Covert Human Intelligence Sources (Criminal Conduct) Bill
Baroness Hamwee ExcerptsTuesday 9th February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 168-I Marshalled list for Consideration of Commons reasons and amendment - (5 Feb 2021)
Baroness Chakrabarti (Lab) [V]
My Lords, at this stage in the journey of a Bill, I know your Lordships’ House will be mindful of its role as an unelected revising Chamber, but in the context of this Bill I humbly suggest that noble Lords be equally mindful of the serious constitutional, human rights and rule of law implications of the legislation, which was not a manifesto commitment of any party.
While mature democracies the world over have written constitutions and entrenched Bills of Rights, including ultimate strike-down powers with which their highest courts can protect fundamental rights and freedoms, that is not currently the case in the United Kingdom. Instead, the burden of protecting rights and freedoms must be more evenly shared between the judiciary and legislature. While your Lordships’ House lacks the other place’s elected legitimacy, it can in my view justify its existence at all only by having more of the independence of mind required to stand up for the most fundamental human rights of the vulnerable against state oppression, by accident or design, in the form of authorised criminality with total legal impunity.
Furthermore, the Joint Committee on Human Rights has an important role in our unusual constitutional scheme. It has been unequivocal in its critique of the ways this legislation violates the European Convention on Human Rights. Your Lordships took its clear advice, and that of my noble friend Lady Massey, in the form of the amendment banning the authorisation of certain grave crimes, in particular murder, rape and torture. The Government’s rebuttal is both circular and hollow. They argue that the grave offences in this amendment would provide a deadly checklist against which suspected undercover agents might be tested, but they also argue that the convention rights already provide these express prohibitions. This amendment might be either dangerous or superfluous, but it surely cannot be both. Which is it?
In the past, government lawyers have argued that the convention rights do not bind undercover agents of the state, and only recently, in the very litigation that provoked this Bill, they argued that agents are not precluded from committing murder. I am clear in my belief that the Human Rights Act binds undercover agents of the state, alongside the state itself. I would be grateful if the Minister could place her express agreement with that proposition on the record during today’s proceedings.
However, even that would not render this amendment superfluous, as the criminal law provides a clearer and more detailed set of instructions to all our citizens. This is essential to our nation’s compliance with convention rights. What would your Lordships’ House say if this kind of criminal immunity, without detailed limitation even for grave offences, were being passed in Russia, China or anywhere other than here? What would the Government say?
As a matter of conscience, and if only to record our grave concerns for the benefit of the litigators and senior jurists who will inevitably pick up the stitches that legislators have dropped, I will test the opinion of your Lordships’ House.
Baroness Hamwee (LD) [V]
My Lords, I will speak to Motions A, C and D and my noble friend Lord Paddick to Motions B and E. I thank the Minister and the Government for their engagement on the Bill, which raised far more issues than its slim size might have suggested.
The noble Lord, Lord Anderson, proposed the way forward on the first point, along with the noble and learned Lord, Lord Thomas. They and we on these Benches would have far preferred the new Section 29B to require criminal conduct authorisations to require “reasonable belief” on the part of the person granting them that they are necessary and proportionate and that the requisite arrangements are in place—in other words, for that to be placed in the Bill. Necessity and proportionality are dependent on a belief which, as the Bill is drawn, is subjective, which dilutes the safeguards. The House agreed with us.
The Government have been concerned that, because Section 29 of RIPA—the Regulation of Investigatory Powers Act—which deals with authorisation for the conduct and use of covert human sources, requires belief only, the different wording in new Section 29B would throw Section 29 into doubt. I understand the significance of consistency in legislation, but I do not entirely follow the argument in this case, since Section 32A, which was inserted into RIPA in 2012 and deals with authorisations, including those under Section 29—I hope noble Lords are following so far—provides for judicial authority if and only if the judicial authority is satisfied that there were reasonable grounds for believing and so on. Even if the argument is restricted to consistency, our view is that the term should be included in the Bill. The Commons disagreed with this on the basis of inconsistency, which would cast the doubt to which I have referred. The Solicitor-General assured them that
“the legal position is already that the belief must be reasonable, as a matter of public law.”—[Official Report, Commons, 27/1/21; col. 425.]
We have therefore come to the pragmatic solution that the statutory code of practice at paragraph 3.10 should not, as it says in the draft of the code, say that it is expected there should be reasonable belief. The noble and learned Lord, Lord Thomas, commented pithily that nothing could be less desirable. A mere expectation should not satisfy the Solicitor-General either. It is to be replaced by the words the Minister has quoted; I would be grateful if she could ensure that Hansard knows there are to be quotation marks around them, because they could have sounded descriptive rather than the text—the same changes are to be made at paragraph 6.4 of the code of practice. As the noble Lord, Lord Anderson, has commented, the police will rely on the code of practice—I hope I have not stolen his line.
On civil redress, during the passage of the Bill there have been different approaches to ensure that someone injured during the course of authorised conduct should be entitled to redress. We were repeatedly assured that no amendment was necessary; the Minister said the Bill did not “in practice” interfere with the criminal injuries compensation scheme, a term which I queried.
The cross-party amendment led on by the noble Lord, Lord Anderson, was agreed by the House by a very substantial majority. We now have a Commons reason that it would be
“inappropriate to create an exception to the effect of”
CCAs, which rather makes our point that an amendment is necessary, but I understand the sometimes slightly obscure process of coming to the formulation of reasons. We welcome this amendment, and we are pleased that the Government have found a form of words to cover the issue that they can live with and with which we are happy to live.
Domestic Abuse Bill
Baroness Hamwee ExcerptsMonday 1st February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-IV(Rev) Revised fourth marshalled list for Committee - (1 Feb 2021)
Baroness Hamwee
“(aa) the disclosure of any immigration information (see subsection (5A));”Member’s explanatory statement
This amendment, along with the other amendment in the name of Baroness Hamwee to Clause 17, would ensure that the bill did not authorise the disclosure of any immigration information.
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 55 and 56 in this group, and my name is also to Amendment 154 in the name of the noble Baroness, Lady Meacher.
From the moment the Data Protection Bill, as it was, arrived in this House, we opposed paragraph 4 of Schedule 2, which exempts data processed for purposes relating to “effective immigration control” from the protection provisions. Our reasons range from the ethical, for instance, solicitors being unable to obtain what the Home Office knows or thinks it knows about a client; to the humanitarian, for instance, deterring asylum seekers from seeking assistance to which they are entitled; to the practical, for instance, there are obvious implications for public health if people seek to stay under the radar.
The vulnerability of migrants subjected to domestic abuse is recognised by the commissioner-designate, and we have more amendments to come on different issues. It is recognised by Her Majesty’s Inspector of Constabulary and Fire & Rescue Services, who has recently said:
“Victims should have every confidence in approaching the police for protection. They should expect and receive protection at times when they are vulnerable and so desperately need the assistance of the agents of the state. Victims should never be in a position where they fear the actions of the police could unintentionally but severely intensify their vulnerability and thereby strengthen the hands of organised criminals and others whose motives and objectives are to inspire fear and do them harm.”
There is an obvious read-across from that. The vulnerability and fragility I mentioned are also recognised by the Government, but by way of a pilot.
As well as the stand-alone proposed new clause, which is Amendment 154, it seems to us necessary to address the issue in the specific clause regarding disclosure of information both by and to the commissioner. Patient information is dealt with; nothing requires or authorises its disclosure, and that is right. Nothing requires or authorises disclosure that would contravene data protection legislation. That does not preclude processing—the term used—of personal data for
“the investigation or detection of activities that would undermine the maintenance of effective immigration control.”
We very much support Amendment 154, whose authors have thought through many aspects of this. They urge that we do not put the commissioner in a position where information may not, out of fear, be confided in her, or where she is required to disclose immigration information. As so often happens when one returns to an amendment, I can see Amendments 55 and 56 might be more nuanced and detailed, but it is important, at this point, to get the matter on to the table. I beg to move Amendment 55.
Baroness Meacher (CB) [V]
My Lords, I will speak to Amendment 154 in my name. I thank the noble Baronesses, Lady Wilcox and Lady Hamwee, and the right reverend Prelate the Bishop of London for supporting it.
The key point is that victims of domestic abuse and their witnesses must be able to divulge personal data in the context of seeking or receiving support or assistance related to domestic abuse without the risk that such data may be used for immigration control purposes. Proposed new subsections (1) and (2) require the Secretary of State to make arrangements to honour this key principle and proposed new subsection (4) requires them to issue guidance to relevant officials and others affected by the new clause.
Migrant women with insecure immigration status are, in my view very understandably, reluctant to report domestic abuse to the statutory services. Would you, one might ask, particularly to the police? This reluctance is due to the current data-sharing agreements between statutory services, including the police and the Home Office, for immigration control purposes. This means that women affected cannot seek support or a safe place to go, with the most appalling consequences, as one can very easily imagine. Perpetrators are not being brought to justice.
In 2019, the Step Up Migrant Women campaign found that half of migrant women with insecure immigration status do not report abuse to the police for fear of detention and deportation. The use of insecure immigration status by perpetrators as a tool of coercive control has been highlighted for many years. CEDAW highlights this problem and calls on states to repeal restrictive immigration laws that leave migrant domestic workers vulnerable in this way. Imkaan’s vital statistics report shows that no less than 92% of migrant women have reported deportation threats from their perpetrator.
The Government’s draft statutory guidance framework for the Bill recognises the situation; indeed, it recognises the need for more support if these women are to seek help, but this support is not available in this Bill. The Government’s response has been to announce a pilot scheme to assess the needs of migrant women and provide those with no recourse to public funds with emergency accommodation. This is really concerning. As I have said, we know very well what the issues are and their consequences for migrant women. We know perfectly well what their needs are—the same as those of other women or men subject to domestic abuse—so I do not believe that we need this pilot. We need legislative protection for the women involved. If the Bill is passed without a solution to this problem, it could be years before the next appropriate piece of legislation. I really hope the Minister will agree that the proposed pilot is redundant and therefore not appropriate at this point.
The briefing sent to us by Step Up Migrant Women and others includes a number of heart-rending cases—I am very happy to pass them on to the Minister, but I have a feeling she already has them. She might want to make that clear.
In view of the serious crimes that go unpunished because of the fears of women with insecure migrant status, it is not surprising that the Equality and Human Rights Commission supports this and related amendments. The EHRC refers to a joint report of several policing bodies, including the HMICFRS, which found that victims of crime with insecure or uncertain immigration status are fearful that, if they report crimes to the police, their information will be shared with the Home Office. It concluded that the current system of information sharing between the police and the Home Office was causing significant harm to the public interest. I hope the Minister will respond to this particular concern in her response.
I put on record that, in 2019, the draft Bill committee made a clear recommendation to the Government to establish
“a firewall at the levels of policy and practice to separate reporting of crime and access to support services from immigration control”.
That is exactly what this amendment seeks to do.
Finally, as the Minister knows, without this amendment, and no doubt others, the measures in this Bill will not be compliant with Article 4(3) of the Istanbul convention, which states that
“provisions of this Convention by the Parties, in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as … national or social origin … migrant or refugee status”.
