say that as a self-identifying feminist and human rights campaigner.

The debate has ranged widely, which may be fine even at this late hour, but it has ranged beyond the specific issue. Noble Lords have brought up various issues to do with the lexicon and whether people feel that their dignity is lost, or that somehow their femaleness, or their womanhood, is challenged by newcomers, migrants to their sex, et cetera. To get back to the actual issue, life is complicated, prisons are vulnerable spaces and everybody in prison is inherently potentially threatening but also potentially vulnerable. I want to get back to the actual substance of this amendment and what it is trying to address. I say to the noble Lord, Lord Blencathra, that, if he and I were trapped in a lift with a third person—this is just a hypothetical, not an invitation, I promise—and the third person was a cis woman, born a woman, still a woman, always a woman, but none the less a white supremacist with previous convictions as long as your arm for violence against non-white women, I would feel much more threatened by the presence of that offender than by the presence of the noble Lord, Lord Blencathra. He is looking quizzical, but my point is that the Secretary of State has responsibilities to people in custody, in particular, and to people in vulnerable spaces that cannot be dealt with using the blunt instrument of an amendment like this.

I am not making nit-picking points. I am trying to address points that I think the noble Baroness, Lady Brinton, tried to make early on. Forgive me—it is no criticism, but some noble Lords responded subsequently with speeches which were understandably carefully prepared in advance, without the opportunity to hear her rather sensitive and thoughtful setting out of the way in which the Government to date are trying to address their administrative and serious human rights responsibilities to deal with all vulnerable people in prison.

I suggest to the noble Lord that in the hypothetical lift I would be at far greater risk from the white supremacist with previous convictions. This is not a total hypothetical, because this has happened in male prisons where non-white offenders have been murdered by fellow cis males—that being the term for people born and always a man—because of a lack of diligence about the offending and attitudinal profile of a person.

If we really care about people being safe in custody, which we must, this will not be resolved by a blunt instrument. This is not a drafting point or a nit-picking point. In my view, we have too many people—and I suggest too many women—in prison anyway, and we need to pay more attention to who is with whom and how we are taking care of them.

Something like this amendment, which says that your birth sex is always your sex for the purposes of imprisonment and incarceration, would mean that someone born a woman who then went through hormone therapy, possibly more interventionist therapies and even surgery would always be in a women’s prison. That would not necessarily always be the right outcome.

What I am trying to suggest is that, yes, I care about being a woman and, yes, I care about being a feminist, but I am a human first and foremost. I do not hate men. I do not fear all men. I am not a self-loathing cis woman. I believe that in this Committee, perhaps more than anywhere, we should be capable of taking some of the heat out of these sensitive issues, as I think we tried to do in an earlier—I called it historic—debate. Debates about the lexicon and wider dignity, important and heated though they are, will not make women safer and they will not make prisoners safer.

[Baroness Meyer (Con)]

We are talking about men who feel they are women but who have male genitalia being in a women’s prison. We are not talking about men who had operations. We are talking about men who, after being in a prison for several months, might have needs and could attack women. Some of those men are paedophiles and are violent.

[Baroness Chakrabarti (Lab)]

I hear the noble Baroness, and I do not call her a late-flowering human rights spokesperson or feminist. I know that when she spoke on another Bill about parental alienation, she very clearly identified and recognised that people of both sexes were capable of this behaviour. Perhaps if she had had the opportunity to listen to the remarks of the noble Baroness, Lady Brinton, before she prepared hers—I make no criticism of that, because we all do it—she would recognise that the Government are already moving quite a long way to deal with these difficult administrative duties of care.

I believe that people of good will and good faith, as I consider this Committee to be, can deal with this without using some of the language that—forgive me— some noble Lords have used repeatedly. Repeatedly calling people one sex even though it is very important to them to be another does not help. This place—this Committee and your Lordships’ House—should not be a place of culture war. This should be a place where we make difficult things a little bit easier because of rational thought and the respect that we pay each other and therefore everyone else.

[Baroness Fox of Buckley (Non-Afl)]

I want to respond to that because I think another point that follows from what the noble Lord, Lord Hunt, said is that the other argument that comes up all the time is that if you raise these issues you want a culture war, which I think the noble Baroness, Lady Chakrabarti, was implying.

On terminology, if we are all going to get offended, I do not particularly find descriptions of people as “cis” very helpful either, so when it comes to language issues, the point is that there are tensions that exist outside this place. We know that and it is disingenuous to pretend that there are not.

The noble Baroness rightly pointed out that this is a question of administrative duties of care. This amendment has been very carefully worded in a very narrow way about a very specific issue. What is the objection to that? This is precisely a responsible administrative duty of care, regardless of any hyperbole that people do not like other people using even when they use it.

[Baroness Chakrabarti (Lab)]

I thank the noble Baroness for that intervention. If I offended her in any way by my remarks—

[Baroness Fox of Buckley (Non-Afl)]

Not me.

[Baroness Chakrabarti (Lab)]

—I apologise. Clearly one of the reasons this is so sensitive is that, beyond this Committee and this Chamber, there is not yet even a settled courtesy about some of these matters. If I have offended any Member of the Committee, I apologise.

I was born a woman, and I still identify as a woman, but I have always tried to disagree well with people, including those on the Benches opposite, who I disagree with across the piece. I have never seen all men as a threat, and I have certainly never seen people of other races, sexualities or sex as a threat, and I am not calling anybody names in this debate.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this is an important debate. I think I am perfectly entitled to intervene; I do not see why I cannot. I agree with a lot of what my noble friend said about the tone of the debate. My problem is the accusation of transphobia.

[Baroness Chakrabarti (Lab)]

But I did not make it.

[Lord Hunt of Kings Heath (Lab)]

No, my noble friend did not make it, but it is made by many people. Those who are perhaps arguing from my noble friend’s point of view never defend people such as Kathleen Stock when they suffer such abuse. I welcome this debate, which is why I intervened, because, frankly, it is very helpful to try to set a place here. I agree with my noble friend that the Lords is, above all else, a place where we can start to have some reasoned discussion, but there are huge tensions and sensitivities on both sides. I must come back to the Minister: the fact is—

[Baroness Chakrabarti (Lab)]

My noble friend is intervening on me.

[Lord Hunt of Kings Heath (Lab)]

That is very true. My noble friend is right. I will take that and ask her to respond to me.

[Baroness Chakrabarti (Lab)]

I am grateful for that. Forgive me, again, if I have called anybody names. That has not been my intention. This is difficult terrain. The path of human rights does not run smooth and there are all sorts of difficult issues to be dealt with. There are some people beyond this Committee and your Lordships’ House who seek to set people against each other. The focus of this legislation, and your Lordships’ focus in this Committee, should be to ensure the safety of vulnerable people in prison, whatever sex they were born and whatever sex they now identify as. I was trying to suggest that that is not just about biology. It is also to do with criminality, profile, attitude and so on. I believe we have too many people in prison and that we therefore have too many women in prison.

I would defend academic freedom and debate, by the way. Forgive me if I have not been seen to do so. I believe that my record on free speech matters is decent enough. I urge noble Lords to send a signal to the wider world that, in this place at least, we can disagree well and focus on protecting all vulnerable people in prison.

[Baroness Falkner of Margravine (CB)]

My Lords, I declare an interest as chair of the Equality and Human Rights Commission. As most noble Lords will know, we are the body charged with protecting the protected characteristic of sex as well as that of gender reassignment and the fundamentally important human right of freedom of expression. All those things have been discussed today relatively calmly, on the whole. On debating well, I start from first principles and say that we should never try to close down debate—and yes, we should debate well.

I thank the noble Lords, Lord Blencathra, Lord Morrow and Lord Farmer, and the noble Baroness, Lady Meyer, for proposing this amendment, which basically seeks to ensure that female prisoners are protected from harm. This is a complex area, where the rights of trans women prisoners to have their legal sex recognised has to be balanced with those of female prisoners, who may be fearful of attack, if they know that a dangerous sex offender with male anatomy is housed with them, for example. The important point is that, when you are incarcerated and do not have the liberty to leave a place of danger, the state’s duty to look after you is profound. You do not have the choices that other people have.

The noble Lords and noble Baroness have proposed that prisoners with a gender recognition certificate who are suspected or convicted of a “violent or sexual offence” are treated

“by reference to the sex registered at their birth.”

I understand the intent behind this amendment, which is essentially to secure the safety of natal women. However, it raises some issues that require further thought—for example, the risk of violence towards trans women prisoners housed in a male prison as well as to trans men in a female prison. I urge noble Lords not to frame this serious and complex issue either in a numbers game—are there very few or not so few?—or in what may or may not be our personal outlook, if we find ourselves in that position. The law is frequently a straitjacket, and it is not sufficiently malleable to accommodate the complexity of identities around us.

At the heart of this issue is the need to protect female prisoners and ensure that they have access to single-sex spaces, including bathrooms, sleeping accommodation and other areas that they need. Violent and sexual offenders are a threat to their fellow inmates, regardless of their sex or gender identity. Cases of assault sadly already happen in single-sex prisons. However, in the case of trans prisoners who may be violent or who may have committed crimes involving sexual assault, it is right that we now need to give additional thought to how they are housed. As it stands, the law stands calls for these decisions to be made on a case-by-case basis. While this will be right in many situations, it may also raise the question of how female prisoners can have confidence in their ability to safely access spaces such as toilets within the prison, precisely because they cannot know the outcome of a case-by-case assessment, as opposed to the generality of a law that exists for them. Further thought needs to be given to the facilities provided to trans people and whether provision can be expanded for trans people that ensures that all sides of that debate can be safe and secure within the prison estate.

A further problem with the amendment is that, oddly, it is too narrow and does not capture the issue of trans men or trans women who do not have a gender recognition certificate but, nevertheless, self-identify in the gender and can therefore apply and be granted a place in the relevant prison estate. I do not think the noble Lords who put down the amendment intended for it to be quite so narrow—certainly their speeches do not reflect the narrowness of the written words. These are not straightforward issues, and it is right that we properly consider the balance of rights of different prisoners. I do not believe that the amendment gets that balance right, but it does ask serious and important questions that need to be addressed in law.

If the Minister is minded to pursue these arguments through Report, I ask that he give extremely serious consideration to the importance of getting the balance of rights correct and ensuring that all prisoners have the duty of the state to safeguard them upheld as we go forward.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly—the noble Lord, Lord Russell, will be pleased to know—to offer the Green group’s support for Amendment 219 in the name of the noble Baroness, Lady Newlove. I shall simply make two points, one of which draws on the recent intervention by the noble Lord, Lord Russell.

First, the noble Baroness, Lady Newlove, referred to the origins of this amendment. Nottinghamshire Police Force has been a pioneer in this area. In my contribution on this subject on the Domestic Abuse Bill, I looked back beyond that. If you look at the history of how Nottingham police came to be doing it, it began with a group called Nottingham Citizens and a survey it conducted among the people of Nottingham. That led to a conference held at the Nottingham Women’s Centre, which informed the police and police action. This is something that very much grew from the grass roots up. In response to many of the contributions from people advocating Amendment 219A instead: this has been proven to work. It is there demonstrably on the ground. The fact is there.

For my second point, I refer to the author Caroline Criado Perez and quote her:

“There is enough data to know that men who kill women do not suddenly kill women, they work up to killing women … If only we were to listen to women and pay attention to the misogyny and aggression and violence that they deal with on a daily basis.”


That is what Amendment 219 seeks to do. The noble Baroness, Lady Noakes, suggests that we have to wait and wait and wait. I would suggest we have been waiting lifetimes—centuries—for this action. We have a proven model that has been shown to work. Let us put it into effect.

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate the noble Baroness, Lady Newlove, her noble friend Lord Polak, my noble friend Lord Ponsonby of Shulbrede and the noble Lord, Lord Russell of Liverpool. I want to focus on the amendment, not on a wide-ranging debate about everything that is wrong in relation to sex and gender or discourse in society.

I want to congratulate the noble Baroness because it is a simple and focused amendment. The word “misogyny” does not even appear in it. It is not thought crime. It is not even a speech offence. It follows a well-trodden path of adding protected characteristics or certain characteristics to a list. Hostility towards people with these characteristics will be an aggravating factor in a crime that already exists and has already been proven or admitted beyond reasonable doubt in a court. I say to noble Lords who are worried that I will come back to their fears and try to assuage them.

It seems totally unconscionable to me that, for example, race and religion have been aggravating factors in the code for so long but not hostility towards women. Hence, in the waiting millennia—certainly decades—since the code, these factors have been added. Some people will say that we never needed to add aggravating factors at all, and we could always trust the courts to get it right. Whether that is true or not—and I am not sure it is—we have a well-trodden system, and it is unconscionable, particularly at this moment when women and girls are feeling the way they are, that we should say we must wait because it is all very complex. If it is not complex in relation to race, religion and sexuality, it is not complicated in relation to sex. These are people who have already committed a criminal offence.

Why add aggravation at all? If somebody gets drunk on a Friday night and gets into fights with people they come across, that is bad enough. But if they go out after a few drinks on a Friday night to single out a particular group or a particular type of person based on their race or religion, or go out beating up women, that is an additional public policy problem, and that is why aggravation in relation to the group is a matter for this Committee and for policymakers.

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Baroness Chakrabarti Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I also rise to support Amendment 220. When I was chairman of the Commission on Justice in Wales, we looked at this issue and had extensive evidence, including from the Children’s Commissioner for Wales. Without hesitation, we recommended that, were it free to do so, Wales should raise the age of criminal responsibility to 12, consistent with United Nations obligations it has untaken.

I agree completely with what has been said about the profound changes in the understanding of mental capacity that have taken place over the last 10 years in particular. I urge the Government not to delay any further a change to make our country no longer a laggard on this issue but one that is at least catching up. There are problems, such as knife crime, but the age of criminal responsibility is not the way to deal with them.

