Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Bach (Lab)]

My Lords, may I ask the Minister a question? A few years ago, when I was a police and crime commissioner, it came across our desk a lot that it was government policy to have a royal commission on the criminal justice system. What has happened to that proposal? Is it still there? Is it still the Government’s hope to do that? If it was, I would be very much in support of it. If it is not, I very much support the amendment that the noble Lord, Lord Marks, has moved.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have thought long and hard about this amendment, and I am still torn about it. The other evening, in that rather fractious discussion about trans prisoners in women’s prisons, the Minister rather took me up on my quotes from Twitter, as though I was using Twitter as hardcore evidence, which I was not. He made a valuable point, because he said that putting management and protection first was what was done, rather than following public opinion or what was on Twitter or anywhere else. I have some regard for that. In fact, I had made the same point to the Minister in relation to Harper’s law at the beginning of this Report stage, when I said that sentencing should not be a consequence of an outraged public reaction to something, a campaign or what have you. I would rather feel that sentencing was decided in the cold light of day, much more rationally, and so on. I worry about knee-jerk legislation.

I suppose I want to ask a couple of questions, of both the Minister and the mover of the amendment. Sentencing often seems subject to caricature on both sides. People are caricatured as bleeding-heart liberals who want everybody to be let out of prison, and anyone who is concerned about increasing sentencing is caricatured as “lock them up and throw away the key”. It seems to me that there needs to be some relationship between sentencing and the public and their views about it, but we do not want it to be arbitrary and reactive.

So, in that sense, I was very positive about the notion of a royal commission that could look at this in the round, take it away from the political world in some ways and allow, if you want, a more rational and considered public debate, as well as a commission looking at it in detail. That seemed to me to be a way forward.

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[Noble Lords]

Oh!

[Baroness Fox of Buckley (Non-Afl)]

I know that some may be shocked. I actually worry a lot about prison reform, authoritarian tendencies and prison being used as an answer to all problems. There are a lot of draconian aspects of the Bill—the threat of jail for protesters, for example, which we are about to discuss—and all these things concern me.

However, I would not want a royal commission to be there to endorse what I or the movers of the amendment want. Therefore, a long list of things that are wrong with long sentences does not seem to be the basis of a royal commission—I would want it to look at sentencing without prejudice and bearing in mind public concerns about safety. It is absolutely the case that, despite my liberal qualms, there are times when people should probably be locked up for longer—but the prisons should then be reformed to make them more humane while you are in them for longer.

[Lord Cormack (Con)]

Well, my Lords, I had never really thought of the noble Baroness as a bleeding-heart liberal, but we all come in different guises, depending upon the subject. I find myself very taken by many of the points made by the noble Lord, Lord Marks of Henley-on-Thames, and by many others who have long been learned in the law.

I spoke to my noble friend the Minister after what the noble Baroness referred to as the slightly fractious debate on Monday. Funnily enough, I said to him that I thought that a royal commission would be a good way—better than an amendment to a Bill—to look at the issue that we were discussing: women in prison. Of course, this provision in the amendment moved by the noble Lord, Lord Marks of Henley-on-Thames, could be incorporated.

On balance, I would favour a royal commission on the criminal justice system. I do not suppose that the noble Lord would be particularly opposed to that, rather than the specific amendment that he is moving today. But we need to look at these things because—coming back to a point made on Monday and today—we are failing in our criminal justice system because there is far too much recidivism and far too many lives are not amended and rehabilitated but further broken and eroded by spending time in prison. We have not got the balance right.

I have always been opposed to the simplistic view sometimes expressed, not by bleeding-heart liberals like the noble Baroness but by some on my own side: “Lock them up and keep them in.” That is no way to tackle things. So, although I would understand if, in responding to this debate, my noble friend the Minister said that he could not accept this amendment, I nevertheless strongly appeal to him on the Floor of the House, as I have privately, to consider very carefully the merits of a royal commission on the criminal justice system.

It can do no harm. We all remember Harold Wilson on royal commissions—they sit for years and take minutes—but that is not necessarily what royal commissions do. They can be given a timeframe or asked to report back within a certain period. If, by chance, my noble friend is not able to give the positive response I hope he might, we have many in your Lordships’ House who are indeed learned in the law, and this might be an ideal subject for one of the special committees that we set up each year in your Lordships’ House. It would have perhaps the most distinguished membership of any such committee ever established and I am sure it could make a powerful report, but I would still favour the royal commission approach. I hope that when my noble friend comes to respond, he will be able to give us some encouragement.

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[Earl Attlee (Con)]

My Lords, I have worked with the noble Lord, Lord Bach, for many years in this House —sadly, on opposite sides of it—but I have never heard him make a stronger argument for anything. The only reason why I cannot say that I will support him is because I have not written a little note to my noble friend the Chief Whip.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I cannot say that I know many teenagers who, growing up, aspire to be police crime and commissioners. However, I was convinced by the arguments made in Committee and I wanted to just make a couple of additional small points. For me it is not just about unfairness; there is a principle here. If you work with teenagers and one of them has made a mistake and has been fined or has broken the law in some way, you say to them, “Now we want you to rehabilitate and become a fine upstanding citizen”, and, “The world is your oyster and you can do anything.” I cannot imagine anything that is more proof of being fine and upstanding than growing up and then saying, “I want to be a police and crime commissioner.” I do not even know whether I agree with the idea of police and crime commissioners, but that is not my point.