The Minister will know that, in December 2019, the Government stood on a manifesto pledging to support all victims of domestic abuse. Can we discuss how to deal with this before Report? I am tremendously aware that she is responsible for, I think, three Bills—overwhelming, I must say—and is clearly extremely busy, but I would very much welcome even 10 or 15 minutes to try to clarify where we might go on Report. I realise that these are complex issues but very much hope that the Minister will work with her colleagues to achieve government support for this amendment or something like it.
Baroness Hamwee (LD) [V]
My Lords, I do not think this is going to be the end of our discussion regarding victims whose immigration status is insecure, or they believe to be insecure. The noble Baroness, Lady Meacher, talked about a “tool of coercive control” and someone else—I am afraid I did not make a note who, but it might have been the noble Baroness, Lady Wilcox—talked about the power of an abuser. We should not be contributing to the power of the abuser, nor contributing a tool to the abuser.
The Minister has confirmed, and I am glad to hear it, that the Home Office’s approach is to treat an abused person as a victim first, but this needs to be followed through. Providing data to police or other authorities does not answer the issue to which noble Lords have been speaking. What if the victim knows that she or he is unlikely to be able to regularise their status? The Minister referred to the HMI report following the super-complaint. As stated in its press release, the investigation’s recommendations included:
“the Home Office should review the relevant legal framework and policy to establish sound and fair priorities regarding migrant victims of crime and migrant witnesses to crime, with insecure or uncertain immigration status”.
The Home Office is reviewing that. But this is the opportunity to deal with the matter in legislation and surely, given our data protection legislation, it needs primary legislation and not just guidance. I believe we will come back to this amendment on Report, but for the moment, I beg leave to withdraw it.
Baroness Hamwee
Member’s explanatory statement
This amendment would enable a notice to apply in respect of non-residential premises.
Baroness Hamwee (LD) [V]
My Lords, we have Amendment 57 in this group—or clutch—of amendments, pushing what I hope is an open door: the need for protection of abused or allegedly abused people not only at home. The Government have an amendment extending prohibition to other places, and another amendment relating to the workplace or educational establishment, and those are welcome. Other noble Lords will speak to their amendments using terminology about where the abuser or alleged abuser lives or works. Amendment 79 would allow for discretion when both parties worked in the same place.
Our Amendment 57 is similar to the Government’s amendment, but it applies to domestic abuse protection notices, whereas the Government’s amendment is about domestic abuse protection orders. I regard notices as preventative—not leading inevitably to an order. It is far better, to state the obvious, if one can head off abuse by a notice. Perhaps I am naive in hoping so, but I note that the Minister’s letter or the draft guidance recently circulated—I cannot remember which one—makes the same point. In any event, reasons for including the workplace and other premises as prohibited, apart from the home, can surely apply when a notice is given as well as subsequently. As a matter of drafting, I wondered why Clause 21(2) was necessary, since it seems to be covered by Clause 21(1), but that is not the issue and it certainly makes the point as to what is covered. I suspect that others are going to make very similar points, but I beg to move Amendment 57.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendments 58, 59, 60, 74, 76, 77 and 79 are tabled in my name and that of my noble friend Lord Hunt of Kings Heath. I am grateful to all noble Lords who have signed up to speak in support of them, in particular the noble Baronesses, Lady Ritchie of Downpatrick and Lady Newlove.
These workplace amendments were discussed in the other place and it is right that we make it absolutely clear in the Bill that domestic abuse protection orders and the notices that precede them can cover a victim’s workplace as well as their home. Presently, the Bill says only that a perpetrator can be prevented from coming within a certain distance of where a victim lives. I acknowledge that the noble Baroness, Lady Williams of Trafford, has tabled Amendment 75, which uses the term “specified premises”, but I would prefer the word “workplace” in the Bill, as that is stronger. The amendments I am proposing would ensure that those making domestic abuse protection notices and orders had the discretion to consider the workplace as well as the home.
The Government have said that they would expect a domestic abuse protection order to include restrictions on a perpetrator’s access to where the victim works if the court considered it necessary. However, expectation is not strong enough; the workplace should be referred to explicitly. Work is an important part of people’s lives; other than their home, it is the one place where they are present during fixed hours, normally in a fixed place. That makes a person vulnerable and victims need the added protection that my group of amendments would bring.
There is also the issue of the perpetrator seeking to drive a victim out of work to wreck their economic circumstances, as well as the other horrors they are seeking to inflict on a victim. Women have been murdered at work and the Government have a responsibility to ensure that victims are protected in all aspects of their lives. In 2005, Clare Bernal was killed by her ex-boyfriend—who worked on the same premises as she did—while she was at work. In 2010, Jane Clough was murdered by her ex-boyfriend as she walked into work. In 2014, Hollie Gazzard was murdered by her partner at her place of work. In 2016, four women were murdered in their workplaces by men. All these women would have benefited from stronger workplace protections.
The TUC undertook a survey and found that 47.3% of respondents said that their abusive partner turned up at their workplace and 43.6% said that they stalked them outside their workplace. Without the scope to extend domestic abuse protection orders to the workplace, victims will continue to be harassed, threatened and assaulted at work by abusive partners. Their job prospects and safety will continue to be threatened, and, tragically, as we have heard, in some cases they will be murdered.
Government Amendment 78 states that domestic abuse protection orders should avoid interfering with the perpetrator’s work, rather than, more specifically, their usual times of work. This should mean that in cases where a perpetrator and victim share a place of work, the perpetrator’s work patterns can be adapted to ensure the victim remains in work safely. It will be helpful if the noble Lord, Lord Parkinson of Whitley Bay, can confirm that that is the intention when he responds at the end of this debate, and that that will be made clear in any guidance issued by the Government.
This is a really important issue; victims need certainty and clarity to provide them with the protection they need. I hope that at the end of this debate we can get a positive statement that we need to look at this further and come back to it on Report.
Baroness Hamwee (LD) [V]
My Lords, I make it clear, if it was not already, that of course we welcome Amendment 75. I thought that naming victims who have been murdered at work or on their way to work makes the point very vividly. Rightly, it has been said that work can be a place of refuge when one’s home is not, but it is not the only place that should be specified, as noble Lords—particularly my noble friend Lord Paddick—have made very clear.
The noble Lord, Lord Rooker, referred to attendance at college, but a child’s school, when it is known that the other parent will be there at the start or end of a day, is also an issue. We have already talked during the passage of the Bill about a child being a witness and therefore also a victim, being drawn into the abuse. It strikes me, too, that in some circumstances it might well be helpful to a school to know that there is a prohibition on approaching the school premises.
If I may say so, the Minister’s explanation does not seem to answer the point. Clause 21 contains the words “may not contact the person”, but contact is different from coming within a given distance of a premises. Certainly the Government’s drafting for the order is better than the one that we put forward for notices, because it refers to premises of a specified description rather than requiring a particular address. That, as I say, is better, but having that in that part of the Bill must surely throw into doubt whether notices which are not just silent on the point but refer to premises in which the abused person lives can extend as far as my noble friend and I would wish, and, by implication, from what other noble Lords have said, as far as what they, too, regard as not just desirable but essential, given the detail into which the Bill goes. We welcome that but we would welcome more the bit in our amendment being added to it.
However, for the moment, I of course beg leave to withdraw the amendment.
Baroness Hamwee
Member’s explanatory statement
This amendment probes whether representations may be made about particular provisions of a notice.
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 61, 65, 66, 67 and 70 in this group and support Amendment 63, in the name of the noble Lord, Lord Ponsonby, requiring a risk assessment, which I would have thought should be an automatic item on a check list.
Clause 22 deals with matters to be considered before giving a notice. We support a police officer being required, under the clause, to consider any representations about the giving of the notice—to use the words in the Bill—by the person to whom it is to be given. Amendment 61 is to establish that representations must be considered regarding the provisions of the notice. If that is not so, an officer could simply ignore representations about specific provisions, for instance—harking back to the previous debate—“But I work in the same building” as him or her.
Amendments 65, 66 and 67 are amendments to Clause 24, which deals with breach of a notice. Regarding Amendment 65, is it appropriate that, if it is believed that there is a breach of a notice and a person is arrested, he or she is automatically held in custody, albeit for a very short period—possibly overnight, sometimes over a weekend? I have not discussed this with my noble friend Lord Paddick, but is there a risk of the use of custody as a punishment in itself—“Let’s put him in a cell to cool down”, that sort of thing? Should this not, however, be at the discretion of the officer?
Clause 24(7) allows the court to impose requirements when remanding on bail. Amendment 66 probes whether a domestic abuse protection notice continues in any event, with its requirements, or are these transferred to become conditions of bail if the court so decides?
Amendment 67 addresses “interference” with witnesses. I guess that this term has a history in legislation, but the amendment probes whether it means or covers direct or indirect contact with witnesses, for instance via a third party or social media. The same point would apply, in the last of our amendments, to Clause 38. I beg to move.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I will speak to Amendment 63 which, as the noble Baroness, Lady Hamwee, said, would ensure that a risk assessment is carried out. That would consider any risk to the victim which was likely to occur due to the perpetrator being given notice that a DAPO is likely to be given to the perpetrator.
I presume that the amendments in this group are probing amendments—mine certainly is—going into the detail of how the DAPOs and notices are to be administered. It is right that these are only probing amendments because each case is different and, while there should be comprehensive guidelines on the way that the police operate these procedures, they need to be sufficiently flexible for police officers to make reasoned judgments. There is a very real point about risk assessments: it could be that the victim is put at greater risk through the perpetrator receiving a notice. Counter to that, it could also help the victim if an order is put on without her consent—but that is a matter for a separate amendment in a later group.
I support all the probing amendments in this group, and I look forward to the Minister’s response.
Baroness Williams of Trafford (Con)
My Lords, these probing amendments relate to the operation of domestic abuse protection notices. Clause 22 sets out the matters which the police must consider before issuing a notice. Among other things, the police must consider any representations made by the person on whom the notice is to be served. Amendment 61 seeks to probe whether any such representations can extend to the provisions included in the notice.
I agree fully with the noble Lord, Lord Paddick, that the police should give full consideration to any representations on all parts of the notice, including any of the restrictions, as listed in Clause 21, that they consider imposing.
The draft statutory guidance, published in advance of the Committee stage, covers the considerations that the police must make before a notice is authorised. Although the current draft makes no specific reference to the consideration of representations in respect of individual provisions to be included in a notice, I would be happy to ensure that this point is addressed in the final form of the guidance.
Amendment 63, in the name of the noble Lord, Lord Ponsonby, seeks to ensure that a risk assessment is carried out before a notice is given by the police to an alleged perpetrator. I fully support the intention of this amendment, which is to ensure that full consideration is given to the risks to victims when deciding whether to issue a notice. I think that probably brings into relief the point made by the noble Lord, Lord Paddick. Sadly, police enforcement action against a domestic abuse perpetrator can lead to the perpetrator blaming the victim and seeking to retaliate. That is why it so important that these notices and orders do not require the victim’s consent and that victims can therefore distance themselves from police action against the perpetrator. It is why it is extremely important that the notice can be used to provide immediate protection to the victim. In the aftermath of an incident, police can use a notice to evict the perpetrator from the victim’s home and prohibit the perpetrator from contacting the victim for up to 48 hours. Last Wednesday, I inadvertently referred to 24 hours, for which I apologise. This provides the victim with breathing space to consider their options and for police and specialist services to support the victim with safety planning.