[Baroness Chakrabarti (Lab)]

My Lords, it is very good to see the Committee refreshed and to have the opportunity to meet earlier in the day, so I thank the powers-that-be for making this possible.

--- Later in debate ---

[Lord Sandhurst (Con)]

My Lords, perhaps I may begin by saying that I support Amendment 220. I endorse it completely and have nothing further to say on it. Noble Lords have spoken with great eloquence and force. As the noble Baroness, Lady Chakrabarti, has explained, my Amendment 221ZA, is a probing amendment designed to correct the terms of a subsection in Amendment 221 in case that amendment goes forward and the Government are interested. Let me explain.

I should say at once that Amendment 221 is, in principle, good. If accepted, it would require the Government to carry out a review of the age of criminal responsibility. I have no argument with that whatever. The issue that I raise is with the list of factors to be considered by any such review and, in particular, the use of the word “gender”. The right word there should be “sex”. The requirement in Amendment 221 is that the review should take into account certain factors. It can take other factors into account, but the following are mandatory:

“age, gender and ethnic background”.

My focus is on gender. Those noble Lords who sat through the important debate on Monday night will have heard lengthy discussion of those terms and their use in legislation. I will come back to that.

When I drafted my amendment rather hurriedly on the Thursday, I focused on the terms in the Equality Act. Why I did so will become obvious in a moment. I used too many words; I just lifted other factors in order to include them. I am now satisfied that the only proper course is to remove the term “gender” and substitute that with “sex and gender reassignment”. The cohort, if the review were to take place, will be those under 18 and, for the large part, those materially younger. One could call them children. Importantly, “sex” is established in statute and describes physiology. It is not a social construct. It is easily identified, and is listed and defined, as I shall explain, in the Equality Act. It should be noted that “gender” is not so defined. I say that for noble Lords who were not here on Monday or have not studied the Act in detail.

Section 11 of that Act states:

“In relation to the protected characteristic of sex … a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; … a reference to persons who share a protected characteristic is a reference to persons of the same sex.”


There is further elaboration in Section 212, which defines “man” and “woman”—in other words, the terminology that has just been explained. It states that,

“ ‘man’ means a male of any age … ‘woman’ means a female of any age.”

There we have it all clearly defined. Sex is a physiological condition and, importantly for the purposes of a review, it is an objective fact, not someone’s opinion. It is not what someone identifies as. We are talking here about people under 18, usually those much younger. Also, we all know that sex is registered at birth. It is on the birth certificate.

In the case of a small number of people who are under 18 and may fall within the ambit of the review, there may be those to whom the term “gender assignment” will apply. They will be few, but if that does apply within the meaning of the legislation, that, too, will be a fact, not an opinion. That is because gender reassignment is also a protected characteristic under the Equality Act. Section 7(1) of that Act defines gender reassignment as follows:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”


So gender reassignment likewise refers to a physiological process and does not include mere self-identification or opinion. Lastly, in case anyone were to ask, “What about gender recognition certificates?”, they simply do not apply. One cannot have one of those if one is under 18. I say that so that everyone knows where we are.

Put simply, if there is to be such a review, the mandatory—if that is the right word—considerations should be age, sex, gender reassignment and ethnic background, but not gender. I commend this approach and await with interest the Minister’s response.

[Baroness Chakrabarti (Lab)]

I should say briefly in the absence of the noble Baroness, Lady Bennett of Manor Castle—perhaps it is not my place to do so because it was her amendment that I signed—that I should thank the noble Lord, Lord Sandhurst. We have been using various terms in Committee, but on this occasion he must be right. If one were considering children under 18 in the context of a review of the age of criminal responsibility, it would be a glaring omission to include “gender” instead of “sex” in the legislation.

Sometimes it may be appropriate to use both terms, and I supported that position on Monday in the particular context of a different amendment about hostility towards people. What I tried to suggest, and which Twitter does not reflect, is that hostility can be towards people in broader categories than those protected under the Equality Act. I would not want someone to be subjected to violent hostility, even on grounds that are not currently in the Equality Act, because they were non-binary or whatever. That is not really the point in this context. If I may say so, the noble Lord, Lord Sandhurst, put it very well.

What is more, I hope that the noble Baroness, Lady Bennett, will forgive me for making that concession, given that this is a probing amendment and her list of factors to be considered in any review was inclusive and not closed. I hope it is helpful to respond to the noble Lord, Lord Sandhurst, in this way.

[Lord Hogan-Howe (CB)]

My Lords, I broadly support a rise in the age of criminal responsibility. I think the review is a good idea, and of course it should be science-based. The danger of going for 12 years, which is an improvement, is that it could be higher if only we thought about it well. I would be open-minded on whether it needs to be a matter of law or a government commitment to carry out a review.

There is just one area which I hope such a review might consider. The Bulger case is often referred to, for obvious reasons. Hard cases can make very bad law; we are aware of that. But I do think that that type of case imposes a duty on government to consider people’s concerns. There are two concerns that people might have if they lived in the area. One is where the child would live on return to society. That could be covered through care proceedings—you can control where someone lives and who they live with. The second is their occupation. If, at the age of 18, the murderers were released—as they were in the Bulger case—and wanted to go into childcare, or any of the care professions, would people be content with that? There would at least be a question about whether that would be wise. If they only have a care proceeding against them, they would be perfectly entitled not to declare what they were involved in at the age of 10. My point is not that they should be criminalised and therefore always carry that with them, but about how you manage their occupation, subsequent to their reaching an adult stage. It can be managed without criminalisation, but such a review might want to consider how that could be done most efficiently.

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[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord German. I know that he has an immense amount of experience in matters around education, from both his personal experience of teaching in earlier decades and his work in the Welsh Assembly Government. I probably support his amendment, but I am much less interested in the amendments here than in achieving a shared purpose, which is that children who are in custody have the chance of a quality education which will enable them to go on to higher education, where appropriate, good apprenticeships and other forms of training which will give them a decent chance in life—most of them not having had a chance in life. I am afraid it is a truism, at least in my experience of visiting many institutions holding children, that for many of them, that institution is the most comfortable and secure place, emotionally, that they have ever lived. That is a sad commentary on their situation.

I carried out some voluntary work for the Howard League some years ago, and it involved visiting Oakhill, Rainsbrook and, indeed, Feltham—a place which has been through good and bad patches over the years but, from what I hear from people who work there, is at the moment pretty challenging and not providing children with a particularly good education.

The ambition that we surely all share is that there should be a consistent level of good education throughout those institutions. I will give an illustration of why. When I was doing the voluntary work for the Howard League, of which the current president is another Member of your Lordships’ House, the noble Lord, Lord Macdonald of River Glaven—I am very happy to see him in that role—I went to one of the institutions that I have named. I was taken around and a boy of about 16 asked me to go into his room, as he called it. I went into his room and all over the wall there were maths certificates, including a grade A GCSE maths certificate. I said something really silly like, “You must be very good at maths.” He said, “I love it, sir. I want to be a maths teacher when I leave this place.” I do not know what happened to him, but he certainly had the ability to be a maths teacher. The reason he got that maths GCSE was because there was one really inspired teacher in that institution who spotted his talent at maths and had taken it to that level. I said to this boy, “Did you like maths when you were at school before you came here?” He replied, and I will never forget these words: “I never went to school, sir.” The capacity of education in these institutions and the opportunity it provides are enormous, but it has to be consistent.

Charlie Taylor, who has been referred to in this debate, did some very valuable work. I was very fortunate in that I was a consultee for him from time to time. He absolutely shares the views I expressed in the last few minutes. I ask the Government to accept that the ambitions I have expressed are shared by the Government too and that, whatever we call these institutions, whoever runs them—I do not really care, to be frank, as long as they reach the requisite standard—will try to reach standards that have been reached in the past. Noble Lords will remember Peper Harow, which was a very fine institution run in the voluntary sector by a number of trustees who would have been familiar in some way or another to Members of your Lordships’ House. It came to a slightly abrupt end because there was an accident there, but people who left Peper Harow, having had their education, commonly went straight to university and achieved university degrees, or did other training that gave them a good life after custody.

I say to the Minister: please can we have an assurance that we are not getting bogged down in process and the name we give to these educational institutions, and that we are actually trying to achieve a gold standard of quality with young people who are bored of being in an institution and for whom education is a really welcome change if it is good enough?

[Baroness Chakrabarti (Lab)]

My Lords, I am sorry, I was looking around the Chamber to see who was poised and trying to be too polite. It is an absolute pleasure to follow the noble Lord, Lord Carlile of Berriew, who many members of the Committee will associate with his legal expertise, but it is to be remembered that he has a considerable track record, to say the least, in matters of penal reform.

It is also a pleasure to have my name associated with this amendment in the names of the noble Lords, Lord German and Lord Marks of Henley-on-Thames. It seems totally anomalous that local authorities should be excluded from giving this provision, for all the compelling reasons given by the noble Lord, Lord German, about the expertise that they have accumulated in relation to education, children, care and so on. It can be only an ideological justification—I must not be too smug about ideology because I have a little of my own. Although there are always political debates about the role of the state in relation to all sorts of goods and services, most people, across politics and across the Committee, have some sort of notion of the irreducible core of the state. Personally, I think that, as with policing and the Army, incarceration ought in general to be a primary responsibility of the state itself, for obvious reasons to do with the vulnerability of those incarcerated and the responsibility, including democratic responsibility, of politicians, whether at local or national level, in relation to powers of coercion and the incredible vulnerability of people who, of course, cannot even vote.

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Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

I have a quick question, because I want to be clear about this point in relation to something the noble Lord, Lord Paddick, said earlier. If a Sikh, who is carrying just their religious knife, is in a fight and is convicted of common assault, is the SVRO now available in that context?

[Baroness Williams of Trafford (Con)]

It is always dangerous to talk about specific cases but, if the knife has not been used in the commission of the offence—

[Baroness Chakrabarti (Lab)]

But it was on their person.

[Baroness Williams of Trafford (Con)]

If the Sikh was going about his business with his knife in his pocket, he would have reasonable excuse. If he then got into a fight and the knife was not used in the commission of the common assault, the knife would be irrelevant to the case. But I must absolutely caveat my comments: the court would decide the facts of the case.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

What I am saying, and what I said earlier, is that it will be up to the courts to decide whether it is appropriate, bearing in mind the facts of the case, and whether the court thinks an SVRO in respect of an individual is necessary to protect the public or any particular members of the public in England and Wales.

[Baroness Chakrabarti (Lab)]

First, I want to thank the Minister and do not want her to think any of this is meant to be aggressive or to interfere with what she is doing. Secondly, these hypotheticals are incredibly important to test the provisions; they are not some attempt to be clever and dance on the head of a pin. It is super important to get the criminal law right, and that can only be done, in my view, by testing it against the sorts of scenarios being offered.

The Minister quite rightly says, “We are creating a disposal, and in the end the courts will have to administer it”. None the less, the Government are creating the disposal and setting thresholds for its availability. With respect to her, the Government must have a policy and intention, and there is therefore a valid question about whether it is the Government’s intention in drafting and pursuing this legislation that, for example, any male Sikh, or any Sikh, who carries a ceremonial knife, however small, will always theoretically be subject to this additional exposure to a disposal to which, by definition, people of other faiths will not be subject. I am not saying that to be inflammatory, but we have to get this right. The Minister herself has talked about equality impact assessments, and so on. It may be that this proposal slipped through the net and is worth looking at again before the next stage.

This is not just an issue for the Sikh community but for other people such as chefs or electricians who are carrying knives and are involved in a crime that theoretically is potentially not even violent crime but perhaps minor shoplifting, possession of prohibited drugs or whatever. They are now, suddenly, potentially subject to this disposal. It is not simple enough to assume that when a specific disposal such as this one, with draconian consequences, is made available for sentences it would never be used. The courts might rightly think that the Government’s policy must have been that if you carry a blade or point, regardless of whether you were carrying it illegally in the first place, you take your chances, and that if you get involved in shoplifting or is found in possession of drugs, that is too bad—you now get this additional penalty and it serves you right. That is the signal that we are sending on violent crime. I hope that that is not the intention but if it is, the Committee will need to know.

[Baroness Williams of Trafford (Con)]

We have covered a spectrum of different types of offending and behaviour. We must not forget that at the point at which—no pun intended—someone is issued with an SVRO, they will have been convicted by the court of a knife or offensive weapons offence. The court will also, I am sure, take into consideration previous patterns of behaviour. If the Sikh who got involved in a fight and had his knife with him had no previous convictions for weapons offending, that would be quite different from a repeat offender. It would be for the court to consider whether to impose the SVRO. I hope that I have made that clear and that it will become clearer to noble Lords by the examples I will provide.

Of course, we will consider, in the light of the Committee, whether we have got all the permutations and combinations right. That is what noble Lords do best—scrutinising legislation, and I have the benefit of some serious legal players around the Chamber.

I now move on to the concerns of the noble Baroness, Lady Armstrong, about the disproportionate impact that SVROs might have on some vulnerable groups—primarily women who might be coerced into carrying weapons. I completely empathise with the circumstances in which such women might find themselves. We discussed domestic violence only a few months ago and know the effect that coercive control can have on women. At the heart of what we are doing is committing to preventing offenders of all ages, genders and backgrounds becoming involved in serious violence by developing resilience, supporting positive alternatives and delivering timely interventions.

Police, Crime, Sentencing and Courts Bill

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Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am sorry to find myself intervening at this point but there is no bigger policy than the right to a fair trial. Of course that goes for complainants—and I agree with much of the thrust of what my noble and learned friend says—but there must also be justice for someone accused of any matter, but particularly such a serious one as a sexual offence. The example given by the noble and learned Lord, Lord Judge, warranted more of an answer, and one could conceive of others.

I say that while acknowledging that for decades, too much sexual history has been admitted; there is no doubt in my mind about that. That was why Section 41 had to be enacted in the first place. Scholars in this area will be able to look back at the Hansard of the passage of Section 41 and its various iterations at the time. The section was actually more tightly drafted to begin with but noble Lords in this place, including on the Benches behind me, came up with compelling exceptional circumstances where it would do a grave injustice to a defendant for startling similar fact-type evidence not to be admitted.