The other thing, on a kind of principle, is that increasingly I would like public servants and people taking on roles such as police and crime commissioners to have some real-life experience—and that might involve youthful indiscretions.

I completely support the amendment. There are principles here that could easily be upheld by the Government simply accepting it; it makes perfect sense. I think even the public would cheer.

[Lord Sentamu (CB)]

My Lords, since I have been gratuitously referred to, I ought to say some words. Archbishop Robert Runcie said, “A saint is a person whose life has never been fully examined.” All our lives have never been fully examined, but I confirm that I never committed any crime at the age of 15 or 16, and have not done even now. Even if I committed one, I am already excluded from becoming an archbishop again because I am now 72. Age would discriminate against me and push me out.

What I do not get is why being a police commissioner is the only calling where there is discrimination if something was done at the age of 16. I would have thought that, 40 years on, the person has done their time. Yes, there is a record but it does not have to be the only thing over which you exclude them, because they have come on in age. In wanting to remove this for police commissioners, we are not sending out a message that it does not matter whether you commit a crime at the age of 16. We are saying: why is there this hindrance to this profession? Because one day I may become a saint and my life will never be fully examined, I want to vote for this amendment. I hope that the Minister will just accept it and it will be put into statute without more debates, because this just does not make sense. But I speak like a fool.

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It is a sensible amendment; it is a sensible way forward. There is no point of difference between the Government and us, except on the requirement for the legislation to allow immediate implementation rather than a delay caused by a consultation period. I beg to move.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, as has already been noted, I raised concerns about an earlier version of this amendment in Committee, when I argued that, ultimately, it felt like it was legitimising a climate of demonising protests based on a subjective assessment of whether those protests were politically approved of or not.

Specifically, this new amendment relates to attitudes to Covid vaccines, which I want to look at. To put it beyond any doubt, I support the use of vaccines, although not vaccine passports or mandated vaccines—I say that too—but I do not believe that those who are opposed to vaccines, whether they are tennis players, NHS anaesthetists, fearful pregnant women or even conspiratorial cranks, should be criminalised or discriminated against because of their views, and I am concerned that aspects of that would happen from this amendment.

This new amendment would expand the use of the proposed fast-track public space protection orders beyond activities outside schools to venues providing NHS vaccination services to the public. We all have in mind those scenes—they have already been described—of vaccination centres being invaded, with equipment trashed and abuse shouted and so on. As it happens, like everyone else, I condemn that activity. However, if, as the amendment notes, such activities involve harassment, intimidation or impeding members of the public accessing a service that they want to access or impeding the staff or volunteers providing that service, surely we have laws on the statute book to deal with this, and those laws should be applied.

My question really is: why do we need to use PSPOs, and why are they proposed for non-specified activities outside schools, which could obviously be used, for example, to prohibit anything from leafleting to collecting names on a petition for any cause? In relation to the schools part of the amendment, anti-vaccine issues are not mentioned. I confess that I have long been an opponent of PSPOs. Sadly, I feel, they are used as arbitrary powers, issued by councils acting as though they run fiefdoms. I have written about the issue regularly in council publications such as the Municipal Journal since 2014 when they were brought in.

PSPOs do not ban any particular activities, which is why they are so broadly interpreted, often depending on the pet hates of local councils. Their name is something of a misnomer because, rather than protecting the public, they are used mainly to eject the public from public space, effectively privatising public space. Indeed, they are regularly used as dispersal orders for, for example, groups of individuals “hanging around”, often young people, or for political vigils or leafleters. Often, they are dispersed by authorised private security guards with the power to issue on-the-spot fines—one has to consider who would police the PSPOs in this amendment.

No wonder the civil liberties group the Manifesto Club has warned that PSPOs fundamentally undermine rights of free association and free expression in the public square. Indeed, in 2017, the Home Office recognised the overuse and overreach of PSPO powers and produced amended statutory guidance—but to no discernible effect as they are now being issued at an increased, and rising, rate.

The fast-track PSPOs proposed in this amendment have conditions, but those conditions simply use the phraseology usually associated with the orders in terms of activities that various individuals consider have

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

or whoever is being discussed. The phrase “detrimental effect on the quality of life” has been critiqued by many opponents of PSPOs as very vague and elastic. It has led councils in recent years to use PSPOs to restrict everything from cycling, charity collecting, rough sleeping, walking dogs without leads, begging and busking. A couple of dozen councils have used that phrase and PSPOs to ban—two of my favourites—swearing and loitering. I do not know whether any noble Lords have ever dropped their kids off at the school gates, but loitering in groups—often involving a little swearing, I confess—is almost a compulsory activity for parents.

More seriously, as the Manifesto Club has regularly noted, the test of “detrimental effect” is an unprecedentedly low legal test for criminal intervention, but there is also no requirement to show any substantial evidence of such detrimental effect. There is no proper democratic oversight locally, with no requirement for PSPOs to be passed through internal scrutiny procedures within a council.