The notice is followed by an application for a DAPO which is designed to provide longer-term protection and can be tailored to respond to the level of risk to the victim. Therefore, if police involvement in the case and the giving of a notice to the perpetrator have led to an escalation of risk to the victim, the DAPO can include provisions to address this risk.
Robust risk assessment is central to the police response to domestic abuse. The College of Policing guidance on domestic abuse stipulates that a risk assessment must be carried out in all domestic abuse cases. The importance of risk assessment when using a DAPN or order is also set out in the draft statutory guidance for police which has been published ahead of Committee. This guidance makes it clear that it is essential that police use appropriate specialist domestic abuse risk assessment or screening tools in consultation with partner agencies to safeguard the victim and reduce the risk of further harm by the perpetrator. The guidance also includes information on safety planning action that police should undertake alongside the notice and order.
Amendments 65, 66 and 67 deal with breach of a notice. Clause 24 provides that, where there are reasonable grounds for believing that a person is in breach of a notice, they can be arrested without warrant, held in custody and brought before a magistrate’s court within 24 hours, or in time to attend the scheduled hearing of the application for a domestic abuse protection order—whichever is sooner.
Amendment 65 would make the process of holding the perpetrator in custody following arrest for breach of a DAPN an optional matter for the police. Although I understand noble Lords’ concerns regarding the blanket nature of this provision, this amendment could put a victim at increased risk of harm, coercion or retribution once an alleged perpetrator is released. The amendment could lead to further breaches occurring while the court hearing is pending and increase the need for protective measures for victims during that period.
Clause 24 also provides that if the court decides to remand the person on bail, it can attach any conditions that are necessary to prevent the person obstructing the course of justice, for example interfering with witnesses. These are standard provisions, which largely replicate the approach taken for remand following breaches of protective orders, such as non-molestation orders, occupation orders and anti-social behaviour injunctions.
Amendment 66 seeks to test whether a notice would continue in force following the court imposing bail conditions under Clause 24. I can advise the noble Lord that if a court were to remand a person on bail under Clause 24, the notice would continue in effect until the application for a domestic abuse protection order had been determined or withdrawn.
Amendments 67 and 70 seek to probe what constitutes interference with a witness. The term “interference”, which is used in other legislation relating to bail requirements, would capture direct or indirect contact with the witness and is intended to protect against someone influencing a witness’s evidence, or dissuading a witness from giving evidence, for example.
I hope that those two explanations satisfy noble Lords and that consequently the noble Baroness, Lady Hamwee, will be happy to withdraw the amendment.
Baroness Hamwee (LD) [V]
My Lords, these are indeed probing amendments. With our amendment to Clause 24, by using the term “may” rather than “must” about custody, we were proposing discretion, not precluding custody.
I am grateful to the Minister for her confirmation of various points and for her suggestion that the guidance is adjusted to cover the point made at the start of the debate. I beg leave to withdraw Amendment 61.
Baroness Hamwee
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Paddick to Clause 26(3).
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 64, 68 and 69. Clause 26 takes us fully into the area of protection orders. Of course, we have been referring to them this afternoon. We are particularly concerned about how the Bill is constructed to mean—as I read it—that there is an inevitability about a protection order following a protection notice. I appreciate that there are stand-alone protection orders: those are not the ones I am referring to here.
Under Clause 26(3), the police must apply for an order if they have given a notice. Our Amendment 68 would change that “must” to “may”. Clause 27(1), to which we have tabled Amendment 69, makes a similar point. The wording in the Bill is “required … to apply”. Amendment 64 anticipates those two amendments. Of course, we are not arguing that there should never be protection orders, but does the Bill have the right balance? It seems to me that the Minister’s descriptions, in response to the last group of amendments, of situations in which a protection order could be used, make that point very well. I find it quite depressing to see that notices would always be regarded as precursors to an order. Do notices not have their own place in prevention? In other words, this group of amendments asks: is the balance in the Bill right? I beg to move.
Baroness Butler-Sloss (CB) [V]
My Lords, I support Amendment 68. This is really a very short point; it is a question of flexibility. There may be circumstances where a protection order has been issued, but by the time it comes to a senior officer, circumstances have changed and it would be far better not to have it go forward. It would be wise, as the noble Baroness, Lady Hamwee, said—I realise that this is a probing amendment—to have the flexibility in the Bill so that it is not the case that, if an order is issued by someone of junior rank, it is automatically supported by someone more senior.
Baroness Hamwee (LD) [V]
My Lords, the amendment has been described as probing, which it was in the sense of my wanting to understand the thinking behind the phraseology in the Bill. A probing amendment can, in the course of a Bill’s various stages, become substantive. The Minister says that the strength of the process is to provide a breathing space. We are not suggesting, in these amendments, that that should not be possible; we are suggesting that it should be a matter of discretion. It occurs to me that not making it discretionary could itself be a deterrent to a notice being issued. The provisions for protection of the victim and for taking the burden away from the victim are not affected by these amendments. I heard what the Minister had to say and we are not going to progress the matter with this toing and froing, so I beg leave to withdraw Amendment 64.
Baroness Hamwee (LD) [V]
My Lords, we support the approach of the amendments. As has been said, they are to be taken seriously; of course, all amendments are, but these not only incorporate theory but reflect practice. The comments of the noble Lord, Lord Blunkett, about positive responses reminded me of how, in this situation as in many others unrelated to domestic abuse, there may be what I understand is called a “teachable moment”, when the person who can or should benefit from some sort of support or assistance is most receptive to it.
As we have made clear, and as I hope is implicit in all our amendments, we believe that the judicial process must be seen to be fair to both parties, otherwise confidence is rapidly lost. Giving a defendant an opportunity to make representations is part of that. I read that as part of the thrust of these amendments to what I think we all regard as very wide provisions. We are pleased that they have been brought forward and supported by such eminent signatories.
Lord Cormack (Con) [V]
My Lords, it is a privilege to take part briefly in a debate led by the noble Lords, Lord Ponsonby and Lord Anderson, and by my noble and learned friend Lord Mackay of Clashfern. I would sum up this debate by saying that we have heard some very wise words. The noble Lord, Lord Blunkett, said that these amendments were logical, rational and humane. He also entered the Covid caveat, and obviously we need a degree of flexibility over timing, bearing in mind the extraordinary overburdening of the justice system at the moment. I cannot help but refer your Lordships to the Times today, which lists the extremely large number of people being drafted in to be judges without any previous experience. We have to bear that in mind—but I endorse the spirit behind the amendments, and I will say no more.
Baroness Hamwee (LD) [V]
My Lords, we are happy again to be working alongside the noble Lord, Lord Ponsonby. We have Amendments 82 and 85 to 88 in this group.
Amendment 82 is about choreography. The noble Lord, Lord Anderson, has just referred to Clause 42, which provides for the variation of orders as well as their discharge, and Clause 36, as has been discussed, provides for their duration. This amendment would establish—I am seeking to avoid the word “probe”—whether the new order under Clause 36(2) could have different provisions from the original. I assume that it could and that there could be variations. Could there be overlapping orders? Again, I assume that is possible, though it would be confusing. Could there be a lacuna—a gap? Obviously an order could end and new abuse give rise to a new order, so could that be an unintended gap? That is unlikely, I guess, because the Bill seems to have been meticulously drafted, but I do want to be sure.
Amendment 85 is one of our most significant amendments. A protection notice may be given by a police officer who
“has reasonable grounds for believing that P has been abusive”
within the meaning of the Bill, and that the notice is necessary. An officer who
“has reasonable grounds for believing”—
the same terminology—that P is in breach of a notice may arrest him, and that leads on to a hearing before the magistrates. The court may make a civil order if it is satisfied, this time “on the balance of probabilities”—that is, the civil standard—that an order is necessary and appropriate.
It is what follows from that which is the subject of Amendment 85. Under Clause 37, P commits an offence if, without reasonable excuse, P fails to comply with the requirement of an order. The penalties are up to five years imprisonment, an unlimited fine or both. Our amendment would require the court to be satisfied “beyond reasonable doubt”—the criminal standard—that P has, without reasonable excuse, failed to comply with the requirement of an order. I am aware that the Stalking Protection Act 2019 is not dissimilar from this Bill in its approach; indeed, there is a good deal of other legislation in the same sort of area and I have no doubt that my noble friend Lord Paddick will refer to it, but that does not allay our concerns.
I hope it will be understood that we are looking at the issue neutrally. The Minister can advise me whether the term “audi alteram partem” is appropriate here. We do not take the side of the perpetrator, but we want to explore what the appropriate burden of proof is when one gets to an order and its breach—and indeed, I have to say, to explore what the standard of proof is, because the law should be both fair and clear. The legislation is silent; no doubt that means that we should understand it. I am sure there is a Latin tag for that as well.
I have assumed that there is no requirement for the criminal standard since nothing is spelled out. When my noble friend and I discussed this with the Minister, it was on the basis of a civil standard, which I think he was also working to, although it was a very rushed discussion. Whatever I am pointed to, I am very uneasy about the application of significant penalties on the basis of the civil standard—or is it the civil standard? The letter dated 26 January that noble Lords received from the noble Baroness, Lady Williams, said:
“Criminal sanctions will only be imposed following a conviction for the breach offence in the criminal court, which would need to be proved to the criminal standard in the usual way.”
That was in correspondence. I do not think it is referred to in the draft guidance that we have seen but, whether it is in correspondence or in guidance, I believe that the legislation should be completely clear.
Amendment 87 is in the same area. It would import “reasonably believes” into an application for a warrant for arrest for a breach under Clause 38, as for a breach of notice under Clause 24, rather than simply the term “considers”.
I turn to Amendment 86. Under Clause 37, for there to be an offence of breach the person must be aware of the existence of an order. The amendment would add that P must be aware of the requirements of the order if he is liable to be convicted of breaching a requirement—for instance, approaching particular premises—because he may be unaware of the requirements. The Minister may tell us that this is implied and that no court would convict if the defendant, or whatever I should be calling him in this situation, were not aware—in which case, of course, why not say so? Or would he say that this would call into question equivalent provisions elsewhere?
Finally, I turn to Amendment 88. Clause 42, to which we have referred, deals with the variation and discharge of orders. The court must hear from a person for whose protection the order was made. That was referred to earlier today as potentially being a burden on that person. We suggest that this should depend on whether the person wishes to be heard; that is the formula that applies to the police here. Are the Government not confident that the court would be able to decide for itself that it was not necessary? Are they not confident that the person may be able to determine this for herself or himself? We accept that a person may be vulnerable and require support or special measures, but it seems a little patronising to deal with the matter in this way. We would like to think that the person’s agency was respected. In fact, the letter from the noble Baroness, Lady Williams, which I have just mentioned, and the Bill recognise this by referring to contempt of court as “an alternative”. Can the Minister tell the Committee what the impact would be of proceeding on the basis of contempt of court? Is this a model used elsewhere, and what is the experience of it?
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I have had a request to speak after the Minister from the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) (V)
The Minister’s reply will obviously take some reading, which we will do. As regards the point on contempt, my question was about the experience of the model. I quoted a ministerial letter—not a letter from the noble Lord, Lord Wolfson—about the why, or at least partly why. In any event, I thank him for responding to that.