I understand that even since the passage and enactment of Section 41, a lot of complainants—and, with all respect to the noble Baroness, Lady Bennett, quite possibly women in particular—have felt that there has still not been enough sensitivity on the part of certain judges. However, it cannot be right that if I as a complainant, of whatever sex, assert that a particular type of sexual activity is something I would never and could never consent to and have never consented to, and yet I did the day before—how can it be anything but an injustice to the defendant for that not to be admitted? If I am a man and I say I have been raped by another man because I would never have consented to sex with a man, and yet there is ample evidence of a third party saying that there has been consensual sex —that cannot be fair to the man in the dock who says, “Yes, we had consensual sex” and then the complainant, because he is embarrassed due to his family, his faith or whatever reason, now says that it was non-consensual. That cannot be right.

I agree that we must do more so that juries, judges and indeed society do not assume that past sexual history is determinative of consent, but in my view to say that it is always absolutely irrelevant would not comply with Article 6 of the convention and therefore the Human Rights Act. I do not mean to be difficult but I could not possibly have potential injustices of that magnitude on my conscience, and I do not think this Committee could either.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, in replying, I preface my remarks by commenting on points made by noble Lords. The first was made by the noble Lord, Lord Thomas of Gresford, at the outset, while the Benches opposite were still thrashing out the batting order. If I may summarise the noble Lord’s position, I think it emphasised the importance of judicial discretion. A judge seized fully of the law and of the particular facts and circumstances applying to any case will most often be best placed to decide what should be done. I know that the noble Lord will recognise that my remarks cut both ways, and that he will hold me to them in the course of today’s debate. However, I fully accept what he had to say about the importance of judicial discretion.

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[Baroness Chakrabarti (Lab)]

My Lords, I support this whole group of amendments from my noble and learned friend and others. The reasons given by noble Lords are hugely compelling and, if anything, I think some noble Lords opposite are not enthusiastic enough. I hear the arguments about the public purse, but we would not be here if civil legal aid, in particular, had not been altogether obliterated and if there was not such a continuing injustice to bereaved families.

Frankly, I am not persuaded that there is something so awful about a greater equality of arms between hospital trusts and families who feel they have been sorely let down, or indeed between those families and a range of public authorities who can afford not competence but brilliance—they can afford the noble Lord, Lord Pannick, over there. I am not sure that “near competent” would be enough if you were faced with my friend the noble Lord, Lord Pannick. We need to have something like the intention behind this amendment; there should be some kind of equality of arms for these desperate people.

My heart broke when the noble Baroness, Lady Newlove, said that she has spoken to bereaved families who think of an inquest as an irritant. We should all be ashamed of that. Inquests, which are supposed to get to the bottom of things and be at least some kind of comfort to those families, should be the absolute opposite of an irritant.

I want to encourage my noble and learned friend not to let this go into the long grass, or to become an interesting probe that does not get anywhere because we are worried about the precise mechanism, because I am very concerned—we are still in the pandemic—about the coronavirus inquiry or inquiries that must come soon. There may not be another vehicle for amendments such as these, or legislation such as this, in time. It is incredibly important that, in a year or two, or whenever those inquiries happen, we have resolved this to some extent.

I fear we will not have resolved the general, dismal picture when it comes to civil legal aid, but at least we can come up with some kind of fix, however imperfect, to redress the balance of advice and representation for bereaved families. There will be a lot of very impoverished, vulnerable, bereaved families who will have nowhere near the access to private or public money. To be honest, whatever your ideological position, even the inequality between private corporations and bereaved families is bad enough, but surely, with public authorities and public money, there can be no excuse for such an imbalance in the use of that public money if we are really interested in the pursuit of justice.

[Lord Bach (Lab)]

My Lords, I also agree absolutely with the principles behind these amendments. It seems as though the Committee has been unanimously supportive up till now.

My question to the Minister is: why have we waited so long for something to happen in the area of inquests? I had hoped that there might be something in what has been rightly described as a Christmas tree Bill to help us along the way, but there is not. It has needed the amendments from my noble and learned friend Lord Falconer and others, including the noble Baroness, Lady Bennett, to raise this issue. I was privileged enough to chair a Fabian commission on legal aid, which reported more than four years ago. We considered this urgent—as I think the world did—then and for many years before. At one stage, Hillsborough was a classic example which aroused public interest in this issue.

Is there work being done at the moment within the Minister’s department to look urgently at this issue to see whether some solution cannot be found? Never mind the rest of civil legal aid—though my noble friend Lady Chakrabarti knows I agree with her absolutely on that—is there not something that can be done in this area as a matter of some urgency?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for giving the Committee the benefit of his experience. Perhaps it is that experience which informed, or helped to inform, the remarks of the Chief Coroner, his honour Justice Thomas Teague, who has said publicly that one of his key objectives in his role is to ensure that the inquisitorial ethos of the inquest process is maintained. I hope that demonstrates a resolve within the system to address the failings or, at best, the over-eagerness, of counsel whose conduct the noble Lord described.

The amendment to increase the scope of legal aid at inquests would run counter to the approach of retaining their inquisitorial character. There is a risk that additional lawyers present at an inquest would not provide an overall improvement for the bereaved, that being something which ought to be a primary consideration, for the reasons expressed by my noble friend Lady Newlove. It is foreseeable—I think this is the point raised by my noble friend Lord Sandhurst—that the presence of additional lawyers could have the unintended consequence of turning an inquisitorial process into a complex exercise—

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. I do not doubt the sincerity of his concerns about trying to maintain informality in inquisitorial process. However, can it ever be conscionable for an inquest to involve a totally unrepresented core participant or bereaved family in circumstances where those whom the bereaved family suspect of being responsible for their loved one’s death are represented by professional lawyers, counsel and QCs? Can that basic inequality ever be conscionable, not least when we are dealing with lay people, with public concern and with public money that is all going to some parties and not to the bereaved?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Baroness for her intervention.

I was going on to say that, for bereaved families who need legal help, advice and assistance are always available under the legal aid scheme, subject to the means and merits test. This can help preparation—

--- Later in debate ---

It is important that changing the law is in the interest of victims, as much as possible. They have suffered under this time limit for far too long and, as the former Victims’ Commissioner, I am tired of listening to these women—mostly women—who have gone for support but have been left out on a limb yet again. Leaders from across the violence against women sector contributed to this amendment. They have worked with victims and understand their real-life experiences and what law changes are needed to protect them, so I urge the Government to accept this amendment in full to reflect their work.

[Baroness Chakrabarti (Lab)]

My Lords, I support both noble Baronesses’ amendments and urge the Minister to accept them with alacrity or, if that is not possible, to work with the noble Baronesses and parliamentary counsel to achieve the compelling intentions behind both amendments.

The last thing my noble friend Lady Kennedy of Cradley needs to do is apologise to the Committee for not being a lawyer because, if I may say so, her speech in support of her amendment combined every ounce of detailed legal reasoning with a humanity of which any lawyer would be proud. The anomaly to which she refers goes back to the 1956 Act, which sat around on the statute book before the 1997 Labour Government conducted a sex offences review. Clearly, this anomaly has not been corrected.

This particular offence is very grave, and it should never have had a time limit. In criminal law, we understand why certain lesser offences should be time-limited. We would not want every ordinary common assault or minor act of shoplifting not to be subject to a time limit, with this sword of Damocles potentially hanging over young people for the rest of their lives. We understand the public policy reasons to have time limits, but I suggest that to have them for such grave offences is contrary to the rule of law and fundamental human rights. The anomaly to which my noble friend Lady Kennedy of Cradley spoke so well clearly puts this jurisdiction in violation of Article 3 of the European Convention on Human Rights, and probably Article 14, on account of the various types of discrimination that are also involved—between not just boys and girls at the time, but children and adults who did not consent. We rightly assume that young children do not have the capacity to consent.

My noble friend Lady Kennedy is so right that the rule against retrospectivity is a presumption against changing the substance of a criminal offence. She put the point well: it is not there to prevent us from dealing with procedural obstacles that are unconscionable, as she is attempting here. So I see no problem at all with retrospectivity, because it would be contrary to any notion of human rights or justice for a defendant charged today, tomorrow or as soon as this is enacted, to argue that he thought he was in the clear because enough years had passed since this terrible crime. Even with substantive changes to criminal law, there have been exceptions to the presumption against retroactivity, as we saw in the higher courts some years ago when the position on marital rape was changed. In one case, the defendant said, “This is not fair; I raped my wife when I thought I was allowed to.” In any event, this is a procedural matter that is standing in the way of dealing with a terrible anomaly and human rights violation that will be ongoing unless we deal with it.

As to Amendment 292C in the name of the noble Baroness, Lady Newlove, and her supporters, common assault can be a minor enough offence in certain contexts, such as the two young people who have a fight. It is fine to leave a short time limit for that, but domestic abuse is a very particular context in which the victim, whoever in the family they are, may well still be in the abusive situation within those two years. Rather than create a separate specific offence of common assault domestically, why not deal with it in the fairly neat way that the noble Baroness, Lady Newlove, has?

If the Minister or his colleagues disagree with me, no doubt they, with the aid of parliamentary counsel, can come up with the right fix. However, I say to this Committee that both of these matters need to be dealt with not in future but with this vehicle. Frankly, there are lots of things in this very large Bill that I do not agree with, but the Bill would do something good if these two matters were tackled immediately.

[Lord Russell of Liverpool (CB)]

My Lords, I was very happy to put my name to the amendment in the name of the noble Baroness, Lady Newlove, but first I will refer briefly to Amendment 277. The first thing I have to say is that, as any inhabitant of the West Midlands will know, the noble Baroness who moved the amendment is the noble Baroness, Lady Kennedy of Cradley. It is pronounced “Cradely”, not “Cradley”—it is a bit like “Chumley” instead of “Cholmondeley”.

My second point is this: the point made by the noble Baroness about the amount of time that sometimes elapses before individuals feel able to come forward is a moot one. Yesterday evening, I watched a new programme with my daughter. It was a documentary on a well-publicised streaming platform that begins with the letter “N”; I will not advertise it here. The programme is called “Procession” and deals with the way in which five men, all of whom were the victims of predatory Catholic clergy 30 to 40 years ago, have finally started being able to talk about what happened to them and come to terms with it. When something like that happens to one at that age—in this particular instance, these young men were even younger than the people we are talking about, aged between 13 and 16—it does not take a brilliant imagination to work out the sort of trauma that it must instil in people and how difficult it can be even to recognise it oneself, let alone bring oneself to talk to others about it. The noble Baroness’s point was well put; it will be hard to disagree with her.

On Amendment 292C, first, I put on record my thanks—indeed, our thanks—to Yvette Cooper, who has been pursuing this forensically in another place. Her latest attempt was made today when she asked the Home Secretary directly what her view on this is and whether anything will happen. I am not clear why we are debating this amendment at all because, on 5 July, Victoria Atkins, now in the Ministry of Justice but the then Home Office Minister, said this in the House of Commons when talking specifically about this same amendment:

“We take this issue very seriously, and I can assure the House that we will return with a proposal at a later stage. I certainly do not rule out an amendment, if appropriate, in the Lords. This must be looked into”.—[Official Report, Commons, 5/7/21; col. 572.]


There it is on the record.

As the noble Baroness said, the Home Office seems to have developed a sort of hotline with certain reporters in the BBC, where certain potential developments are briefed to the BBC, which puts them out fairly prominently. There is then complete radio silence; there is no acknowledgement by the Government or Home Office in any way, shape or form that a briefing took place, so we are left in a slight quandary as to whether it did or not. Unlike some noble Lords, those of us on the Cross Benches have a high enough regard for the BBC that we tend to believe it when it comes out with something like this, so I find this practice of putting these things out into the public domain then saying nothing about them somewhat unhelpful. Frankly, it is a sort of legislator abuse since many of us are trying to do our best in talking on behalf of others and it is confusing when the Government apparently say one thing to the media and then stand at the Dispatch Box and say something similar to what they have been saying, sometimes for many years. My noble friend Lady Newlove put the case clearly.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy of Cradley, for her amendment.

For the victim of a crime to be told that the culprit cannot be prosecuted because a time limit has elapsed would doubtless be the cause of, at the very least, dissatisfaction and, at the very worst, anguish, and may very well lead to a loss of confidence in the criminal justice system. That is why, in respect of offences that are serious enough to be capable of being tried in the Crown Court, such time limits are virtually unknown in our system of criminal law in England and Wales. That differentiates England and Wales from many other jurisdictions, where time limits apply even to the most serious offences.

In England and Wales, the only exceptions are certain customs offences and offences of unlawful but consensual sexual intercourse, which I shall refer to as USI, with a girl aged 13 to 15 years committed before 1 May 2004, when the Sexual Offences Act 2003 came into force. The statute which that Act replaced, the 1956 Act—I extend apologies to the noble Lord, Lord Ponsonby of Shulbrede, for yet further legal history here—included a requirement that a prosecution for USI with a girl aged between 13 and 15 must be commenced within 12 months of the offence. That requirement was highly unusual even when it was enacted, and it was duly removed by the 2003 Act. I am sure that members of the Committee will echo the words of the noble and learned Baroness, Lady Hale, quoted by the noble Lord, Lord Thomas of Gresford, in relation to the 1956 Act.

That was an anomaly, as the noble Baroness, Lady Chakrabarti, and other noble Lords have described it in our discussion today. However, when it was removed in 2003 it was done so only prospectively, from the point when the Act came into force; in relation to offences that would fall to be charged under the 1956 Act, the time limit remained.