Normally there is a requirement for consultation, but, as has been explained, this amendment would dispense with that. The consultations are usually fairly procedural, and many PSPOs have been passed with as few as 10 respondents. Anyway, in this instance we would remove even the formal need for consultation. Therefore, the PSPO would be issued. It would be signed off, as we have been told, by three people—the police chief officer, the school leadership and the local authority leader—and the public would be consulted only after the order is issued, which is laughable and contemptuous.

Also, there is no workable system for appealing PSPOs locally beyond an appeal to the High Court. Finally, to note the wording of the amendment, these fast-track PSPOs can be issued for activities not just carried on but

“likely to be carried on”,

and that not just have had a detrimental effect but are “likely to have” a detrimental effect. These are weasel words, wholly open to speculation and a pre-crime-like interpretation.

I hope those noble Lords who, on Monday, will oppose the swathe of legislative proposals that threaten to close down protests and chill the rights of free assembly will also oppose this amendment. I find the views of hardcore anti-vax protesters distasteful, nihilistic and absolutely things I would argue against. I actually feel the same about Extinction Rebellion, but that misses the point. We need to be very careful about picking and choosing which protesters we support. If there is a problem of obstruction or any kind of unlawful activity outside schools or vaccine centres it should be dealt with, but I fear this amendment would give succour to the Government ahead of Monday’s battles. I will therefore oppose it.

[Lord Walney (CB)]

My Lords, surprisingly, my remarks will overlap substantially with the noble Baroness’s speech, although they come from a somewhat different perspective.

I thought that the opening speech from the noble Lord, Lord Coaker, was convincing and I look forward to hearing the Minister’s reply before I make my mind up on how to vote. But it left me wondering whether this approach ought not to be actively considered for extension around not simply schools and vaccination centres but seats of democracy such as Parliament and potentially local councils, where we have seen pretty disgraceful activities that are clearly designed to intimidate elected members—anti-vaccine activists have pursued a highly aggressive strategy. It is notable that that is off the table in the amendment.

There is no reason why this issue should necessarily be covered, but—this is my point of overlap with the noble Baroness—I raise it because I will be listening with interest to what Members of the Opposition and from all sides of the House say about the very controversial measures that are due to come on Monday. I share the concern that we have a real tendency as a House and a legislature to find ourselves in instinctive agreement with measures designed to avoid intimidation from groups whose causes we do not agree with; yet we find ourselves, often subconsciously, contemplating what can be equally intimidatory methods of protest deployed in the name of a cause whose broader case we do agree with. It is really important that we guard against doing that.

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[Lord Coaker (Lab)]

My Lords, I thank the Minister for her reply and for the courteous way in which she always tries to engage with the issues. I also thank all noble Lords who joined the debate. The noble Baroness, Lady Fox, can call me naive, but I was, though the amendment and the changed amendment, trying to address some of the concerns that she raised, particularly in trying to make it clear that it was not a blanket ban but was dealing with a very specific problem that has resulted in and around some schools—

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was reading my speech, but I acknowledge that the noble Lord said that in his opening. It is perhaps an unintended consequence, but can he see from the Minister’s response that it fuels arguments that they will be using on Monday? That was always my concern.

[Lord Coaker (Lab)]

That is a different point. I accept some of that. It was not what the Minister was saying, but I take the point. The noble Baroness raises legitimate points. I do not agree with her on many of them, which is fine. It is not a problem. It is the whole point of debate and discussion. The fundamental point is that the amendment seeks to do what the public space protection orders do not do. They are not a blanket ban on protests. They do not allow people to pick and choose in the way that some people, including the Minister, have highlighted.

I agree with the noble Lord, Lord Paddick, and do not believe that school leaders, local authority leaders, NHS vaccine providers and the chiefs of police for an area would pick and choose protests. I do not believe it. The school leaders in our country know and understand what causes alarm and distress to parents and pupils in their area and they would not abuse that power—nor, in 99.9% of cases, would local chiefs of police, NHS vaccine providers or local authority leaders of whatever political party. They are upstanding public servants who understand the responsibility that comes with their post and would not seek to use one of these orders inappropriately, just because there happened to be a protest outside a school.

I was a deputy head teacher. There were numerous protests at different times, about different things. We did not seek to ban or stop them. One occasion was when I reintroduced school uniform. There were people saying how ridiculous it was that Coaker was reintroducing school uniform, but I did not stop them doing that; nor do I believe that school leaders, police chiefs or others in an area would do that.

The amendment seeks, for particular circumstances that we have all seen on our televisions and read about in our newspapers, to give an immediate power for people to act reasonably, not to prevent any protests but to deal with a specific situation where alarm or distress is being caused. Whatever the current law says, it is not dealing with people in that situation. All we seek, in a reasonable way, is to give those people the power, in situations where there is consensus and agreement, to take immediate action to protect those going for a vaccine, or children, staff or parents going to school. It is perfectly reasonable to ask the law to provide that and, because of that, I ask to test the opinion of the House on my amendment.