My question is about the criminal standard for breach of an order. The Minister said that it applied automatically; he then used the phrase, “in the usual way”. When he writes his letter, perhaps he could add a paragraph explaining how it is automatic and where that comes from, so that we can understand its application. He referred to other civil orders and he might want to refer to whether those are silent in legislation as to the standard of proof when breached or whether they deal with the standard explicitly.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to the noble Baroness, Lady Hamwee, for explaining the contempt of court point in more detail and for setting out the question of the standard of proof. I will be happy to include a paragraph on that in my letter as well.
Domestic Abuse Bill
Baroness Hamwee ExcerptsWednesday 27th January 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-III Third marshalled list for Committee - (27 Jan 2021)
Baroness Hamwee
“( ) assessing, monitoring, and publishing information about, the behaviours of people who carry out domestic abuse and matters which may contribute to such behaviours;”Member’s explanatory statement
This amendment would add provisions around the monitoring and assessing of perpetrator behaviours to the list of things the Commissioner may do in pursuance of the general duty.
Baroness Hamwee (LD) [V]
My Lords, my noble friend Lady Burt and I have Amendments 24, 25 and 26 in this group. Clause 7(2) sets out the powers that the domestic abuse commissioner can exercise in pursuit of her functions. I read that subsection as not being exhaustive, and I would be grateful if the Minister could confirm that when responding to the debate. I ask because, as I say, subsection (2) is about powers, not functions, and Clause 10 gives the commissioner the usual facilitative—if that is the word—incidental and conducive powers.
In any event, Amendment 24 would include powers relating to perpetrators, including words similar to those in Clause 7(2)(a), which relates to services to people affected by domestic abuse. I appreciate that there are other paragraphs—(c) is one of them—that are not limited to victims, but a specific reference to why people abuse seems appropriate. I think we can agree, since this is a point that has been made by a number of speakers and we will come back to it, that many noble Lords regard this as a crucial issue. I certainly do.
Amendment 26 would extend the power in Clause 7(2)(g). That power as drafted provides for the commissioner being able to co-operate or work jointly with public authorities, voluntary organisations and other persons. We would extend that to making recommendations to voluntary organisations and others. Under Clause 7(2)(b) the commissioner can make recommendations to a public authority. I think that all those to whom recommendations can be made should be included in the clause.
The Bill as drafted regards co-operation and joint working with public authorities as being likely to prompt recommendations—hence the Bill before us— but co-operation and joint working with voluntary organisations are not exactly the same. I would have said it was implicit that recommendations to them could follow, were it not for the distinction in the drafting of the Bill.
Amendment 25 is a consequential bit of drafting. I beg to move.
Lord Rooker (Lab) [V]
My Lords, in the interests of making progress, I have nothing further to add to what the noble Baroness has just said.
Baroness Hamwee (LD) [V]
My Lords, my noble friend Lady Burt called these small amendments. Like the noble Lord, Lord Rooker, I do not think that more words necessarily add to one’s case; I understood him to be supporting the point. Amendment 167 is about another duty. As I hoped I had made clear, I understand that Clause 7(2) is about powers while Clause 7(1) is about duties and functions. Amendment 167 is important but has a discrete function about creating a strategy. This amendment makes the point that work regarding perpetrators is wider than a strategy. We will come to Clause 16 on responses, to which reference has just been made, at a later point.
I still think that this is a slightly odd omission. I am glad to have confirmation that the list is not exhaustive. I cannot emulate the very senior lawyers involved in many of our debates, but any lawyers who are involved in this debate will recognise the term “sui generis”. It means that anything added to an existing list must be of the same type.
So it would not do any harm to mention perpetrators here, and it would make the point. I do not believe in legislation being used for messages, but something can sometimes be read into an omission. Of course, I will not pursue the matter now and I beg leave to withdraw Amendment 24.
Lord Cormack (Con) [V]
My Lords, I am delighted to follow the noble Lord, Lord Rosser. I agree very much with the line that he took. I anticipated that I would, and that is why I was glad to add my name to a couple of these amendments.
It is essential—and indeed it was really the underlying substance of my noble friend the Minister’s response to the last debate—that the commissioner is independent. To give the Home Secretary the power to censor a report is, certainly from my point of view, a step too far. Parliament should have a role here, and a central role.
Although there are slight divergences between the amendment to which I am giving my support and the amendment admirably introduced by the noble Baroness, Lady Burt, they are very similar, and she indicated that. Effectively, they are probing amendments. I have always believed that, for the most part, it is best if we do not have Divisions in Committee, so that we can hear what noble Lords have to say, the Minister can hear the points that are made and we can achieve, I hope, a degree of consensus by the time we come to Report.
I certainly could not support the supremacy, in the way that it stands at the moment, of the Home Secretary, and the ability, effectively, to call in—and, as I said at the beginning, to censor—a report. The commissioner must be someone in whom we repose a very high degree of trust, and who can report without fear or favour. I believe that the commissioner should report to Parliament, where we can guarantee that there will be proper scrutiny. Although I accept the important role of the Home Affairs Committee in the other place—as the noble Lord, Lord Rosser, said, that committee has itself recommended a report to Parliament—I have always been a great believer in Joint Committees of both Houses, especially when there is such a degree of expertise, to which I do not claim any, in your Lordships’ House. We have heard during the course of the debates today—I have listened to all of them—and the debates on Monday, that there really is a degree of expertise, and a depth of expertise, that the other Chamber can complement but not really surpass. So a Joint Committee might be a very good idea. Whatever final decision is made by your Lordships’ House and the other place on that, the centrality of Parliament’s role should be emphasised by underlining the autonomy and independence of the commissioner. She must not be seen to be a creature of government; her independence is vital.
I very much hope that, when my noble friend comes to reply to this debate, he will recognise the importance of Parliament’s role, and how crucial it is that the commissioner is someone in whom we can repose trust and someone who feels she can speak without fear or favour. I hope that, as a result of our discussions this afternoon, when we do come to Report, it will be possible for us to take a consensual and collective view that reinforces the importance, independence and integrity of the commissioner and, at the same time, the important role that Parliament should play.
Baroness Hamwee (LD) [V]
My Lords, I suspect that the Minister may tell us that Parliament will be quite adequately and properly involved, because the Secretary of State who sponsors—I think that is the term—the commissioner is accountable to Parliament.
Noble Lords who have spoken have all made the point about independence being absolutely crucial. We have already debated that in the context of the budget, particularly the other day, and the provision of staff, and of course it was central to the proposal that the commissioner’s title include the word “independent”. The Government have recognised that—not so far as to accept any amendments but they have recognised the point—and, I hope, the point about the commissioner being seen to be independent, which the noble Lord, Lord Rosser, has made today and I think I made on Monday, as I certainly intended to.
Our amendments propose reports going to both the Secretary of State and Parliament because, by nature and inclination, my noble friend and I want to find a way through this that might satisfy everybody. As my noble friend said, it is not unknown for Ministers not to respond promptly to draft reports and other material. In fact, I had Kevin Hyland’s experience in mind when we prepared these amendments. I am personally not wedded to 28 days. What is important is that there is a fairly tight maximum time limit.
On Amendment 35, I have thought about the situation a little more since we tabled the amendments. The commissioner is not actually required to give advice or assistance: “may” is the term in both Clause 9(1) and Clause 9(2), although there is a “must” about publishing advice to any person other than the Secretary of State—that is in Clause 9(4). I am a little worried about whether the prospect of advice being required to be published might constrain people other than the Secretary of State from seeking advice. So, as well as wondering why non-Secretaries of State are not on the same footing as the Secretary of State for this purpose, I am actually a bit concerned about the provision.
Is Clause 9(2) itself actually necessary—that is, the subsection which says that the commissioner may advise or assist someone else—especially as we are told that the list of powers at Clause 7(2) is not an exhaustive list? Can someone seek advice or assistance without it being published? There must be many situations in which that would be appropriate. Also, can the commissioner omit matters listed in Clause 9(6) of his or her own volition? Surely, they can. We have all been talking on the basis that the commissioner can and would do so, but it is a matter of the Secretary of State’s direction, which I find a little curious, in addition to the points made by other noble Lords. I hope the Minister can answer these questions, which, perhaps, go behind some of the words in the Bill, as well as the overarching issues raised by these amendments.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to follow the noble Baroness, Lady Hamwee, I support a number of the comments she made and I look forward to the answers. I particularly support the amendments in the group in the name of the noble Baroness, Lady Burt, and the noble Lord, Lord Rosser, signed by my noble friend Lord Cormack and others. At another time and in another place, I chaired a Select Committee—on a completely different subject from that before us today—and the annual reports from organisations such as, in this case, the domestic abuse commissioner, are extremely important to Back-Bench Members of Parliament, giving them the opportunity to debate and scrutinise the work undertaken by these bodies.
I believe that these amendments are extremely important. To be honest, I do not know what the situation is if a report is simply made to the Secretary of State, rather than being made more freely available. If a report is made to Parliament, then Parliament and Select Committees have the right to debate it, either in Select Committee or on the Floor of the House, depending on the importance of the contents and of that particular body. I also underline that in other Bills that have come before the House in recent times—looking forward to Committee on the Environment Bill, I am sure this will be commented on again in respect of the Office for Environmental Protection—it is essential that a body such as the domestic abuse commissioner should operate independently of the Secretary of State and the department.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I have received a request to speak after the Minister from the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, I thought the noble Lord would not be able to respond to my question about whether advice to someone other than the Secretary of State has to be published. Just after I pressed send, he came to that point, but may I pursue it a little?
From what he said, I think that it would be open to the commissioner to redact part of the advice that is published—it certainly should be. However, there is a power of direction for the Secretary of State. As other noble Lords have alluded to, there are bits of the relationship which we are seeking to fill in, if you like, through these debates. Do the Government not take the point that there may be occasions when it would not be appropriate to publish advice at all—not just about an individual but perhaps a piece of work which it would not be appropriate to publish at that moment? We may need to look at what is meant by “advice” and “assistance”—I do not know where the demarcation line is between the two. I do not expect the Minister to get into the semantics now, but I may look at the semantics after today.
Baroness Hamwee
Member’s explanatory statement
This amendment would remove the upper limit for members of the Commissioner’s advisory board.
Baroness Hamwee (LD) [V]
My Lords, this group of Amendments 37, 38, 39, 40 and 43 relates to Clause 12 on the advisory board. I will not introduce Amendment 39, to which my noble friends Lord Paddick and Lady Featherstone will speak, but I agree with what I expect them to say.
At Second Reading, we heard various bids for inclusion in the advisory board, and we heard one, or possibly more, in previous groups in Committee. This prompted me to think about the functions of the advisory board and how it might operate, hence our Amendment 38. Should the members act as representatives of different sectors? Is the term “represent” quite appropriately descriptive of what they will do? Why will they be appointed? This will probably be to give advice across the issues, through the particular lens of their own experience, so that the commissioner has three-dimensional views, if you like.
Of course, they will put forward points of view from within their own sectors, but they will not only make the case for them; I am sure advocacy for resources for sectors will be very likely. As such, I thought I would try the phrase “expertise and experience”—I subsequently found that the noble Baroness, Lady Finlay, had also picked the term “expertise”. I have applied this to the first of the categories in Clause 12(4), on “victims of domestic abuse”. I would not preclude advocacy, but, rather than special pleading, the commissioner will want advice across the board, built on all of the advisers’ various expertise.
We also have an amendment relating to Clause 12(4)(e), which requires there to be a person
“with functions relating to policing or criminal justice”.