As your Lordships are aware and have heard again today, Parliament usually acts on the principle of non-retroactivity. Removing the time limit in circumstances where a prosecution was already time-barred, while it would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, would have exposed a person to criminal liability where there had been none before. Thus, Parliament’s aversion to retroactive legislation also applies to fundamental procedural preconditions for the bringing of charges against an individual. In relation to that—the point was canvassed by the noble Baroness, Lady Chakrabarti—I make reference to the case before the European Court of Human Rights called Antia and Khupenia v Georgia. Oh, for a Lord Russell of Georgia, that I might be corrected for any mispronunciation of the names of any plaintiffs in that matter.

For that reason, we do not consider it would be right to disregard the time limit in the increasingly rare cases in which it would apply. Since the changes in the 2003 Act were not made retrospective at that time, I submit that it would be difficult to justify now extending them to cases in which prosecution has been time-barred for at least the intervening 17 years—even allowing for the development in our understanding of sexual crime, as referred to by Members of this Committee who contributed to the debate.

I join the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Russell of Liverpool, and others in acknowledging the skill and humanity with which the noble Baroness, Lady Kennedy of Cradley, presented her amendment to the Committee. I am grateful to the noble Baroness for expressing a willingness to meet. I would be delighted to meet her at any time, but I think it would be more convenient for her, for the purposes purely of this amendment, to meet with my noble friend Lord Wolfson of Tredegar, the Minister in charge. I have taken steps by electronic means during the discussion in the Committee to arrange that my noble friend is made aware of her desire to meet, and an appointment will be fixed.

[Baroness Chakrabarti (Lab)]

Obviously I will go and read the Georgian case—I will call it “the Georgian case” so as not to repeat my earlier offence in relation to my noble friend—but, before any meeting, I will just say one thing. The Georgian case is now being cited as the reason why the Government will not move in my noble friend’s direction. I repeat my concern that we are currently in breach of the convention on human rights, not in relation to an Article 7 point but in relation to an Article 3 violation in relation to any woman, of whatever age, who now says “My statutory rapist will not be dealt with”. The Georgian case is up against cases such as X in the Netherlands and all the other cases where people were barred from getting redress in the criminal courts. That needs to be considered by the Minister as a senior law officer in Her Majesty’s Government.

If our positions were reversed and I had to face these two potential challenges in the European Court of Human Rights—a man who says “I had the opportunity to run Lord Pannick’s arguments about delay but none the less I was convicted of a historic statutory rape and I say that is a violation of my Article 7 rights” versus a woman who says “My rapist was not dealt with because of this time limitation”—I know which of those challenges I would rather defend as Her Majesty’s Government.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Barker (LD)]

My Lords, we clearly have a division in the House about the merits of this amendment. There are those of us who quite clearly understand the way in which the terms “sex” and “gender” are used and have been used, not just in this country—under several bits of legislation, most importantly the Gender Recognition Act—but also in international law. There is a growing body of international law in which “gender” and “sex” are well understood.

I simply want to ask the noble Lord, Lord Wasserman, to explain three points that he made in his speech. First, he said that the intention of this amendment was to keep the public safe by the accumulation of accurate, appropriate, timely and consistent data. If that data is not aligned with a person’s gender identity, then it will not be accurate, so how can he ask us to accept it? Secondly, he told us that we should not get bogged down in modalities, but this is about a very practical exercise of gathering data, not in a theoretical way and not on the basis of gender-critical beliefs but actually on the basis of people’s lives. Does he not think that this is important enough detail to put into primary legislation? Finally, he said that experience has shown that it was very useful to gather information about sex and gender. Whose experience? Can he give us more information about that?

[Baroness Chakrabarti (Lab)]

My Lords, I will speak briefly. I thank all noble Lords who spoke to this. It is a controversial amendment, but I think it has been spoken to quite sensitively, all things considered; maybe it is the lateness of the hour—maybe that was a good move.

I agree with the previous speaker that difficulties in the drafting of an amendment cannot just be dismissed as modalities because when we put forward draft amendments to legislation and say “must” we need to examine what that means. If, as the amendment suggests:

“Police forces in England and Wales must keep a record of the sex registered at birth of each person”,


how is that going to be executed and what will the consequences be? One has to imagine that one is a younger version of the noble Lord, Lord Paddick, in the police station back in the day. People turn up to record whatever it is—a theft, shoplifting, burglary, or a violent offence. How is this recording of the birth sex as well as the subsequently declared gender going to happen and what is the sanction for the “must”? That is not a modality, it is what law requires; there have to be consequences to a “must” being breached. Whatever is really going on, I know there are really sensitive issues in our society at the moment of sex and gender which we will not, I suspect, resolve tonight—we might, but maybe not.

I agreed with my noble friend about the value of data. Whether in the health service or criminal justice system, data is great, but there is another side too, which I think my noble friend acknowledged: that data will put some people off. There are other jurisdictions not far from here where people are really nervous even about declaring their race because of obvious historic reasons for being sensitive about declaring your race at the police station—let alone declaring your birth sex.

We need to see the yin and yang of this particular debate. On the one hand is the brilliant research and analysis of crime we could do if we had more and more data. But on the other hand—and this is not completely different from the previous debate—what we want is victims to come forward and criminal justice to be done. We do not want to do anything that discourages victims from coming forward and reporting crime. That includes people who feel anxious about certain sensitive pieces of information about themselves. We would never want them to put off going to the police station for fear that they say too much. For instance, a person who has been burgled thinking “Was I burgled just because I was burgled, or because I am a trans person? Do I really want to draw more attention to myself because I am an anxious victim of crime?” We need to think about that, let alone the poor old practicalities for a younger version of the very youthful-looking noble Lord, Lord Paddick.

[Lord Paddick (LD)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, for introducing my speech. This amendment is designed to compel police forces to

“keep a record of the sex registered at birth”

of anyone who is a crime victim or who is arrested by the police for a crime. It also forces the police to

“keep a record of the acquired gender of each person with a gender recognition certificate”

who is a crime victim of crime or is arrested for a crime.

It also says that providing this data to the Secretary of State will not be an offence under the Gender Recognition Act. Again, I want to try to focus on the amendment and not get drawn into the wider debate, as far as I can. As the noble Baroness pointed out, I was a police officer for over 30 years, so I want to look at this from the perspective of the police.

How will a police officer know what the sex registered at birth is—thumbscrews, or a chromosome test—even without the consent of the victim? Maybe they could force victims to give their fingerprints, in the hope that they may have had their fingerprints taken before they transitioned and that will prove it—except they may have had them taken after they transitioned, and that will then show their acquired gender, so that will not work. Will victims have to produce their birth certificates before they are even allowed to report a crime? Of course, if someone has acquired a gender recognition certificate and used it to have their birth certificate changed, as they are legally allowed to do, the birth certificate will show their acquired gender, so that will not work either. How exactly will police forces keep a record of something they do not know and have no reasonable way of finding out unless the victim or perpetrator volunteers the information?

If the victim or the perpetrator is a trans person, they are legally protected from having to disclose that information. “Well, it’s obvious,” some people will say, “you can tell, can’t you?” I have met trans men who you would never believe were assigned female sex at birth and trans women who you would never believe were assigned male sex at birth. I have also, embarrassingly, been with a lesbian friend of mine, assigned female sex at birth and who has always identified as a woman, who was stopped going into a women’s toilet in a top London restaurant because they wrongly thought that she was a man.

The supporters of this amendment may say that if they do find out, maybe the police can record it—that maybe the victim is reporting a transphobic hate crime or for some other reason volunteers that information.

The second part of the amendment is totally unnecessary. Section 22(4) of the Gender Recognition Act 2004 already states:

“But it is not an offence under this section to disclose protected information relating to a person if … (b) that person has agreed to the disclosure of the information”—


for example, if they are the victim of a trans hate crime—or, as stated later in the same section, at paragraph (f),

“the disclosure is for the purpose of preventing or investigating crime”.

So the police can use that information already, without fear of being prosecuted. The amendment is not necessary if the victim or perpetrator volunteers the information.

My noble friend Lady Brinton asked if she would have to declare every time she becomes a victim of crime, even if it is a burglary, that she has a disability? What about me? Will the next step be that I have to tell the police that I am gay before I can report that my flat has been broken into? For what purpose should victims have to out themselves? What if I get caught stealing a bottle of Marks & Spencer Prosecco?

[Baroness Chakrabarti (Lab)]

You can do better than that.

[Lord Paddick (LD)]

It is very good, actually; I had some on Saturday. I have not tried to do that but if I did, will I have to admit being gay, as well as being a shoplifter?

In 2018, the Government tentatively estimated that there were between 200,000 and 500,000 trans people in the UK. Noble Lords have said they like data; I am going to give them lots of data. Between the Gender Recognition Act coming into force and 2018, 4,910 trans people have been issued with a gender recognition certificate. If we take the top of the range of the estimate, I make that 0.75% of the population identifying as trans and 0.0076% of the overall population having a gender recognition certificate, or less than one in 10,000 people.

Even if a victim went through the whole criminal justice process without disclosing, and without the police establishing the sex assigned to them at birth, if they were a trans woman, it would increase the number of woman victims, and if they were a trans man, it would diminish the number of woman victims, and taken together, and taking account of the total number of trans people, it would even out. Taking into account that only a fraction of them will become victims of crime who report it to the police, any difference to the crime statistics will be statistically insignificant.

The police arrest, on average, 12 in 1,000 people each year—three in 1,000 women. I do not know how many of the estimated 7.5 in 1,000 trans people are trans women and how many are trans men. Of course, if trans women are counted in the female offender figures, they will also be counted in the female population figures, boosting both the numerator and the denominator. I was never any good at mathematics—I left that to my twin brother—but it is quite clear to me that trans people are not going to make any statistically significant difference to the crime figures unless we assume, and there is no factual or statistical basis to think otherwise, that trans people are more likely to commit crime or to commit particular types of crime.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Ashton of Hyde (Con)]

If the Committee will allow, I can answer some of these questions. We intend to have an Order of Consideration Motion so that, on Report, items will be taken as much as they can be in the same order as they are in Committee—so there will be plenty of time to consider these matters. We have discussed, in the usual channels, how the arrangements for this Bill should take place. I completely accept that it might go quite late tonight. We have spent a lot of time on this Bill—I accept that. But this is the Committee stage, and it cannot go on for ever because, if it goes on and on, the House of Lords looks as if it is preventing the Bills that have been passed by the House of Commons from going ahead.

The noble Lord shakes his head. As my noble friend the Minister has said, there has been ample time to talk about this Bill—and all we are saying is that, after three extra days, we have to draw this to a conclusion at some stage. This is not an unreasonable number of amendments to deal with—we have often done this in the past. The key, of course, is that we actually get on with it and that noble Lords have a view to the rest of the Members of this House. None of us wants to stay up too late. It is perfectly doable to have this number of groups—we have done it before—if noble Lords are able to be brief and succinct and make their point.

On the government amendments, the idea of having them in Committee is that we can debate them today. My noble friend has said that she will withdraw them, and that allows Report to go ahead—and, if necessary, noble Lords can vote on them.

[Baroness Chakrabarti (Lab)]

My Lords, I do not want to elongate this procedural debate before a lengthy debate that we are debating the length of, but the protest provisions in this Bill have been some of the most contentious—and not just in your Lordships’ House but in the country. They are not the final provisions or the final part of this Bill, even, yet they have been saved for the latter stages of this Committee, and the later hours of this last day will include this raft of new and even more contentious amendments. That is the reason for this suspicion and the concern that your Lordships’ House has not been shown the appropriate respect of a second Chamber in a democracy, when dealing with provisions that are, arguably, contrary to the human rights convention, and are certainly thought to be very contentious and illiberal by many communities in this country.

[Baroness Jones of Moulsecoomb (GP)]

Something that we did last week was to start early. Why could we not start earlier today so that we did not need to go into the early hours of the morning? We could have started at 10, which would have been a reasonable start for most people.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My intention was not to leave out that issue; we could have a whole debate on the effect of childhood abuse, trauma and witnessing violence on the future prospects of a person when they become an adult and their increased likelihood of going on to abuse, but my intention was not to dismiss it. I apologise that I did not mention it, but the intention certainly was not to dismiss it at all.

Finally, I move to the amendments in the name of the noble Lord, Lord Best. As I said, the time has come to reconsider the Vagrancy Act—some of the language that was used is so antiquated that it would perhaps be alien to some of this generation. I agree that nobody should be criminalised just because they have nowhere to live. Back in 2018, we committed to review the legislation following mixed views among stakeholders regarding the continued relevance of the Act, given that it is, as noble Lords have said, nearly 200 years old. I am sure that noble Lords can understand that announcing the outcome of this review has been delayed by several factors. One noble Lord mentioned the dedicated response for vulnerable individuals who are sleeping rough during the pandemic, which was outstanding.

It has been imperative to understand the full picture of how and why the Vagrancy Act is used, and what impact any change to or repeal of the Act will have. Rough sleeping and begging are complex issues, and the Act continues to be used. The review considered a range of factors and at its heart has been the experiences and perceptions of relevant stakeholders, including local authorities and the police. The Act continues to be used to tackle begging, and, if repealed, a legislative gap would be left that might impact on the police’s ability to respond to it.

The Anti-social Behaviour, Crime and Policing Act 2014 is not an alternative in this context. The powers in the Act are available to police and local authorities to tackle specific forms of behaviour that meet the legal tests in that legislation—for example, behaviour that is likely to cause harassment, alarm or distress to a victim or community. As I have said, begging is complex, but plainly it does not always come with these forms of accompanying behaviours.

[Baroness Chakrabarti (Lab)]

I did not speak earlier to save the Committee’s time and please the Government Whips, but I now have two short questions in relation to the Minister’s answer.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

When I voiced my support for something needing to be done about the Vagrancy Act, there was a general acknowledgement that something needs to be done about it. I extend the invitation to the noble Lord, Lord Best—and, indeed, to my noble friend as well if he so wishes—because it would be an important discussion ahead of the next stage. What I was trying to say in my rather long-winded explanation is that there are some complex things in the Vagrancy Act that need to be unpicked and understood, with consideration of the legislation on the back of that.

[Baroness Chakrabarti (Lab)]

I hope that this is an appropriate time for me to ask the Minister two questions in relation to her answer on this group.

First, in contrast with the Minister’s answer to the subsequent amendment in the name of my noble friend Lady Armstrong of Hill Top, the answer to Amendment 292H in the name of my noble friend Lady Blake seemed to be that there are adequate powers for local authorities and the police to work together to protect people from unlawful eviction. However, there is obviously a difference between powers and duties. The intention behind this neat and compelling amendment is to do what the Government have tried to do in other aspects of this draft legislation: create a duty for people who already have powers to prioritise a problem and work together. Why not prioritise protection from eviction in the way that other types of crime have been prioritised, with duties and not just powers, in other parts of the Bill?

Secondly, I listened carefully to the Minister’s answer on vagrancy. I do not understand why, if begging is not causing harassment to people, it is a crime at all. The Minister talked about two sides of the begging problem: it is bad for the person who has to do it and potentially bad for the people who experience it. If it is bad for the people who experience it, there are, as the noble Lord, Lord Sandhurst, set out, adequate criminal laws, whether in anti-social behaviour or in other legislation, that cover unwanted harassment. If it is just about protecting people from unhealthy behaviours, we do not do that by criminalising people for being desperate and poor. When she meets her noble friends to discuss this amendment, will the Minister look at whether this review cannot be speeded up in time for Report? The Government seem able to move very quickly when it comes to adding extra powers to suppress protests, but it takes hundreds of years to repeal the Vagrancy Act.

[Baroness Williams of Trafford (Con)]

I am sure that, when my noble friend and the noble Lord, Lord Best, meet Minister Hughes, they will cover some of the points made by the noble Baroness.

I do not think that this is about an acknowledgement that there are adequate powers; it is about the application of those powers. As I said to the noble Baroness, if there are deficiencies in collaboration at the local level, it would be helpful if they were brought to my attention.

--- Later in debate ---

I suppose my question to the noble Lord, Lord Coaker, is: who decides which political demonstration outside a school is acceptable? Would he ban all parents’ demonstrations, or just the ones he disapproves of? These are morally and politically delicate dilemmas, and I argue that legislative changes should not be rushed through.

[Baroness Chakrabarti (Lab)]

In response to that and in support of the broad thrust of my noble friend Lord Coaker’s probing amendment—I think it is fair to call it that—I have long had concerns about public space protection orders in general, and I defer to no one as a civil libertarian, but there is a great tradition in human rights thinking for child protection. So my instinctive response to the noble Baroness is that it is not because the protesters are anti-vaxxers and I disagree with them, it is that it is at school. They are young and potentially vulnerable people, and it does not seem proportionate or fair to me that we as grown-up legislators in this place take greater protection for our immediate vicinity than we give to even primary school children up and down the country, regardless of the nature of the protest.

The point about free speech and freedom to protest being a two-way street is incredibly important, and I suspect that we will return to it in a forthcoming group, but on this issue, for me, at least, the principle is not that I think that this is dangerous speech or disinformation—it is out there anyway online, et cetera—it is that no young person, particularly a very young person, should be subject to an aggressive demonstration, whether or not it is one that I would approve of, on their way to or from school.

Some of us remember the Holy Cross school dispute in Northern Ireland some years ago. The reason why Her Majesty’s Government had to intervene with soldiers, and so on—it was tragic—was not to take sides in the dispute, it was to protect young children, who do not have the same robustness as an older person and should not feel scared on their way to or back from school. I would take that view whether or not the protest by adults from outside the school community was one with which I agreed—about the climate catastrophe or whatever else it happened to be.

It is so important at this stage in the evening, before we get to the next group, to introduce the concept of the two-way street in relation to free speech. So I support my noble friend Lord Coaker in the thrust of his amendment, about schools being special—particularly primary schools, but possibly also secondary schools; that will be up for more detailed discussion—and needing some level of protection from whatever kind of protest by people from outside the school community.

I add that caveat because I think children should be able to protest themselves if they want to. I would not want inadvertently to do anything that caused criminal sanction for children and young people who chose to launch their own protest about whatever it was.

I see this very much as a probing amendment, but the status quo, whereby we have these protections as legislators in the vicinity around the Palace of Westminster —and companies have greater protections from pickets than primary school children have from aggressive demonstrations from whatever quarter—does not seem right. Human rights principles are: always protect children first, and any interference then has to be necessary and proportionate. But equal treatment and the two-way street, particularly in relation to freedom of speech and the right to protest, are crucial.

[Lord Paddick (LD)]

My Lords, I thank the noble Lord, Lord Coaker, who moved the amendment, which is about the need for fast-track exclusion zones around schools to prevent, in particular, anti-vaccination protests in the vicinity of schools.

If she will allow me, I said to the noble Baroness, Lady Fox of Buckley, I think after we finished on Monday night, how important it is to have her voice in the Chamber to test these sorts of issues. All I would say to her on this occasion is that the amendment talks about “activities carried on” that have

“a detrimental effect on the quality of life for pupils and staff”.

So it is not simply a question of banning any demonstration in the vicinity of a school. It would have to have that detrimental effect. I understand that that is a subjective judgment, but at least there is something there, rather than just a blanket ban on anybody protesting about anything at all.

Noble Lords will not need me to tell them that this is not about protecting children, perhaps older school-age children, from not being vaccinated. It is about protecting the whole community because, as we know from previous times in the pandemic, there is a risk of schoolchildren infecting vulnerable parents and grandparents. We also know from the health data that being double-vaccinated does not necessarily protect you completely from the worst effects of Covid, and in particular long Covid, although it gives you much better protection. On the news yesterday, an expert was talking about the fact that, although Covid has mild effects on children, it is not known how much they could be affected by long Covid. So this is not simply about a demonstration outside a school; this is a wider public health issue. However, I understand that, although that is what the noble Lord, Lord Coaker, is aiming at here, the amendment, if passed, would have wider implications than just for anti-vaccination protests.

Amendment 292S, from the noble Lord, Lord Bassam of Brighton, relates to online racism against footballers and enabling football banning orders to be made against those guilty of online racial hatred directed at a member of a football team. He is probably the best-qualified noble Lord to talk on this issue, bearing in mind his experience on the Front Bench in the Home Office under the Labour Government who introduced the banning orders in the first place, and the beneficial effect that they have had in rooting out racism in football. It is a serious problem.

Talking about a hierarchy of diversity is fraught with danger. But, as a gay man, I have always considered racism to be a far more serious issue than, say, homophobia. Some people might argue against this; but I could conceal my sexuality if people from a different planet did not know who I was or what my background was. But you cannot hide your colour; you cannot avoid racism in the way that some gay people, at least, could avoid homophobia; it would not be obvious to people.

I do not know of any professional footballers who have been open about their sexuality, because of their concerns about being open about it. Hopefully, as years go by and social attitudes change, some professional footballers will be open about their sexuality. They should be able to benefit from similar protection, so this legislation should not exclusively provide protection for racism, which is the major issue at the moment, while professional footballers’ sexuality is not. This is a good idea, and hopefully the Government will discuss how this can be taken forward.

This group is diverse—not in the sense of “diversity,” but in terms of the different subjects covered. Amendment 292U, in the name of the noble Lord, Lord Faulkner of Worcester, highlights a loophole in the law. My understanding—although I am not sure as there was no explanatory note—is that it is unlawful for scrap metal dealers to pay cash for scrap metal, but it is not against the law to sell it on for cash. That is the loophole. A scrap metal dealer who surreptitiously acquires stolen metal could sell it on for cash, and the noble Lord’s amendment would disallow that. The payment would have to be made by a traceable means, thus clamping down in the other side of the transaction, which makes sense.

We have debated the issue of scrap metal and the impact on the railway system and churches, for example, and the problem with catalytic converters. As shortages of resources are exacerbated by countries coming out of lockdown and the demand for raw materials grows, scrap metal will become an increasingly important issue. Therefore, closing this loophole regarding the other side of the transaction seems sensible, and we support it.

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I appeal to the Minister to listen to the numerous groups from across the country and the political divide who have asked for the noise trigger to be removed from the Bill. I ask her, in doing so, to prove that the Government do indeed support free speech.

[Baroness Chakrabarti (Lab)]

My Lords, I have a duty, first, and then, I hope, the privilege to make some comments of my own. My noble friend Lord Hendy is unable to be here to speak to his Amendment 304, so, if the Committee does not mind, I will read his remarks in support of that before I make a few remarks of my own on this group.

He says the following: he is grateful to my noble friend Lord Hain for adding his name to the amendment and to me for reading these remarks. The Delegated Powers and Regulatory Reform Committee, under the excellent chairmanship of the noble Lord, Lord Blencathra, on which he has the privilege to serve, criticised in its report of 13 September Clauses 55, 56 and 61 of the Bill for the surrender of the definition of certain phrases to delegated legislation, thus bypassing the full scrutiny of primary legislation.

At Second Reading, the noble Lord, Lord Blencathra, emphasised that his committee took no position on the substantive provisions but recognised that they are contentious and should therefore be in the Bill. My noble friend Lord Hendy goes on to say that he and many other noble Lords supported that argument, but the Government have not taken heed of this criticism, and the power remains to define by secondary legislation some very contentious phrases in these sections.

I continue to support the committee and the amendments brought by noble Lords—particularly that of the noble and learned Lord, Lord Judge—to obviate this procedural but fundamental flaw, but Amendment 304 goes beyond the procedural to the substance of Clause 56. That clause will be the basis for yet further restriction on the right to picket in an industrial dispute. That is objectionable because the right to picket, still extant in UK law, is already constrained in law in multiple ways which go far beyond those imposed on other kinds of public assembly. Further restrictions on the right are simply not warranted. It would be tedious to review the law on picketing today. Suffice to say, it is already highly regulated by statute, case law and its own code of practice.

By the Conspiracy, and Protection of Property Act 1875, 146 years ago, it ceased to be a criminal offence to attend

“at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information”,

although the use of violence, intimidation, damage to property, persistent following, watching and besetting were all made statutory offences. From this beginning, the right to picket was established. It has been further restricted many times since, including by the outlawing of picketing of domestic premises. The current formula is Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992. It reads:

“It is lawful for a person in contemplation or furtherance of a trade dispute to attend … at or near his own place of work, or … if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”


The Act defines both “place of work” and a “trade dispute”.

I should add in relation to the latter, in case any of your Lordships were unaware of it—which I doubt—that collective action

“in contemplation or furtherance of a trade dispute”

will not be lawful without the prior fulfilment of many statutory conditions. These include service of a highly complex notice of ballot on every relevant employer; a ballot in favour, which must conform with complicated and demanding thresholds on turnout and majority; and service of an equally complex notice of industrial action on every relevant employer. There are many provisions regulating all this in detail and many other requirements, such as the provision of mandatory qualified scrutineers, full postal balloting—no workplace or electronic voting is permitted—and so on.

Case law has held that Section 220 on the right to picket does not protect against private nuisance—interfering with someone’s enjoyment or use of land—nor against public nuisance in the form of violence, intimidation, molestation, excessive numbers, obstruction, blockade or an unreasonable obstruction of the highway. There is no exemption from the criminal law or the law of trespass, so this is all covered.

The Code of Practice on Picketing—the latest edition of which is from 2017—is taken into account by the courts and runs to 19 detailed pages of guidance. The code provides, among many other things, that

“pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate.”

In consequence, a requirement that there be no more than six persons on a picket line is applied as though it was statute law by both the police and the courts.

As if that is not enough, the Trade Union Act 2016 imposed yet further restrictions. The union must appoint a picket supervisor to supervise the picketing. They must be an official or other member of the union familiar with the code of practice and have taken reasonable steps to tell the police their name, where the picket is to take place and how they can be contacted. The picket supervisor must be in possession of a letter stating that the picketing is approved by the union, which must be shown to the employer if sought. This is very highly regulated.

The possibility of flying pickets and anything else that any of your Lordships might think requires restraint has already been closed off. Surely all this is enough. Picketing in recent years under this strict legislative regime has not thrown up problems which require further legislative redress, yet Clause 56 will give the police the power, in many sectors, virtually to extinguish life from the remains of this emaciated right.

Among other things, the clause gives power to a senior police officer to impose conditions on an assembly where the officer reasonably believes that noise generated by persons taking part may result in

“serious disruption to the life of the community”

or

“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”.

Senior officers seeking the meaning of these phrases will not find them in the Bill, which does not define either. Instead, the Bill will give power to the Secretary of State to create definitions by regulation. We can only guess how the Secretary of State might choose to define these phrases. However, we have a strong steer as to what she currently has in mind, because she has provided a draft set of regulations in relation to the meaning of the phrases. There is not, so far as I can ascertain, a draft of regulations to define

“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”,

but the draft regulations that deal with a

“serious disruption to the life of the community”

state:

“It may be regarded by the senior police officer as serious disruption to the life of the community if there is … a significant delay to the supply of a time-sensitive product impacting on the community, or … prolonged physical disruption to access to essential goods and services impacting on the community.”


They go on to say that a

“‘time-sensitive product’ includes newspapers and perishable items”

and

“‘essential goods and services’ means … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … a place of worship … an educational facility … a service relating to health, or … another critical public service.”

If pickets in a trade dispute are successful in persuading workers not to cross the picket line, it is obvious that, depending on the nature of the employer’s business, picketing may involve significant delay to the supply of time-sensitive products or prolonged physical disruption to access to essential goods and services. Accordingly, under Clause 56, the assiduous senior police officer may well impose conditions on workers who legitimately but noisily picket their place of work in order to persuade others not to work during a lawful industrial dispute in relevant sectors. Such relevant sectors will be where the workplace is involved in the production or delivery of food, water, power, railways, buses, places, lorries, ships, newspapers, mail, TV, radio, film, education, health, local government and so on. It is hard to think of many workplaces at all that will not be included.