I do not know whether I should read into this that the police are not part of the criminal justice system but, to me, the point is that, if they are regarded as separate, then having experience and expertise in both is necessary.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Hamwee, to conclude the debate on her amendment.
Baroness Hamwee (LD) [V]
My Lords, I am glad that three of my noble friends spoke about male victims. I do not think we can remind ourselves too often that, whatever the language in the Bill—I am well aware of the lengths to which the Government have gone to express the Bill and supporting documents in gender-neutral language—the Bill is also about awareness. We have a task to make ourselves and others aware that it is not a gendered issue.
The noble Lord, Lord Hunt, made the point about governance far more clearly than I did. I was indeed thinking about an integrated approach.
The Minister started on a list of those who might be members of the advisory board. I do not know whether she stopped herself because she realised she was making my point for me—that was certainly how I heard it—but she also said we should leave it to the commissioner to find the right individuals to represent these various categories. We should leave it to the commissioner and trust the commissioner to create an effective, efficient advisory board and to achieve the balance to which the Minister referred. I had thought there might be something more about this in the draft framework document, but essentially it repeats what is in the Bill.
I do not think the Minister replied to the point about the term “represent”. Indeed, she used that term herself. I remain really concerned about that, because I do not think that properly describes what the advisory board—as a body made up of a group of individuals, but we should look at it as a body—is really there to achieve.
I rather feel that the Government’s answer to all the amendments in the group is “not invented here, so sorry”. It sounded more like “not invented here” than “not necessary”. However, we will consider whether we pursue some of these points at the next stage, and I hope we do. I beg leave to withdraw the amendment.
Baroness Burt of Solihull (LD)
My Lords, this is a simple, straightforward amendment which prevents the Secretary of State sitting on the strategic plan consultation. It has been known for a busy Secretary of State to treat a consultation as less urgent than many other items in her in tray. I am sure it would never be the case with this Secretary of State, but the provision in the amendment serves to focus the mind of the officeholder—whoever they are—and ensure that this hugely important plan is given the priority it deserves and is not unduly delayed.
Baroness Hamwee (LD) [V]
My Lords, in the debate on the last group of amendments, I referred to the draft framework document, which, with regard to the advisory board, says more or less what is in the Bill. The draft document does not in fact cover a great deal beyond what is in the Bill, although it uses more informal language. But one thing it does say is this. At paragraph 5.19, it refers to the strategic plan and the commissioner’s duty to consult the Home Secretary, among others, stating that:
“Although not prescribed by the Act, the Home Office will provide a response to the Commissioner’s consultation on the strategic plan within 28 calendar days of receipt.”
It is not prescribed by the Act, but we think that it could be. I wonder why this is one of the very few items in the draft framework document that is not in the Bill. Are the Government concerned that, over time, this might slip? I hope not.
Lord Parkinson of Whitley Bay (Con)
My Lords, we agree in principle with the spirit of this amendment. As the noble Baroness, Lady Hamwee, has indicated, the draft framework document already requires the Home Secretary to respond within 28 days. We agree that such a response needs to be provided promptly, so that the commissioner can finalise and publish her strategic plan. Where we disagree with the noble Baronesses, Lady Hamwee and Lady Burt of Solihull, is on whether this level of detail is appropriate to put on the face of the Bill.
We submit that it is more properly a matter for the framework document, which must be agreed with the commissioner. The noble Baroness, Lady Hamwee, quoted from paragraph 5.19 of that document, which says that the Home Office will provide a response within 28 calendar days of receipt.
I do not intend to be flippant, but sometimes things take longer than expected. In debating this amendment, we have only now reached the target that we set for the first day of Committee. If things are to be done thoroughly, as they always and rightly are in your Lordships’ House, they sometimes take longer than anticipated. I am happy to give an assurance from the Dispatch Box to the same effect as that set out in paragraph 5.19 of the framework document: the Home Office will provide a response within 28 calendar days of receipt. I hope that, with that assurance, the noble Baroness will be willing to withdraw her amendment.
Lord Russell of Liverpool (CB)
My Lords, I rise to speak briefly in support of Amendments 51 and 54, to which I was happy to add my name. I am grateful to the noble Baronesses, Lady Burt and Lady Bertin, for introducing the amendment so well.
We heard in the group starting with Amendment 23 about the critical role of better information. I know it is a theme the Minister is acutely aware of, not least because she has departmental responsibility for it in the Home Office. To restate the obvious, and it really cannot be restated often enough, more joined-up, accurate, timely and informative data would enable Nicole Jacobs, on our behalf, to understand the past and the present better, a point made very well just now by the right reverend Prelate.
This point was also made very forcefully earlier by the noble Lord, Lord Hunt of Kings Heath, on Amendment 23: the need not only to recognise but to try to predict future violent and abusive behaviour better, in order to prevent or mitigate injuries to abused partners and their children. What is the point of having a domestic abuse commissioner if we do not equip her with the right powers and authority, moral and statutory, to do her job as well as possible? As others have mentioned, these amendments have the active support of Nicole Jacobs and, if accepted, they will enable her, again on behalf of all of us, to understand the full gravity and texture of domestic abuse more clearly than we do today. We have to be more proactive and joined up. As was mentioned earlier, domestic homicide reviews are an improvement, but they are still not working as they should.
Amendment 54 will provide the commissioner and the Home Office with ready and immediate access to this vital data. Amendment 51 adds to the collation of vital data by drawing into the commissioner’s information hub all the investigations into domestic homicides by the five bodies named.
In summary, the commissioner has asked us not just on her behalf but on behalf of victims and their families to articulate what is behind her request to be given the additional access to key information that she judges she needs. This will enable her to do her job even more effectively and to do so right from the start. I hope I am right in anticipating a positive and supportive response to the commissioner and the Committee from the Minister.
Baroness Hamwee (LD) [V]
My Lords, Amendment 189 is of a rather different type. We are proposing that to remove an authority added by regulations to the list through Clause 15(4)(a), the regulations achieving that removal should be the subject of an affirmative resolution. The Minister may say that as the Secretary of State has imposed—I am not sure whether that is the best term—an added authority under Clause 15(4)(a), it is hers to dispose of, but unless there has been an aberration, the public authority so added will be of significance. The Minister will of course know that it is not unusual for my noble friend Lord Paddick and me to take a look at every regulation-making power we find in legislation.
With regard to the other two amendments in this group, listening to and reading the names of the victims of domestic homicide is very moving. They are individuals who together make up significant data. We are particularly aware of this in the context of those who have died during the pandemic. My noble friend Lady Burt has already given the support of these Benches to Amendments 51 and 54. As the noble Lord, Lord Russell, has just mentioned, these are matters that the domestic abuse commissioner designate is calling for. Her shadow period in post has led her to call for a limited number of significant amendments to the Bill. It is not an impossibly large number, and it is not an impossible ask, so I think we should have a very good reason to reject what she has identified as necessary.
In a Bill which is going through your Lordships’ House concurrently, and on many previous occasions, the Minister, and other Ministers, have argued for public servants to have all the necessary tools in the toolkit. We have not always agreed on what those necessary tools are but, on this occasion, we certainly support these amendments.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendments 51 and 54 and even the little tweak of Amendment 189, because these powers will clearly enhance the office of the domestic abuse commissioner, making sure that relevant public bodies actually co-operate and support the work. This reflects the sort of broad approach that should be taken by the whole public sector in trying to stamp out domestic abuse. The Independent Office for Police Conduct will be very important in identifying and dealing with police officers who are domestic abusers themselves. Those people have absolutely no place in policing, and I will revisit this with Amendment 53.
Amendment 54 ensures that the domestic abuse commissioner is informed of deaths where domestic abuse is a factor. This is vital information for the commissioner, and it is hard to see how she will be able to function if she does not have it. These amendments are crucial.
Domestic Abuse Bill
Baroness Hamwee ExcerptsMonday 25th January 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-II(Rev) Revised second marshalled list for Committee - (25 Jan 2021)
Baroness Hamwee
“(a) B is aged 16 or over and is personally connected to A,”Member’s explanatory statement
This amendment would expand the definition in the bill to include a relationship where one person was under 16 and the other was over 16.
Baroness Hamwee (LD) [V]
My Lords, I am very conscious of being the first speaker at this stage of a Bill which has been so widely welcomed, and which so many people, outside and inside the House, are ambitious to amend—or maybe I should say expand.
There are some niggles, but I do not think that any noble Lord is planning to oppose any clause standing part of the Bill. That is very unusual. Often, giving notice of an intention to oppose a clause standing part is not to signal opposition but to probe or interrogate the Government on what lies behind the printed words or how the Government intend them to be fulfilled. The Bill has been a long time in the making, so the Government have had a lot of time to refine it.
This is not the moment for a Second Reading speech—Committee is the stage at which we are workmanlike—but I want to make one general point, which is to thank all the organisations and individuals who have contacted us and informed our thinking. Their hard work and determination are impressive. We will be anxious to do justice to them, but I fear that it will not be possible to credit them by name. Nevertheless, I hope they appreciate that we appreciate that this is a collaborative effort, in which they are partners.
My noble friends Lady Burt and Lord Paddick are on the Front Bench for this Bill but, by chance, I have the privilege of moving the first amendment. I should declare what I regard as interests, because they certainly affect how I think about the issues. For many years, although some time ago, I was a board member and then chair of Refuge. I am currently a member of the board of Safer London, whose work with children and young people can mean addressing family and other personal connections, including working with young people to help them understand what good relationships are.
So, to Amendment 1. There has been debate about the abuse of children but this amendment is not about that. The focus of the Bill is the abuse of partners, and we now have Clause 3, which concerns the impact on children who witness that abuse.
I have from time to time heard reports of abuse by children of adult relations. One would hope that ways outside legislation would be used to deal with such behaviours, but I would be grateful if the Minister could explain to the Committee how the Government regard, for instance, violence or threats of violence by a 13 year-old towards his mother or grandmother. A teenager living in the same household as a grandparent could be in a position to extract money or valuable items from the grandparent. Noble Lords can imagine various reasons: how this might be prompted by a need for drugs, or to get money for a gang, as gang members often regard their gang as their family. We want to ensure that the Bill is comprehensive, and the intention behind the amendment is to ask why it applies only when both individuals are 16 or over.
I realise that it is necessary, in proposing a change to the scope of a Bill, in a non-technical sense, that one should ask oneself: what follows? Should it be a protection order or qualifying for statutory support? Nothing is achieved by extending the categories of people to whom the Bill applies simply as an expression of concern without also considering what is achieved in practice, although it may help us all to understand how other, existing, legislation covers their situations. This is a probing amendment. I beg to move.
Baroness Butler-Sloss (CB) [V]
My Lords, I refer to my interests as listed in the register. I listened with great interest to the noble Baroness’s explanation of this first amendment. I bring to the House a different situation that in my view is covered by the amendment, but which the noble Baroness has not put forward. Like many of the groups I am involved with, I am very opposed to marriage under the age of 18. There is no doubt that a number of teenage marriages involve domestic abuse. It is important to recognise that, in such marriages, those under 18 are as much at risk as anyone else. Later, I will deal through amendments of my own with a situation I am particularly concerned about: young people both under and over 18 who are forced by coercive control or physical abuse into an unwanted marriage that they—she, generally, but sometimes he—do not want to enter. That is why I want to raise this issue as perhaps another probing part of the amendment: to recognise this group of young people aged under 18.