Though the Explanatory Notes to the Bill do not expressly refer to picketing in an industrial dispute, it is plain that these draft regulations have given the game away. Clause 56 is precisely aimed at picketing in a lawful industrial dispute, whatever other assemblies may also be impacted. Accordingly, Amendment 304 proposes to exclude lawful picketing—subject to all of that regulatory regime that my noble friend Lord Hendy sets out—in legitimate trade disputes from these additional restraints. The Minister is invited to agree the amendment in order to exempt picketing from this intended regime, given that it is so closely regulated.

I am grateful to the Committee for its patience in listening to my noble friend Lord Hendy’s rationale for Amendment 304. Perhaps I may be indulged in making just a few comments of my own about this whole group. I shall try not to hyperbolise but do my best to disagree well with the noble Baroness opposite. I do not think that noble Lords who have spoken and expressed their concern so far have hyperbolised. Let me try to explain why some of us are so desperately concerned about the impact on freedom of expression and freedom of association of Part 3 of this draft legislation.

If we take existing tests, there is so much law already on the statute book, some of it passed by Conservative Governments, much of it passed by Labour Governments—much of which I objected to at the time, alongside friends of mine in the Conservative Party. I may be wearing a red dress now, but it was not always the case; I hope noble Lords opposite will understand that. Free speech is a two-way street and, in my lifetime, no Government have been perfect when it comes to protecting it.

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[Baroness Jones of Moulsecoomb (GP)]

Respect goes both ways. The Government are not respecting this House.

[Baroness Chakrabarti (Lab)]

I am happy to wrap up. I am sorry, I had to read for my noble friend Lord Hendy, who had an amendment, and that took a little time. I beg your pardon; I will be very brief.

I have talked about the past—suffragettes and anti-apartheid, et cetera—and I have talked about Russia and China and the places that we have to persuade, in the current, dangerous world, not to suppress protest. The domestic context is that we have come out of Brexit, which was incredibly divisive; whichever side you were on, we know that it divided communities. I was subject to protesters who were very cross with me, and a little scary, but in the end, I put up with it. We are coming through a pandemic, and people are scared and very worried by climate change. I do not believe that oppressive powers giving this level of discretion to the police to suppress free speech will bring our communities together.

[Lord Walney (CB)]

My Lords, if I may, I will speak succinctly on the noise amendments. I appreciated what the noble Baroness, Lady Chakrabarti, said about the two-way street, favourite protests and standing up for all protests, but I wonder about the extent to which we are actually doing that. I listened carefully to the persuasive argument made by the noble Lord, Lord Coaker, in introducing the Opposition amendment on fast-track orders for schools. I also listened to the excellent opening speech from the noble Lord, Lord Dubs; if that is the kind of protest which is being restricted, I am sure that a majority in both Houses would vote against it. Opposition Members have spoken in favour of protections around schools, and I can very much see the case for protecting schools. But are we really saying that untrammelled noise cannot be intimidating and unacceptable, in the manner which the Bill attempts to frame as a problem?

Anti-vaxxers outside schools were given as an example. Are we saying that noise should not be a factor if anti-vaxxers are making a sustained attempt to disrupt Covid vaccine clinics? Another entirely feasible example is a far-right protest that was seeking to intimidate council workers using high levels of noise, because the council was volunteering to bring in refugees and a section of that community did not want that.

The question raised by the noble Viscount, Lord Colville of Culross, was pertinent: is existing legislation sufficient to deal with this? I hope that Ministers will address that point when summing up and in bringing the Bill to Report. I am much less comfortable with the rhetoric which simply cites noise as beyond the bounds of regulation in a legal framework. We all know that many protests are noisy—I would imagine that the majority of us in this Chamber have been on such protests—and that is a good thing. But it is surely not what this legislation is intended to debar.

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[Viscount Goschen (Con)]

My Lords, my speech can be very quick because I should just like to associate myself with the remarks of the noble Lord, Lord Hogan-Howe. It was an exceptionally informative and balanced speech about just how difficult these issues are and how difficult the job of the police is to draw that balance and get it right. We should all be extremely grateful that we are policed in such a consensual and high-quality way.

I spoke about this at Second Reading and we have had an exceptionally interesting debate here in Committee. I shall make just a couple of points. First, we ought to avoid, if at all possible, differentiating between good protests, on an issue that I agree with, and bad protests, on an issue that I disagree with. We should resist the temptation to talk about specific causes. The noble Baroness, Lady Chakrabarti, made that point in one of her two speeches; I think that it was the second one.

[Baroness Chakrabarti (Lab)]

Forgive me, but I did not make two speeches. I asked the Committee’s permission to read the remarks of my noble friend Lord Hendy because he could not be here to speak to his Amendment 304. I thought that I had the consent of the Committee. If I misunderstood that, I apologise, but I did not intend to make two speeches on my own part.

[Viscount Goschen (Con)]

My Lords, the noble Baroness spoke for nearly 20 minutes and I am attempting to speak for about two minutes.

We ought to avoid drawing the distinction to which I referred. However, there is a clear difference between a lawful expression of protest drawing attention to a particular issue, wanting it to be heard, and a deliberate and aggressive attempt to disrupt the lives of the general public. That is what we have seen over recent weeks. It is entirely reasonable that we look carefully at the current legislative settlement and examine what can be done with the existing powers. I hear the remarks made that the police have the powers that they need. Some feel that they do and others do not. That matter should be carefully looked at.

However, where there are gaps and where the police require additional powers to take those finely balanced judgments, it is entirely legitimate that we look at that in the Bill while maintaining a clear balance and making sure that we do not trespass too much on some of the issues that have been raised around, for example, noise. In essence, there are grounds for a constructive debate and finding that balance. It is never going to get everyone’s support but we all ought to look beyond the Westminster bubble and consider the reaction of the general public when they see their lives and critical national infrastructure such as transport being substantially disrupted and when the police are unable to deal with it effectively.

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[Lord Hope of Craighead (CB)]

My Lords, I put my name to Amendment 308 in the name of my noble and learned friend Lord Judge and shall say a few words in support of what he has just said. It was quite clear from the reply by the Minister to the previous group that these words, “serious disruption”, are the key to the proportionality of the clauses that we are considering. They are absolutely central to the whole proportionality of the scheme. Of course, if something does not amount to a serious disruption, the police take no action; if it does amount to that, within the ordinary meaning of the word, the police have authority to do so.

I mention that because, while I support entirely what my noble and learned friend has just said, there is an element of risk here, which I think the noble Lord, Lord Rosser, hinted at in his comments in the last group. It is the risk of lowering the threshold. Why else is the power being taken? If it is not in the present Home Secretary’s mind to lower the threshold, the risk is there. It is for that reason that I suggest there is a risk here that should be avoided.

There is also the point about the clarity of the legislation. One element of the rule of law is that the law should be accessible, and the more you attempt to define words by regulation and not in primary legislation, the more inaccessible the true meaning of the words becomes. It is not a way to go down—it is unnecessary, as my noble and learned friend said—and I hope very much that the Government do not proceed with this scheme.

[Baroness Chakrabarti (Lab)]

The noble and learned Lord is exactly right about this constitutional problem, but there is a further point to be made. In this context, it is not just the usual problem of allegedly unclear legislation that is then going to be sorted out by regulation later, and the relationship between the Executive and the legislature not as it should be. It is also in danger of interfering with police operational independence. To be explicit about this, my fear is that the police will take whatever view they take of what this legislation means in certain circumstances and do their best—and if a Home Secretary of the day, even well into the future, thinks that the police are being too lenient towards protesters, or perhaps there is a commotion in the media, regulations will be used further to define what “serious” and “disruption” mean so as to mandate the police effectively to be more heavy-handed than the natural meaning of the words would suggest.

[Lord Paddick (LD)]

My Lords, I can be relatively brief. Do not worry—it is a temporary blip.

Amendments 298, 308 and 319 question “serious disruption” being decided by the Secretary of State rather than being either defined in the Bill, as my noble friend Lord Beith proposes, or simply left to its natural meaning, as the noble and learned Lord, Lord Judge, suggests in his Amendment 308.

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[Lord Paddick (LD)]

My Lords, I apologise. I forgot to speak to five more amendments: Amendments 319Q, 319R, 319S, 319T and 319U, which remove the ability for SDPOs to be renewed.

[Baroness Chakrabarti (Lab)]

My Lords, I will be brief and not repeat the valid and chilling points that have already been made. I just say this: for me to even attempt a line-by-line examination of this whole suite of new amendments would result in not just the Leader coming in to censor me again, but me probably being arrested. I am not going to do that, but I will try to say two things that noble Lords have not said yet.

On locking on and in particular going equipped for locking on, and stop and search with or without suspicion of locking on, I am worried not about the glue referred to by the noble Lord, Lord Paddick, but about people with bicycle locks. I am worried about young people going about their business, sometimes riding to a demonstration or being in the vicinity of potential demonstrations, carrying bicycle locks. I cannot see how they are not potentially in jeopardy, en masse, of both the stop and search powers, and going equipped.

Secondly, as a former Home Office lawyer and a director of Liberty, to me, this suite of measures, which could be a Bill in itself, looks, smells and tastes a lot like anti-terror legislation of the kind that I have always opposed as being disproportionate and counterproductive. Whether it is the new orders, the stop and search powers, including suspicion, or offences including thought crimes, this new Bill within a Bill looks like some of the anti-terror powers that, when they were introduced, noble Lords opposite and elsewhere, and I and some of my noble friends—forgive me, I hope—looked the other way. Those powers have inspired what we see here, but this time they are not for terrorists but protesters.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the Minister gave a powerful justification for upgrading and updating the criminal law to deal with these new forms of protest. She made the point that the general public have had enough, and we recognise that. We have all seen instances of workers begging protesters to let them through to go to work, parents trying to get ill children to hospitals and so on. We have seen frustration turn to fury and people often taking action on their own, dragging protesters away as the police have stood by. At least this section of the Bill makes sense to me based on that motivation, but we have spent hours and hours on previous sections on banning the types of protest in Part 3, which was justified on the basis that it was dealing with those kinds of actions, when in fact none of the measures that we previously discussed would deal with them at all.

The measures that we previously discussed in Part 3 elicited some very fine speeches about the right to protest. I was struck most recently by the speech by the noble Lord, Lord Coaker, which I related to. We were probably on the same miners’ demos. It properly and entirely understood why people were demanding the right to protest. All those fine words were effectively shot down by the Minister on the basis that these are things that we need to do to deal with Extinction Rebellion and these different kinds of protest. In fact, the only dealings that I had when I got caught up in an Extinction Rebellion protest—I mean that I was trying to get through it, rather than that I was on it, in case anyone panics—was when they were doing a five-hour silent vigil in mime. There was no noise involved. But we have spent all that time discussing how noise is going to trigger the police having a huge amount of power to deal with those people.

I find it utterly galling, because now we have a set of amendments, and at least I can understand why the Government have brought them in—and the public will think that they will tackle what they are furious about—and we should therefore, in this House, be able to scrutinise them line by line, as has been explained. People will probably like the locking-on offence—I say “people”, meaning that there might be popular support for it. But the noble Lords, Lord Paddick and Lord Beith, have done a really good take-down of what the consequences of these measures would be beyond the headlines, and people might be less keen on the equipped to lock-on offence. Certainly, when they work out the frightening aspects of the serious disruption prevention orders, they might want to think again. The “causing and contributing to” aspect, as the noble Lord, Lord Paddick, noted, really is a very serious threat to free speech—absolutely. And this is a Government who claim all the time that they are here to defend free speech, but they are introducing, without even casually noting it, something that would absolutely have a damaging effect on free speech.

Maybe I am wrong, and maybe the Government could persuade us that these special kinds of protests need special laws, in which case we should have hours and hours to discuss it. Instead, here we are, fed up, having discussed a whole range of other legislation that was supposed to deal with these issues when in fact, it did not; and now, the things which might deal with those issues we do not have time to discuss. It is frustrating for all of us.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

Moved by

[Baroness Chakrabarti]

43: Clause 36, page 29, line 32, at end insert—
“(4A) The user may choose to be in the presence of the authorised person during the extraction unless either the user or the authorised person deems it impracticable or inappropriate, in which case an explanation must be set out in writing in the agreement referred to in subsection (1).” Member’s explanatory statement
This amendment, along with another amendment to Clause 36, page 29, line 32, in the name of Baroness Chakrabarti, would permit the user to choose whether to be present during the digital extraction, unless deemed impracticable or inappropriate; and create a statutory time limit for the authorised person’s retention of the device in the event that it is necessary to take possession of it. If the time frame elapsed without extraction taking place, a new agreement would need to be sought.

[Baroness Chakrabarti (Lab)]

My Lords, this group of amendments and the related clauses address the phenomenon that those unfortunate enough to have experienced it call digital strip-searching—the practice of demanding a complainant’s device, usually a mobile phone, in the police station in return for agreeing to pursue a criminal investigation, usually into an alleged sex offence such as rape.

I begin by thanking the Minister for taking the problem seriously and understanding the need to address it via statute. I am afraid that I remember Ministers standing at that Dispatch Box even a couple of years ago, denying that the practice was problematic, widespread or disproportionate and even arguing against the need for primary legislation—so-called consent, in exchange for a vindication of one’s fundamental right to an investigation into such a serious crime, being sufficient. Mansplaining to rape survivors is bad enough; “Baronsplaining”, if I may call it that, was a new level of insensitivity.

I will not insult the empathy of your Lordships’ House by reiterating why an extraction of data from a personal smartphone or computer is one of the most intimate searches in the modern era and can leave the complainant feeling more like a suspect, even if the extraction is swift and on the spot and takes no more data than is strictly necessary to the particular investigation. That successive Governments, DPPs and police leaders have failed to address this problem must have played at least some part in our appalling attrition rates for the prosecution of sex offences.