Baroness Hamwee (LD) [V]
My Lords, of course I will withdraw my amendment at this point. However, before I beg leave to do so I want to say that, as my noble friend Lord Paddick has pointed out, what goes on in society changes from time to time. At the moment it is county lines. We need safeguarding responses—I would not dispute that for a moment—but we need to look at what is available for safeguarding and what helps with prevention. I mentioned orders. I will also mention domestic violence protection notices and particularly—depending on what happens as we consider later amendments to the Bill—statutory community support. I would have thought that that might have a role, but would not be available if we confined the definition to two people over 16. I look on those measures as part of a raft of preventive measures. I will continue to think about this as we proceed through the Bill, as obviously this is not divorced from the rest of the Bill. I am not going to attempt to answer the noble and learned Baroness, who brings a different concern to the same wording. For the moment, I beg leave—
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
Before the noble Baroness withdraws her amendment, I had a very late request from the noble Lord, Lord Paddick, to have a word after the Minister. Can we please hear from the noble Lord, Lord Paddick?
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I now apologise to the noble Baroness, Lady Hamwee. Would you like to complete your speech please? Do you wish to withdraw your amendment?
Baroness Hamwee (LD) [V]
Before I do, I would like to say that I asked about this problem; I do not think my noble friend knows that. It is nobody’s fault in the Chamber, but we might write some sort of pause into the procedure. I have asked if the Procedure and Privileges Committee can consider that, because I was caught out last week. I now beg leave to withdraw the amendment.
Baroness Altmann (Con) [V]
My Lords, I congratulate the noble and learned Baroness, Lady Butler-Sloss, on the way she introduced her group of amendments. I fully support Amendments 6, 8, 9, 10 and 14, relating to forced marriages and people in domestic service. Her highlighting of the gap in Clause 3 relating to people who are personally connected in this way is a really important contribution to this debate and, potentially, to the Bill.
I have added my name to Amendments 7 and 12, so excellently explained by the noble Baroness, Lady Wilcox. I would also like to support the noble Baroness, Lady Grey-Thompson, in her Amendment 11. Each of these amendments relates to including the providers of care in the Bill, be it for disabled people or for elderly people who need care.
The definition of domestic abuse could be widened to consider abuse perpetrated by those who are in trusted positions providing either paid or unpaid care. We have heard terrible examples of people being abused by those in positions of trust, whether friends or neighbours, though it can also be family members, and it can also relate to financial abuse. I ask the Minister to ensure that the particular position of disabled people and the elderly who rely on carers is fully taken into account in the Bill.
I wonder whether independent domestic violence advocates might be funded to reach out to more patients in hospitals or in other settings who are over a certain age or disabled in some way. I also wonder whether there could be better training for healthcare practitioners to be able to identify domestic abuse when they are involved with, assessing or looking after older or disabled people in hospital or other settings who might be suffering silently from various forms of abuse.
I welcome the expansion of the definition of domestic abuse in the Bill and the specific inclusion of statutory inquiries into suspected financial abuse, as set out in the Care Act 2014. I hope that my noble friend will be able to reassure us about the intention to include these groups and I look forward to her reply. Once again, I congratulate those who have laid these amendments, which are important for us to discuss in Committee.
Baroness Hamwee (LD) [V]
My Lords, Amendment 13, in my name and that of my noble friend Lord Paddick, does not seek to broaden or narrow the amendment to which the noble Baroness, Lady Wilcox, has spoken, but rather to understand what is meant by “live independently” in the context of carers. The term “independent living” is a familiar one, but I do not know whether that is quite what is intended here. Needing support to live in one’s home, which I regard as hugely important, does not to me feel like independence. The relationship is very much about dependence, or trust, which was the term used by the noble Baroness, Lady Grey-Thompson. That is the extent of the reason for Amendment 13, but I am glad to be able to comment on some of the other amendments in this group.
The noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Randall, have identified a number of significant situations. The noble and learned Baroness described situations, in the plural, as she carefully explained, relating to forced marriage, which came over vividly. She has an amendment about guardians, a term that has expanded beyond its original technical meaning. She and I have often been involved in discussions about the needs of children who have been trafficked where guardianship has featured. I would never challenge the noble and learned Baroness and I have not done my homework, so I hope that she will forgive me, but I wonder whether a guardian has parental responsibility and, if so, whether that would cover the situation.
The noble and learned Baroness and I have also been involved in many debates about domestic servitude and I would be interested to know what is sought to be achieved by, and the consequences of, Amendment 9 beyond identifying behaviour already criminalised under the Modern Slavery Act. Is it something about protection or prevention?
In Amendment 14, the noble and learned Baroness points out a lifestyle that may not be covered. Its significance lies in Clause 3, which relates to children as what I wrote down as “collateral damage”, a term that I am slightly embarrassed to use, but noble Lords will understand what I mean. I had at one point wondered about lodgers who are in the same household, but I decided not to pursue that. I was going to ask the noble and learned Baroness what she envisaged as a consequence of that amendment, but I think that she has explained it. It is certainly partly the need for greater awareness on the part of the authorities to the situation of those in domestic servitude to whom she has referred.
Lord Randall of Uxbridge (Con) [V]
My Lords, Amendment 10 is in my name and is supported by the noble and learned Baroness, Lady Butler-Sloss. I support the amendments in her name—Amendments 8, 9 and 14. We should explore the definition of “personally connected”. I am not sure that the Bill as we see it includes all those people who could be included as personally connected.
Amendment 9 is about domestic servitude and I should declare my interest as a deputy chairman of the Human Trafficking Foundation, along with the noble and learned Baroness—domestic servitude has been a long-standing issue for us. I recognise that there are other possible categories of people who are in the same household. My understanding of the word “domestic” is that it means “in a home”, so “domestic abuse” should cover those people who are ordinarily staying in that household, which is why I have put down Amendment 10.
The Minister may well say that some of these instances are already covered by other Acts and I would not think that that was not necessarily the case, particularly in connection with the other amendments dealing with disabled people and carers. However, I remind my noble friend that, when we were working on the early stages of Modern Slavery Bill, one of the reasons for the Bill was to put all the legislation together so that it was less confusing not only for the courts but for the police and other authorities. I ask that we have a serious look, before Report, at how “personally connected” could be better defined.
I would also like to speak to Amendment 8 on forced marriage, which is again in the name of the noble and learned Baroness, Lady Butler-Sloss, and which she explained admirably, as always. I watched a compelling drama on television a few months ago, which was based on fact, about honour killing. Watching that shocked me, and we have to take every opportunity to try and address something like that—though that ultimately ended in murder and was dealt with by the appropriate legislation—which in many ways starts with abuse.
The Deputy Chairman of Committees (Lord Bates) (Con)
I have received one request to speak after the Minister. I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, the Minister has given quite a long reply, which will bear reading. However, it sounded somewhat circular: the various groups referred to in the amendments are not within the definition. But that, of course, is why this long list of amendments was tabled. I felt that the noble Lord, Lord Blunkett, really nailed my concerns. I am not speaking from the point of view of someone who feels that their concerns have not been picked up, but I was unclear whether the Minister was saying that there were adequate remedies and protections for every one of the people covered by the amendments. I certainly did not feel that the Government accepted that being in the same household is very close to a personal connection—it is, after all, a domestic situation. I wonder whether the Minister can help further.
Lord Parkinson of Whitley Bay (Con)
The noble Baroness is right: it was a lengthy response, which I hope set out why the wide range of examples given by noble Lords are, we believe, already covered either in the drafting of the Bill or in existing statutes. She is also right to say that the debate will repay reading—for me, as well as for others—to make sure that we have indeed covered all the examples.
In brief, the dilemma, as encapsulated by the noble Lord, Lord Blunkett, is to make sure that, in seeking to cover the wide variety of relationships, we are not diluting the unique character of domestic abuse. A person coming into somebody’s household as a friend or as a temporary flatmate who may be there only a short time is in a different category from some of those other examples. I am sure that we shall return to this point throughout the scrutiny of the Bill.
Baroness Hamwee
Member’s explanatory statement
This amendment would ensure the Domestic Abuse Commissioner is appointed full-time.
Baroness Hamwee (LD) [V]
My Lords, with this group, which comprises Amendments 16 to 19, we turn to the role of the domestic abuse commissioner. I do not want to delay the commissioner-designate being able to drop that suffix—it is a bit tempting to refer to her as “elect”, but that is just what she cannot be.
At Second Reading I referred to the commissioner-designate’s energy and how much she and her team have managed to do without statutory backing. I was surprised to discover that the appointment is on a four days a week basis. That is the formal appointment, at any rate; it must be a challenge to keep to four days, if she does. I have not discussed this with Nicole Jacobs, and I must make it clear that this comes out of my head and is not something she has suggested. I suspect that she is far too professional to have done so in any event. I also suspect that she does not watch the clock. She would say that she knew what she was applying for; I would say that not making it a full-time appointment is mean-minded and gives a message about whether the Government regard the commissioner’s role and work to be as serious as it is. That is certainly not what they want to project.
The noble Earl, Lord Lytton, who has had to withdraw from the debate, emailed me when he did so to explain that something had come up that would need his attention. He had previously emailed me to say that he very much agreed with this amendment.
Turning to Amendment 17, the Independent Anti-Slavery Commissioner has the word “independent” in her title and so did her predecessor, because that is in the Modern Slavery Act 2015. Personnel change and so can attitudes to the role on the part of the Home Secretary. The postholder can obviously change; people move on.
There has not been the same concern as during the passage of the Modern Slavery Act to designate —if I can use that term without it being confusing when used as a verb—the commissioner as independent through the means of the title. Whether that is because the various commissioners over the last few years are all spirited and clearly their own persons, I do not know, but titles are significant. Third parties would be justified in questioning the independence of a postholder so dependent on the Secretary of State as Clause 6 makes her.
Amendments 18 and 19, in my name and that of my noble friend, together amount to the right for the commissioner to appoint her or his own staff. Again, I point to the Modern Slavery Act, under which Section 40 provides that the commissioner may appoint staff—no more, no less. The commissioner will be restricted as to the numbers of staff and their salary levels, because their appointments will all have to be within a budget set by the Secretary of State. However thorough and sensitive the consultation may be when the Secretary of State appoints staff, we believe that the commissioner should be in charge and should be seen to be in charge.
Lord Rooker (Lab) [V]
My Lords, I am unclear as to the precise status of the commissioner. I have one key question: is the commissioner the accounting officer for the commission? If I knew the answer, I could either shut up or not proceed with any of the other points I want to make. I am not going to get an answer, but I invite the Minister to give an answer if possible, because it indicates certain things.
Amendment 16 would, it seems, prevent the commissioner taking on any other role which might be relevant or helpful to the role of commissioner. I am not clear as to whether full-time means excluding any other roles.
The whole thrust of Clauses 4, 5 and 6 is a worry because it appears that the Secretary of State wants to pull all the levers. This becomes really clear in Clause 8. I am therefore very sympathetic to the thrust of these amendments and the Minister will have to make a convincing case to avoid my supporting them at another stage. I also note that Refuge is very supportive of this group. Can we have a clear answer on whether the commissioner is the accounting officer for the commission?
Lord Parkinson of Whitley Bay (Con)
I thank the noble Baroness, Lady Hamwee, for setting out her reasons for tabling these amendments and all noble Lords who took part in the debate on them.
Amendment 16 would mandate that the commissioner role be a full-time appointment. We do not think it is necessary to add that to the Bill. As has been noted in the debate, many statutory officers operate on a part-time basis, in line with similar commissioners, for instance, the anti-slavery commissioner and the lead commissioner for countering extremism—two other subjects which we take very seriously.
On advice from executive search specialists, we advertised for a part-time designate commissioner so we could attract as wide a range of suitably qualified and high-profile candidates as possible. As a result of that exercise, we found one such person, Nicole Jacobs, who was appointed initially on the basis of three days a week. We said at the time of her appointment that that time commitment would be reviewed after six months, and following that review, it was increased to four days a week with her full agreement. To answer the noble Lord, Lord Rosser, we will look again at that time commitment before commencing Part 2 of the Bill and keep that matter under review. But we would be denying ourselves the opportunity to appoint a highly suitable and qualified candidate in future if the legislation insisted this had to be a full-time appointment.
If I may say so, there is a slight tension between the amendments brought forward by the noble Baroness, Lady Hamwee. She wants to underline the independence of the commissioner by changing her title, but then setting out more clearly in the Bill how she ought to fulfil that role. That seems to be slightly inconsistent. It is also important to note that the commissioner is not a one-woman operation; she will be supported by an office comprising around a dozen full-time equivalent staff. Reflecting modern ways of working, that will be a mixture of full and part-time appointments.
Turning to Amendment 17, I certainly agree with the noble Baroness, Lady Hamwee, that nomenclature can be important, and symbolically so. But I do not think we should get into the habit of labelling every commissioner or other statutory office holder in law as independent. Granted, as she mentioned, we have the Independent Anti-Slavery Commissioner, but we do not have an independent victims commissioner, an independent children’s commissioner or, as the noble Lord, Lord Hunt of Kings Heath, mentioned, a new independent commissioner created under the Medicines and Medical Devices Bill. I do not think any noble Lord would suggest that holders or previous holders of this office, such as my noble friend Lady Newlove, were any less independent because the word did not appear in statute in their job title.
Nicole Jacobs has amply demonstrated her independence from the Government—not least, as the noble Lord, Lord Hunt of Kings Heath, pointed out, in the way she is campaigning for changes to the Bill. Her independence will come from the statutory framework provided for in Part 2, boosted by the provisions in the framework document, but also by the way she conducts herself once she is formally appointed in the role after this Bill receives Royal Assent. To add a word to her title in the Bill would in no practical terms augment her independence, so we do not think that amendment is necessary.
Amendments 18 and 19 would mean that the commissioner, rather than the Home Secretary, would be able to appoint staff for her office. Clause 6 provides for the staffing of the commissioner’s office by the Home Secretary, as well as accommodation, equipment and other facilities. It does so for a simple practical reason. We are creating here a statutory officeholder, not a body corporate. The commissioner will have no separate legal persona and therefore cannot, as a matter of law, appoint her own staff or otherwise enter into other contracts. To answer the question posed by the noble Lord, Lord Rooker, the accounting officer function therefore rests with the Home Office. We will write to set out that position more fully, not least because several noble Lords were interested in it and picked up on it.
Consequently, as a matter of form, the commissioner’s staff will be Home Office civil servants. Crucially, however, Clause 6(2) provides that the commissioner must approve the appointment of all her staff. To address the point raised by my noble friend Lady Newlove, one of the contracts that she cannot sign is for office space. Obviously, she does not exist in law until the Bill is passed, but the Home Office is looking for suitable office space for her—not located in Marsham Street, where the Home Office is, to illustrate her independence. At the moment, like so many other people, she is working from home because of the pandemic.
In addition, we have made further provision in the framework document provided for under Clause 11. This sets out how the commissioner and the Home Secretary will work together, including on matters such as governance, funding and staffing of the commissioner’s office. The draft framework document makes it clear that, while the commissioner’s staff will be provided by the Home Office, the commissioner will have day-to-day direction and control of staff in support of her work. Moreover, as I said, appointments can be made only after consultation with, and with the approval of, the commissioner. In fact, the commissioner or her chief of staff will conduct recruitment campaigns and the commissioner will be responsible for deciding whom to appoint. I hope that these reassurances are sufficient for the noble Baroness to withdraw her amendment.
Baroness Hamwee (LD) [V]
My Lords, I thank noble Lords who have weighed in on this subject. Committee stage is the opportunity for us to make our views known, even if we do not really think that something should be in the statute. I am not the first, and I shall not be the last, to have used that opportunity.
I hope I have not given the impression that we are anything other than extremely impressed by the job that Nicole Jacobs has done and is doing. I mentioned her energy and determination, and could go on about her grasp of the subject and so on. I would be pleased if noble Lords took all that as read.
I hope it is not really inconsistent—is that what I heard the Minister say?—to call for independence but suggest that the job should be full-time or, to put it another way, not part-time. I do not think it is at all inconsistent. I cannot believe the Minister is suggesting that, in the other bit of time that might be available, the postholder would take up a position in any way in conflict with acting as domestic abuse commissioner. That would clearly not be appropriate.
Independence is in more than the title, of course, and the question from the noble Lord, Lord Rooker, was very good. The answer has rather confirmed much of what noble Lords have been saying. I looked at the titles of the other commissioners but, as I have said, it very much exercised the House at the time of the 2015 Act. I did not read independence, in the way we have been talking about it, into the draft framework document.
I liked the reference to giving you armour when dealing with the Home Secretary that the noble Baroness, Lady Newlove, made. She is right to point to the—“loyalty” may suggest something I do not want to suggest, but the buy-in from the team. This is teamwork led by the commissioner.
I still feel that being seen to be independent is important, but most important of all is having the tools. Noble Lords have talked a good deal about the ability to hire one’s own staff. Coming out of this group of amendments, that may be the issue we will want to return to at the next stage, but at this moment I beg leave to withdraw Amendment 16.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Baroness Hamwee ExcerptsThursday 21st January 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 161-I Marshalled list for Third Reading - (18 Jan 2021)
Baroness Williams of Trafford (Con)
My Lords, these amendments remove from the Bill the ability to authorise participation in criminal conduct for devolved purposes in Scotland. I have just outlined why we have tabled these amendments: they are in response to the decision of the Scottish Government that they cannot recommend legislative consent. The amendments, therefore, respect the Sewel convention.
Authorisations necessary for the purpose of national security or the economic well-being of the United Kingdom relate to reserved matters, and public authorities will still be able to grant authorisations for these purposes for activity in Scotland. An authorisation necessary for preventing and detecting crime, or preventing disorder, is not in itself reserved. An authorisation granted for the purpose of preventing and detecting crime, or preventing disorder, may, therefore, relate to devolved matters, and it will be these matters to which the Bill will not apply.
In the immediate term, public authorities will need to continue to rely on existing legal bases for such authorisations in Scotland. Were these bases to change—I note the legal challenge currently before the Court of Appeal in relation to MI5’s existing legal basis for this activity—it would be for the Scottish Government to bring forward their own legislation to place this conduct on the clear and consistent statutory basis that the Bill delivers. I beg to move.
Baroness Hamwee (LD) [V]
My Lords, of course, we do not intend to oppose the government amendments —the devolution settlement is to be respected. However, I have some questions, the answer to which at least one of which I can work out from the Minister’s introduction to the amendment. She has had my notes, so I will go through the points that occurred to me.
First, can the Government say anything about their assessment of the impact of what the Minister has just explained? In Committee, she referred to minimising the “immediate operational impact”. It appears to be acknowledged, therefore, that there is some impact. What happens if Scotland legislates differently? The Minister’s letter to noble Lords of 13 January explains one of the issues, which I take to be the major issue, about which the Scottish Government was concerned: an amendment to the limits to conduct that can be authorised; that is, whether specific listed crimes should be excluded. The House has debated that point and I am not seeking to reopen the matter.
In Committee, the Minister reminded us that national security and economic well-being are reserved, not devolved; she has just repeated that. In that case, could there be challenges—it seems to me that there could be—as to whether certain conduct is merely, if that is the right word, a crime? It is not merely a crime, but the House will understand that I am referring to a crime that does not fall within the other categories. The Minister also said that public authorities will continue to rely, in the immediate term, on the existing basis for an authorisation—which, I take it from what she said, is the non-statutory basis.
How, then, does Clause 8 work? That clause says that the Bill extends to Scotland and Northern Ireland, save that Acts of the Scottish Parliament are not amended. The Minister has introduced Amendment 7 —as well as Amendment 8—which amends Schedule 2, the list of consequential amendments. This provides that there may not be a criminal conduct authorisation if
“all or some of the conduct … is likely to take place in Scotland.”
If some of the conduct is in Scotland and the rest in England, Wales or Northern Ireland, does that mean there have to be parallel authorisations, one statutory and one non-statutory? Or do I understand from what the Minister said that the Government in England, Wales and Northern Ireland will proceed on the non-statutory basis so it will be aligned with the authorisation in Scotland? A criminal conduct authorisation prompted by an ordinary crime, if I can call it that, cannot extend across the border but, of course, the crime may well do so.
Finally, the Minister may or may not be able to say whether the issue is wider than the Bill. We will be in Committee next week on the Counter-Terrorism and Sentencing Bill and I gather from government amendments that there is an issue there—but is it an even wider issue on legislation? I hope the Minister can help with my questions, which I have tabled in order to understand how the Bill will operate in this circumstance.
Lord Rosser (Lab) [V]
I thank the Minister for her explanation of the purpose of these government amendments and for her letter of 13 January explaining the position in the light of the confirmation from the Scottish Government that they are unable to recommend consent for devolved provisions within the Bill. We understand why the Government have brought forward these amendments today and accept the need for them. Our key concern is whether the situation that has now been reached will have any adverse impact at all on national security and economic well-being, UK-wide, and it would be helpful if the Government could confirm, as I think the Minister has sought to indicate, that there will be no such adverse impact.
The letter from the Minister of 13 January states that the Scottish Government
“require further amendment to the Bill in relation to limits to the conduct which can be authorised under the Bill.”
As this House has now added those limits to the Bill, are the Government minded to change their stance on that issue and accept the amendment concerned?
Finally—I appreciate that this is a matter to which the Minister has also made reference—will the Government say what the impact will be, first in Scotland, to which she referred, and also in the UK as a whole, if the present legal basis for authorising criminal conduct changes, based on the outcome of the current, ongoing court case?
Covert Human Intelligence Sources (Criminal Conduct) Bill
Baroness Hamwee ExcerptsWednesday 13th January 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-R-II(Rev) Revised second marshalled list for Report - (11 Jan 2021)
Baroness Hamwee (LD) [V]
My Lords, I was very pleased to put my name to the amendment in the name of the noble Lord, Lord Young, and the amendment in the name of the noble Baroness, Lady Kidron, and to be in the company of those who have spoken so far. At a point when I thought that the issues around the granting of criminal conduct authorisations to vulnerable people might be lost because of the detail of our procedures, I tabled Amendment 25, but the point was not lost in the amendments from those of us who are not satisfied by the Government’s proposals.