While this part of the Bill is a much-needed attempted correction, we would not need to amend it if survivor and human rights groups had been properly consulted. I declare an interest as a council member of the all-party group, Justice. Amendments 43 to 46, 48 and 51 in my name are advanced by a broad coalition of civil society organisations, led by Big Brother Watch, Amnesty International, the Centre for Women’s Justice and Rape Crisis. They are currently unconvinced that the Bill, either as it stands or with proposed government amendments, does enough to protect complainants and rebuild trust in the investigation and prosecution of sex offences.

Amendments 43 and 44 allow the complainant to be present during the extraction of data, unless that is impracticable or inappropriate, and create a time limit for any police retention of the device. Amendment 45 would make the threshold for extraction the tighter and objective ECHR test of strict necessity, and Amendment 46 would further tighten the criteria. Amendment 48 would allow a DCI review of the strict necessity of any extraction agreement, and Amendment 51 requires a fuller explanation of the person’s rights before they agree. I thank the noble Lord, Lord Paddick. Crucially, his Amendment 50 ensures that the explanation is given orally, as well as in writing. My noble friend Lord Rosser’s Amendment 52A makes provision for data in the hands of a third party.

Government Amendment 52 in the Minister’s name creates a proportionality but not a strict necessity test for extraction where the authorised person is of the subjective view that there is a risk of obtaining confidential information—of course there is. Amendments 53 to 56 replace the need for regulations with the laying of statutory guidance.

The government provision still contains fewer statutory safeguards than sought by the victims’ rights coalition, so I urge the Minister to move further in its direction by accepting its amendments, refining or tweaking them at Third Reading or, at the very least—and before the preparation of any statutory guidance under the new legislation—agreeing to meet with a small group of those representing voices that have been ignored for too long. I beg to move.

[Lord Beith (LD)]

My Lords, I am ready to support the commitment of the noble Baroness, Lady Chakrabarti, in bringing forward this amendment, and appreciative of the Minister’s moves as represented in the government amendments. I simply want to clarify some points, because there are still concerns in this area. Some of the concerns arise from the context.

Police abuse of procedures of various kinds has been apparent, even to the extent of affecting murder victims. It cannot be denied that within police forces there are a few people who will do these things. That makes it that much more difficult to have complete confidence in the voluntary arrangements that these amendments deal with. I ask the questions: how voluntary, how confidential, and how about disclosure?

How voluntary? When someone is asked to hand over their phone, the police officer usually says, “It’s up to you but unless you hand over your phone to me, I can’t see the Crown Prosecution Service having enough material to take this case forward, and I think that would probably be the end of your attempt to get justice”. I am paraphrasing, but that might effectively be what he says. That means the safeguards are important, and I welcome them, but will they be sufficient?

How confidential? Government Amendment 49 says “confidential” has the meaning it has in Amendment 47, but Amendment 47 does not actually define “confidential”. Clearly, on somebody’s phone there is a great range of confidentiality: from what might be a conversation about an intimate relationship through to a bank account, a family row or something else that someone regards as in need of safeguarding and treating as confidential. We need to be a little clearer about that.

What about disclosure? Can the Minister say a little about to what extent, if any, the requirement of disclosing material to the defence is affected by these provisions? That puts a further pressure, of course, on the victim of the crime, but it is an essential part of our justice system that when evidence is found that would assist the defence, it is the duty of the prosecution to hand it over. These are the points that concern me.

--- Later in debate ---

In conclusion, I hope noble Lords agree that we have the balance right at this stage between the safeguards to appear in the Bill and the matters that are appropriately addressed in the accompanying code of practice. I hope, on that basis, and on the understanding that we continuing to examine the issue of third-party material, the House will support the government amendments in this group and be content not to move other amendments.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who spoke in this short debate. What a great team, and a model of brevity, clarity and compassion, if I may say so. I thank the noble Lord, Lord Beith, for his rhetorical prods, which highlighted why “strict necessity” should be the operable test here—and, of course, the noble Lord, Lord Carlile, for reiterating disclosure obligations and the nature of the abuse that has been taking place in this area for too long. He was the first to crystallise the intimate nature of the virtual world, which was echoed by the right reverend Prelate and the noble Baroness, Lady Hamwee, among others—thus making it so important that the police explain not just this material and what is going to happen to it but what the process will be thereafter, including potentially court.

The noble Baroness, Lady Jones, ever succinctly and pithily, pointed to the Hobson’s choice with which too many complainants have been presented up to now, and I know that the Minister understands that. The noble Lord, Lord Paddick, should never suggest that he has not been on the ball in relation to this group or any part of the Bill. He has been the most diligent of all the very senior retired police officers in your Lordships’ House on these matters. I am also grateful to my noble friend Lord Ponsonby for making the case so clearly in relation to third-party material; it will clearly need to be returned to in relation to the victims Bill. I am glad that the Minister does not want the police and CPS just to wait for that. It is about trying to improve things immediately; they have been too dilatory in this area for too long.

I shall not respond to each answer that the Minister so graciously offered, save to say that I am not totally persuaded. If anything, some of her answers actually pointed to the wisdom of these amendments. For example, she mentioned a number of times the principle of last resort before this material should be sought from a complainant. That is strict necessity—not the softer approach of necessity and proportionality, and I do not understand why that higher test should not be replicated. It is great that it is in data protection legislation, but why should it not, as a matter of good law and good governance, be in this legislation?

However, I shall not be churlish, because in both the tone and substance of her remarks, the Minister has been such a contrast on this issue with those who have sat there before her. While warmly accepting her invitation to meet with her later and the various organisations, I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

Obviously, that is linked with Amendment 89. Of course, Scotland has regularised its new age of criminal responsibility to 12. For many years, the age of criminal responsibility in Scotland was eight but in practice it was only ever administered at 12. I understand that the rules have changed in Scotland so now it is 12. That raises an interesting question about what would happen if an 11 year-old was living in Scotland but committed a crime in England. How would that youth potentially be brought to justice in England when what they had been alleged to have done would not have been an offence in Scotland? I am sure there will be an appropriate way of dealing with that situation. Nevertheless, the Labour Party’s view, and my view, is that the age of criminal responsibility should remain at 10. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords,

“No child should suffer such appalling abuse, especially from those who should love and care for them most.”


Who said that? It is not a Christmas quiz. It was the Minister repeating a sentence what feels like a long time ago, but it was earlier this evening in proceedings on this Bill in your Lordships’ House. What if the same child victim of cruelty or neglect survives and grows to act out as a damaged little person as a result of that neglect or abuse?

I am very disappointed to hear about my own party’s position on the age of criminal responsibility, not least because I was reading David Lammy’s comments in the Guardian just a couple of years ago in relation to concern that our age of criminal responsibility, at 10, is too young. I think that we as a society are failing some of our most vulnerable children, including victims of neglect and abuse, and we should not be criminalising them. Given what we know about child development, 10 is way too young. It makes us as a jurisdiction an outlier in the civilised world and that is not something to be proud of.

Perhaps understandably, much of the debate in Committee focused on some of the most notorious cases, including that of Thompson and Venables, but such horrific and notorious cases are few and far between. More often, we are talking about offences such as criminal damage, and it is often looked-after children who are criminalised for offences of that nature. They have already been let down in their lives by their natural parents and/or their adopted parents and are looked after by the state. They then get involved in something that is treated as criminal damage in a care environment and for which neither noble Lords’ children and grandchildren nor mine would ever be criminalised.

[Lord Ponsonby of Shulbrede (Lab)]

I have dealt with that exact point in my time as a youth court magistrate. It is not just children aged 10 or 11. In the past few years—let us say the past five years—I have never seen any child brought to court for criminal damage in their care home. They used to be brought to court because it was an insurance-related issue and a conviction was needed to get the insurance money, but that has been resolved as an issue. In my experience, care homes do not charge their children for criminal damage.

[Baroness Chakrabarti (Lab)]

I am grateful to my noble friend; obviously I do not have his personal experience as a magistrate but just today I looked at published statistics from 2018, which showed that a small number of children were criminalised for criminal damage.

Whether children end up in court or not, if they have criminal responsibility, they can be criminalised. They may never get to court—they may accept an out-of-court disposal—but they will be criminalised and will potentially have a conviction that follows them around for a very long time. This is amoral; it is not the way to treat a vulnerable little person who has probably been neglected and/or abused. They are not ready for criminal responsibility—they are not responsible. All the scientific evidence suggests that their brains are not developed enough at the age of 10.

We weep hot tears for these children when we see them as victims of abuse and neglect, but we do not do so when some of them manage to survive but act out in ways that children will. Some children will never be criminalised for minor theft or criminal damage because they have the protection of their privilege. Other children will sometimes be criminalised, which is wrong in principle and says something very embarrassing about this jurisdiction—even compared with the neighbouring jurisdiction north of the border, as my noble friend pointed out. I do not want to repeat what I said about this in Committee, but I thank and pay tribute to the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, who have campaigned on this issue for many years to stop us being an outlier in the world.

I note that next year my noble friend Lord Adonis will bring forward a Private Member’s Bill to lower the voting age from 18 to 16—something I will support but I suspect the Government will resist. The Government will insist on 18 for voting purposes and the age of majority, and perhaps take the view that children and young people are not mature enough to vote until they are 18, but heap criminal responsibility on them at the age of 10. That is a mismatch of eight years. Of course. children and young people—indeed, all people—develop slightly differently. Personally, in an ideal world, I would support 16 as a decent compromise. However, that is not the point.

The amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, to which I have added my name, settles on just 12. I am afraid that the fact that neither the Government nor my own party can support that, despite report after report from the UN on the UN Convention on the Rights of the Child, is an embarrassment. We are choosing some children over others. These difficult issues about children and criminality are always about other people’s children. However, the difference between believing in and promoting human rights and not doing so is whether you care about other people’s children, and not just at Christmas—and not determining, as a noble and learned Lord said earlier, who is naughty or nice but caring for everyone’s children and all children.

With that, I will spare your Lordships any more of my thoughts on this issue—I feel very strongly about it. I wish your Lordships and your children and grandchildren a very good Christmas when it comes.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Chakrabarti, and I agree with every word she just said. She noted that the UK is an outlier in the world in having an age of criminal responsibility of 10. However, I notice that my native Australia is now in the middle of the process of looking to raise its age from 10, which I think was inherited from UK law. With that development in Australia, we will be even more of an outlier.

I shall speak to Amendment 90, which appears in my name, but I stress that this is not in any way meant to compete with Amendment 89. I would support Amendment 89 but, like the noble Baroness, Lady Chakrabarti, I think it does not go far enough. My idea of a review is that if you were to hold a review, as the Justice Committee in the other place recommended last year, you would arrive at a figure higher than 12. Fourteen is the obvious one.

I apologise that I was not available to present the corresponding amendment in Committee because I was at the COP 26 climate talks. However, I thank my noble friend Lady Jones of Moulsecoomb for doing a great job of presenting it then, and the noble Baroness, Lady Chakrabarti, for supporting me at that stage. I also apologise for an administrative oversight on my part. There was extensive debate on the wording of proposed new subsection (2)(b). It was my intention to change the wording but I am afraid I did not. However, I hope noble Lords will look at the overall intention of this amendment rather than getting into the depths of discussion on the detail of the wording, since I have no intention of pressing this amendment to a vote tonight.

In particular, I want briefly to draw attention to proposed new subsection (4) in this amendment:

“The panel must consult with an advisory panel made up of young people currently and formerly in the youth justice system.”


There is a principle there that we should be following much more: people who have the lived experience of knowing what it is like to be the subject of the system have to be listened to, and we have to understand what the lived experience is like.

There is a risk in the situation I find myself in of thinking that everything has been said but not by me. I will try very hard not to do that. Rather than repeat all the arguments made in Committee, I will pick up one sentence said then by the Minister in response to the noble and learned Lady, Baroness Butler-Sloss:

“I have sought to set out why we believe that 10 is the correct age, given the way that our criminal justice system deals with children.”—[Official Report, 17/11/21; col. 263.]


In that context, I point to comments made by the former Children’s Commissioner, Anne Longfield, in late 2019. She called for a wholesale review of the youth justice system, saying that the youth court was

“not a child-friendly environment where you could really help a young person and is not meeting standards that we had hoped.”

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

102: After Clause 172, insert the following new Clause—
“Duty to establish statutory inquiry into lessons to be learned from the death of Sarah Everard
(1) The inquiry into matters arising from the death of Sarah Everard, announced by the Secretary of State for the Home Department on 22 November 2021, is to be held as an inquiry under the Inquiries Act 2005. (2) The Secretary of State must ensure that the terms of reference of the inquiry include the wider lessons to be learned for the professional culture, funding, vetting and organisation of policing, the prevention of violence against women and the investigation and prosecution of misogynistic crimes.(3) If on the commencement of any provision of this Act, the inquiry does not have a panel of members which includes at least one member with experience in the area of violence against women, the Secretary of State must ensure that such a member is appointed.”Member’s explanatory statement
This amendment converts the existing Home Office inquiry into the matters arising from the death of Sarah Everard into a statutory inquiry under the Inquiries Act 2005. It also ensures that the Inquiry panel includes at least one member with experience in the area of violence against women and girls.

[Baroness Chakrabarti (Lab)]

My Lords, here we are, quite late into the evening, to discuss the group of amendments refined from amendments tabled in Committee in response to the horrific rape and murder of Sarah Everard and, I am afraid to say, a wholly inadequate response from some of the most senior police leaders in our country.

I do not want to dwell too much on this, but I do not think that it reflects incredibly well on the way we do business in your Lordships’ House that this group has miraculously come to be debated at this particularly late hour, not least given the fact that I have been around all day and have heard some very lengthy, florid, colourful, relaxed speeches on all sorts of subjects all afternoon and evening from all sorts of delightful Members of your Lordships’ House who have been infrequent engagers with this Bill and most of whom, for all sorts of reasons, are no longer here. I do not think that this self-regulating House has done justice to women and girls in this country, nor, indeed, have those who effectively control the agenda and have allowed this group to be opened at approaching 10.50 pm.

I feel the need to put that on the record for Hansard so that the various women’s groups and victims’ groups who have been waiting for this group to come up will be able to understand exactly what has gone on. I was particularly concerned about some of the debates that went on just before the dinner break with no concern for time—and sometimes not much concern for kindness or the dignity of our fellow human beings, but enough of that—no intention of a vote and no real intention of changing the law. I have also noticed the way in which some of us are censored for our length at strategic moments and others are not in this so-called self-regulating House.

This group deals not just with the Sarah Everard outrage but with the public concern about it and the way that women and girls have been treated in our criminal justice system more generally, and what that means for a crisis of confidence, potentially, in our police service, which is so essential to the rule of law.

I am grateful to noble Lords from parties and groups from all across your Lordships’ House for their consistent support for the calls for a full statutory inquiry, particularly into the broader matters arising from the Sarah Everard scandal. It makes the earlier remarks necessary. Of course, for all sorts of completely legitimate reasons—not least that people come from all over the country, have different health conditions and are of different ages—it is not possible for everyone who wanted to be here to be here right now.

Amendments 108 and 109 are in my name. Amendment 108 is supported by the noble Lords, Lord Carlile of Berriew and Lord Paddick, and the noble and learned Lord, Lord Garnier, while Amendment 109 is supported once more by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Garnier. These two amendments deal with the specific issue of it being lawful at present for arrested people—that is, people who are suspects but have not been charged and are therefore not defendants, or at least believe themselves to be suspects when they are stopped by a police officer, as poor Sarah Everard was—to be taken away in a vehicle by a lone police officer. Noble Lords, particularly those who have engaged with this issue and were here in Committee and at earlier stages of the Bill, will appreciate that that possibility has understandably caused a great deal of concern, in particular since last autumn when Wayne Couzens’s sentencing hearing revealed some of the truly horrific details of that case.

Amendment 108 would prevent a single officer ever lawfully taking suspects away in a vehicle. Amendment 109 takes a slightly gentler approach—helpfully suggested to me by the noble Lord, Lord Carlile, I might add; I am grateful to him—to the same problem. It does not create an absolute legal bar to a lone officer taking a suspect away in a vehicle, with all the dangers that that one on one creates for both the officer and the suspect; instead, Amendment’s 109 approach is to amend PACE—the Police and Criminal Evidence Act—so that the Secretary of State would be required to issue a full-blown PACE code of conduct to deal with the transportation of suspects.

Given who is left at this time of night, I know that the noble Lords here are engaged with these issues and understand the importance of PACE codes in particular. They are required in relation to things like detention and the questioning of suspects in a police station. Since 1984, they have been a really important protection for citizens in the police system. Amendment 109 is a new amendment—I did not table it in Committee—and I am very grateful to the noble Lord, Lord Carlile. I really want to hear any conceivable argument against this mild amendment, which would add “transportation” to the list of activities in relation to suspects for which the Secretary of State should issue full-blown statutory PACE codes of conduct.

When one considers Amendment 108—my previous amendment, unenlightened by the noble Lord, Lord Carlile—with its absolute bar on single officers taking suspects away, or the amendment to PACE, it is worth noble Lords remembering some of the quite bizarre and hubristic public comments that were made. They included, I am afraid to say, comments made by a police and crime commissioner who is no more, as well as by certain retired and serving police leaders, about women being naive in going along with a police officer who stops them late at night. They said that there is something wrong with them—that it is the woman’s fault. Some ridiculous public comments were made.

Equally, however, there were other comments suggesting that this practice should be changed and things should be done. If things can be done by way of police administration, why can they not be somehow reflected in this Bill? This would give greater confidence to the young women and girls in particular—wholly law-abiding people—who have been feeling such anxiety and such a crisis of confidence not just since Sarah Everard’s murder during a lockdown, at a very difficult time for our country, but since the Wayne Couzens sentencing hearing. I hope that I can persuade the Minister to reflect on that particular issue and on how to grapple with what I am proposing in Amendments 108 and 109.

Then, of course, we return to Amendment 102, which calls for a statutory inquiry. It is not only my repeated call: it has been a call from so many people. I am so grateful to my noble friends in the leadership of the Opposition, to the noble Lord, Lord Paddick, and his noble friends and to the noble Baroness, Lady Newlove. She and my noble friend Lady Lawrence are, in my view, two of the greatest champions of victims’ rights, cutting across all vested interests, all party interests and all bureaucracy. The noble Baroness, Lady Newlove, has been with me in relation to this amendment from the very start; it is nearly 11 pm, and she is still sitting there and is with me now. I thank her so much.

This is a call for a full-blown statutory inquiry, not an administrative inquiry, under the Inquiries Act 2005. It follows resistance and hubris, I am sorry to say, from senior police leaders who, as we obviously know by this time, do not want an inquiry of this kind. To put it in context once more—I know that I am taking time, but I feel the need at least to do this argument justice—I mention the relatively recent inquiry and damning report of the noble Baroness, Lady O’Loan. Not much longer than six months ago, she spoke about the obstruction that she faced from the Metropolitan Police—including from the commissioner, I am sorry to say—in reporting on the Daniel Morgan scandal. I need not paraphrase, because noble Lords have heard from the noble Baroness in the past and her report, including the shortened press summary, is there for all to read, along with her speeches in Hansard. She faced obstruction, and said specifically in her findings that she knew that she had been hampered by not having the statutory powers that would have been available under the 2005 Act. I give that as a piece of evidence in my call for a statutory inquiry into the matters arising from Sarah Everard’s murder.

I also give the tin-eared and insensitive—to say the least—policing of the Clapham Common vigil. We know in your Lordships’ House that this was contrary to the original working and decisions of the borough command and the police service on the ground, who were working with women’s and victims’ groups to facilitate a peaceful vigil. Senior leadership and senior officers in the Met decided that was not to be. We can now trace back the timeline, because it is all in the public domain if one takes the time to look at the newspaper reporting. We can tell that those decisions about the disproportionate, tin-eared and counterproductive policing of the Clapham Common vigil would have been made at a time when the senior police leadership knew things that we only now know about Wayne Couzens, what he had done—because he had interviewed at this point—his policing career, and various things that obviously went wrong. I know that that is embarrassing, but that is why we must have a statutory inquiry. All institutions made up of humans feel the need to close ranks when things terribly wrong. That is precisely the moment when outside forces, including your Lordships’ House, need to prevent that closing of ranks.

--- Later in debate ---

I hope that the noble Baroness will withdraw her amendment. Should she wish to test the opinion of the House, I would invite noble Lords to reject the amendment.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who stayed, even those who may have stayed under sufferance—I hope they will forgive me and understand how important this issue is to so many people beyond SW1.

Of course I have been in two, three and 15 minds about how to handle this, not least in the light of the previous vote on the adjournment, but I have to go back to the substance. I have to pay due respect to the speeches of the noble Baronesses, Lady Newlove and Lady O’Loan. I am not sure, in the light of their testimony, that I could suddenly pretend to be the grand old Duke of York—it is one thing to take your Whip on an adjournment vote. I believe in my heart that there will one day be a full-blown statutory inquiry into the wider issues that have just been highlighted by this horrific case. Noble Lords will have to tell their colleagues, friends and family how they voted when they first had the opportunity to do this. I have seen this time and again in my adult lifetime, with Governments and politicians resisting and resisting, and eventually, maybe years later, the argument for justice and the rule of law becomes irresistible.

On two points that the Minister made by way of reassurance, I am glad that there is now the new ethical duty for police officers to co-operate, but it is a disciplinary matter that would ultimately be in the hands of the police to deal with. If the police officer who does not want to co-operate, as is often the case, decides to retire, the ultimate sanction of dismissal will hardly give comfort. What if they are at the senior-most levels of policing in their non-co-operation? That cannot be equated with the power that statutory inquiries and judges have to compel witnesses or they are committed for contempt.

As for being “strongly guided” and “taking into account”, it is not the Minister’s fault, but there was an opportunity for the Home Secretary to announce that Dame Elish would have the final word on this, and we have not even gone that far. We are “strongly guided”, but we are not going to give this decision to Dame Elish, for whatever reason.

With respect, I do not think that we have gone far enough. I know that I may go down in flames, but I have to speak clearly to people outside this House. I have to do this out of respect for the noble Baronesses, Lady Newlove and Lady O’Loan. I want people to know that we stood for them, for the rights of women and girls in this country, and indeed for the reputation of the many decent police officers, including those whom we see here every morning and night when we come and go. We owe it to their honour. The right thing to do is to have a statutory inquiry, and I would like to test the opinion of the House.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness Thornhill (LD)]

My Lords, we on these Benches support the amendments in the name of the noble Lord, Lord Best, to which I have added my name. In view of the hour, I too will be brief, as the two noble Lords have already said it all. I thank the Minister for the time that she gave us both in meetings and in numerous emails. I genuinely believe that there is real commitment to undoing this blot on our societal conscience. Therefore, given the genuineness of that feeling, it is massively disappointing that it appears that the Government have decided not to seize the only opportunity that we can see in the legislative calendar to actually repeal this piece of legislation.

There is widespread support for repealing this Act. To do so would actually be popular and uncontroversial, unlike much of this Bill. It is unequivocally the right thing to do. The fact that in Scotland it has been repealed for years and that most police forces rarely, if ever, use the powers in the Act is surely evidence enough that, in reality, it is of little use in tackling the current issues of homelessness, where there are, as the noble Lord, Lord Young of Cookham, said, a raft of alternative measures at the disposal of the police and local authorities. It will be a great disappointment for many if this can is to be kicked further down the road. That is why, if it comes to a vote, we will be supporting the noble Lord, Lord Best. To steal a slogan from somewhere else, why do not the Government “Just Do It”?

[Baroness Chakrabarti (Lab)]

My Lords, your Lordships’ House can be proud tonight for seeking to prevent injustices well into the future, but in seeking to support the noble Lord, Lord Best, we can try to act on injustices that are nearly 200 years old.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we will be supporting the noble Lord, Lord Best, if he chooses to press his amendment to a vote. If I may refer briefly to my experiences as a magistrate, it is indeed true that we do not actually see this charge brought very often—of course, we do see beggars, but it really is not that often. It seems to me that there is widespread cross-party support for repealing the Act. A compromise has been put forward by the noble Lord, Lord Best, and I will be interested in hearing the Minister’s response. If the noble Lord does choose to press his amendment, we will support him.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

We exist to be an effective scrutinising House. After this, we will come to an IPP amendment. We went so badly wrong on that after full scrutiny. This is such an important measure. It is about a mandatory life sentence. Therefore, although I have thought earnestly about the advice I have been given, I have not thought it appropriate to withdraw my amendment. In those circumstances, I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of my noble and learned friend Lord Falconer of Thoroton, who is, as your Lordships will appreciate, a former Lord Chancellor and law officer.

I reiterate that the Government came here on 8 December to commend Harper’s law to your Lordships’ House. However, in the course of that debate, to which I listened with great care, concerns were raised by every single group in your Lordships’ House about the potential unintended consequences that went beyond the Harper’s law case—a case of severe criminality that included dangerous driving that led to manslaughter. In particular, one-punch manslaughter was raised by the noble Lord, Lord Paddick, and many other noble Lords; as my noble and learned friend said, there was huge concern.

The reason why my noble and learned friend Lord Falconer is right to ventilate this today goes beyond what we believe about Harper’s law, mandatory sentences, or even judicial discretion. All of these should be of particular concern to this second, revising Chamber. The reason he is right to ventilate this issue is that where significant, potentially controversial and rights-impacting measures are to be introduced, it seems to me—and I believe to other Members of your Lordships’ House—that there should at least be two bites at the cherry. The measures should at least be looked at twice.

Without the aid of my noble and learned friend, what will happen is this: it is presented and debated once in the second Chamber—not even in the first Chamber and then the second Chamber. The vote is on the same day and that is it—because, let us be honest, this is not going to have detailed consideration when your Lordships’ amendments go back to the other place. Whatever my noble and learned friend decides—and with the greatest of respect, I totally agree with the clerk about the irregularity of his amendment in terms of procedure at Third Reading—we are forced into a gentlemen’s agreement that is not reciprocated in the other direction. There must be adequate time, and it seems to me that, going forward, any significant and controversial measure must at least be looked at twice, so that there can be an opportunity to ventilate, study it, and correct any potential glaring, unintended consequences.

[Lord Grocott (Lab)]

My Lords, I came cold to this debate, as it were, to hear what was to be said. I am certainly not an expert on the law, but I have had quite a bit to do with the Companion over the years, and I remember vividly a time when it was quite routine, on Third Reading, to present amendments that clearly should have been debated earlier. The authorities of the House at the time—and I may have been part of that—decided that we needed to tighten up the circumstances in which amendments could be laid at Third Reading. But—and this is a huge “but”, which my noble and learned friend Lord Falconer has already dealt with—it was always assumed that there would be flexibility in the decision about the admissibility of amendments at Third Reading.

There were occasions—I would have come armed with them if I had anticipated this debate—when the usual channels would get together, during or after Report, and say, “Look we really can’t resolve this now, we need to put down an amendment at Third Reading”. Had it been challenged by either Front Bench or by anyone among the usual channels, that would have been resolved at that point. But nearly always, there was such a common-sense argument about, “Well, we’ll let this one go at Third Reading, the air needs to be cleared with this at Third Reading”, that it was agreed among the usual channels; it was never seen as completely Stalinist rule. Indeed, as my noble and learned friend has said, there is flexibility actually written into it. But I can say with confidence that this issue has been addressed in the past. It seems to me overwhelmingly the case, in the way my noble and learned friend described it, that quite clearly it should come within the auspices of the Companion, with the agreement of the usual channels, to be able to debate this hugely important issue at Third Reading.