Many noble Lords have been very clear about what ranges from discomfort to the widely held deep anxiety about using a child as an agent, and the even greater anxiety about authorising—which must often be heard as instructing—a child to commit a crime. We know what we think about grooming: we condemn it and we support measures to prevent or, if need be, respond to it. We are aware of the complexities of the development of a child’s brain—indeed, of its development well into an adult’s 20s. The noble Baroness, Lady Bull, was very clear about this at an earlier stage. I am bluntly opposed to involving someone under the age of 18—a child—in such activities. I feel that I would be complicit in something that I abhor by giving conditional approval, and very uncomfortable about applying the art of the possible to assessing what might be agreed by the House in the case of a child. Weighing two moral goods against one another tests anyone.
I understand the point made by the noble Baroness, Lady Massey, about prior judicial approval—I fear that that ship has sailed, for the moment, at any rate—as distinct from notification, as mentioned by the noble Baroness, Lady Kidron. It is, as I said, the art of the possible. However, better that there is something rather than nothing. I am not dismissing explanations of the situations in which only someone very young would be credible, nor of steps taken by the authorities now, to which the noble Lord, Lord Young, referred.
Therefore, while supporting the amendment tabled by the noble Lord, Lord Young, I have added my name, on behalf of these Benches, to Amendment 24, tabled by the noble Baroness, Lady Kidron. It covers, as it should, people who are vulnerable—in the words of the amendment—who are often involved in county lines, as cuckoos, for instance, and victims of modern slavery or trafficking, about whom the noble Baroness, Lady Young of Hornsey, has spoken so clearly.
On the one hand, we want to support and protect the people described in the amendment
“against significant harm or exploitation”.
On the other hand, we are prepared to put them in the way of exploitation or mental and emotional harm, which they are not equipped to deal with. On the one hand, we congratulate ourselves on our world-leading legislation and activities to deal with modern slavery and trafficking, and on what we do to support those who have escaped or been rescued from it. On the other hand, we are prepared to make use of them in such a way as to run the risk of further harming survivors, who need to recover, and whose view of authority figures in Britain needs not to be undermined.
The Minister will direct us to the term “proportionate”. That needs the detail of the factors that apply, hence the words “exceptional circumstances” in proposed new Section 29C(7). Our amendment brings the welfare of the child into the requirements of “necessity” and “proportionality”. The criminal conduct authorisation must be compatible with, and not override, the best interests of the child. More than it being “a primary consideration”, in the words of the convention, I wonder whether the convention’s authors contemplated this situation. All other methods must have been exhausted and, most importantly, there must not be a risk of reasonably foreseeable physical or psychological harm.
The Government’s amendment may at first glance seem beguiling. It does more than double the length of the 2000 order, but it does not even put the safeguards of that order, as it is now, on the face of the Bill—it merely amends the order. This is secondary legislation, or secondary protection, to pinch the phrase used by the noble Baroness, Lady Kidron. The importance of primary legislation is something that we have alluded to a good deal. Essentially, it deals with CCAs under Section 29B, separately from the engagement of a spy or source under Section 29, without materially adding to the limitations. Incidentally, I am amused, given our debate on Monday, to see that a CCA granted to a child is limited to four months.
I note, of course, Amendment 40, which requires the Investigatory Powers Commissioner to keep under review “in particular” whether authorities are complying with requirements in relation to children’s CCAs. Either this is unnecessary—and we should think so, in the light of what we have heard from the Minister regarding review—or it weakens the IPC’s duties regarding adults.
There is nothing in the amendment about the vulnerabilities of those explicitly and rightly included in the amendments tabled by the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I congratulate the noble Baroness on taking up this baton and arguing the case so powerfully.
Baroness Chakrabarti (Lab) [V]
My Lords, it is a privilege to follow the noble Baroness, Lady Hamwee, and all those who have spoken, but it is a sad one indeed. Before we, to use her words, congratulate ourselves on our caveated, compromised support for children’s rights, I want to be absolutely clear that, during the passage of this Bill, absolutely no one in your Lordships’ House has done more than the noble Lord, Lord Young of Cookham, to truly attempt to protect children’s rights, so my ultimate tribute is to him.
I was also incredibly grateful to my noble friend Lady Massey for her brilliant exposition of the Joint Committee on Human Rights’ views on this aspect of the legislation. Its report on the Bill overall is one of the finest I have seen from any committee of either House when it comes to analysing and apply human rights principles. I offer great thanks to her on behalf of the whole committee, which is chaired by Harriet Harman in the other place, of course.
The road to hell is paved not just with good intentions but with “exceptional circumstances” as well. While the noble Baroness, Lady Kidron, also made a very passionate speech, I am afraid that even Amendment 24 contains too many caveats and holes to give proper protection to children from what is, ultimately, I am sorry to say, state-sponsored child abuse. To use a child as a CHIS is, I am afraid, just that. The noble Lord, Lord Young, put it very well when he said that, were there to be a scandal involving a child CHIS, the pendulum would swing very quickly. I hope that this time will come sooner rather than later—without such a scandal and the great damage to, or loss of, a child.
Of course, it has to be said that the scope of this Bill never allowed us to do what we really should be doing: banning the use of children as undercover operatives altogether. We were never allowed that opportunity by the Long Title of the Bill. That is the game that those engaged with drafting government legislation play. I was a Home Office lawyer for some years, and I know that the game is to make the Long Title sufficiently narrow to prevent a whole wealth of amendments. However, we should not have been looking at undercover operatives just in relation to criminal conduct without being able to look at the overall scheme, including judicial authorisation, not just of children or criminal conduct but undercover operatives altogether. As such, we start from a very imperfect place.
I am afraid that even Amendment 24 allows a relevant agency to decide whether an adult, including “the parent or guardian” of the child, is “deemed appropriate”. Crucially, in defining “exceptional circumstance”, the amendment uses the words “necessary and proportionate”—not even the higher human rights standard of “strict necessity”. That is very unfortunate indeed.
I will be clear: the best way—although it is still not perfect—to protect children in this group would be to support Amendments 12 and 13, in the name of the noble Lord, Lord Young of Cookham, and the Joint Committee on Human Rights’ Amendment 14. That package is the best we could do to do right by children—but, of course, I heard the signal from the noble Lord, Lord Young. I hope that both Front Benches will get behind his position, the human rights position. If they do not, I will follow his lead and vote for the sticking plaster over the gaping wound of child abuse that is Amendment 24, but I would do so with an incredibly heavy heart and more than a little embarrassment. I do not blame the noble Baroness, Lady Kidron, but, as I say, her speech, at its best, was an argument for Amendments 12, 13 and 14.
Baroness Hamwee
“RELEVANT AUTHORITIES FOR THE PURPOSES OF S. 29BPolice forces etcA1 Any police force.B1 The National Crime Agency.C1 The Serious Fraud Office.The intelligence servicesD1 Any of the intelligence services.”Member’s explanatory statement
This amendment would limit the public authorities entitled to grant criminal conduct authorisations.
Baroness Hamwee (LD)
We have Amendments 27, 29, 30 and 45 in this group. Amendment 27 is the central amendment. I appreciate that it may not be immediately obvious, but it responds to how the Bill is constructed, so I will try to explain.
The Regulation of Investigatory Powers Act—RIPA—allows for a number of authorities to deploy sources. That number is reduced by this Bill, and we support that. However, at the same time, all authorities that remain on the list are relevant authorities, which are also able to grant criminal conduct authorisations. Our amendment would leave out what is a repeal of the list in RIPA—that repeal follows from the Bill’s new Part A1 of the RIPA schedule—but it puts back the police, the National Crime Agency, the Serious Fraud Office and the intelligence services for the purposes of new Section 29B, which is for new criminal conduct authorisations. In short, amendments 27 and 45 would mean that all the authorities listed in Clause 2 are relevant authorities for the purposes of the sections of RIPA that continue and so can deploy sources, but only the police, the NCA, SFO and intelligence services can grant CCAs. Simply taking out a number of authorities from the Bill does not achieve that, though it took me a while to work out how to get there and we got it wrong in Committee. The Minister was kind enough not to rub that in.
At the last stage, the noble Baroness, Lady Massey, and the noble Lord, Lord Dubs, explained the concerns of the JCHR, and they have tabled their amendment again. Other noble Lords had amendments and spoke to concerns about what the noble Baroness, Lady Chakrabarti, called overreach. The noble Lord, Lord Cormack, proposes leaving off the list the five authorities which have caused the most surprise among a number of noble Lords.
At the last stage and on Monday, I felt several times that those of us who have been putting forward amendments to the Bill, in what I described then as attempts to buttress safeguards to the granting of CCAs, while on the whole accepting their use, were thought to be attacking the use of agents. We were not. We understand the safeguards in the Bill and the draft code of practice—necessity and proportionality, as well as the procedural safeguards. Of course, most of us do not have the direct experience of other noble Lords, and most of us could not do what they do or have done. But I hope they do not regard it as disrespectful of them if I say that one of the attributes of this House is that we blend expertise and experience with, I hope, reasonably informed and intelligent generalism. It would not be good for democracy—I am aware of the irony of an unelected politician making the point—if experience in a particular area were not leavened by other experiences, including life experience.
Questioning the authorities that can grant criminal conduct authorisations is not questioning the use of agents. I understand the argument that it may be better not to split activities and that, if criminal conduct is to be authorised, it is better to authorise an agent already placed in the authority, perhaps even an employee. On Monday my noble friend Lord Paddick made the counterargument that, if the situation is so serious that a CCA is contemplated, it should be a matter for the police. It is a judgment between the two positions. I regard the granting of a CCA—permission to commit a crime for the greater good—as so serious that it should be more limited than the deployment of an agent. I do not dispute that some of what the authorities in contention, if I may put it that way, deal with is extremely serious; but I started to wonder why we would take out of the list of those who can deploy a CHIS the Gangmasters and Labour Abuse Authority and the Marine Management Organisation while retaining, for instance, the Environment Agency.
Our other amendments, which would be pre-empted if Amendment 27 is agreed, are to limit the authority of the Armed Forces to the police of the three services— the reference to the intelligence services is unaffected—as we assume, or hope, that it is not intended that every part of the Armed Forces should be entitled to give agents the authority to commit crime. In the case of the Home Office, we would limit the Home Secretary’s right, in effect, to authorising herself to prevent or detect modern slavery and trafficking, picking up on the Minister’s explanation of the inclusion of the Home Office being specifically related to immigration enforcement—she gave an example. I beg to move.
Baroness Massey of Darwen (Lab) [V]
My Lords, I thank the noble Baroness, Lady Hamwee, for her explanation of this set of amendments. I shall be brief in presenting Amendment 28. I am a member of the Joint Committee on Human Rights, which considered the Bill and the issue of granting authorisations. This amendment would restrict the authorities that can grant criminal conduct authorisations to police forces, the National Crime Agency, the Serious Fraud Office and the intelligence services.
The recent Joint Committee on Human Rights report considers the wide range of public bodies in the Bill unnecessary and unproductive. Criminal conduct authorisations, from a human rights perspective, must first consider whether the exceptional power to authorise crimes to be committed without redress is truly necessary for all these public authorities.
Baroness Hamwee (LD) [V]
I repeat what I said at the start of this debate: that the reduction in the list is not about reducing the number of authorities which can engage covert human intelligence sources. It is about which of those authorities can grant criminal conduct authorisations—as the noble Lord, Lord Cormack, put it, fighting crime by allowing the commission of crime.
I acknowledge the reduction in the number of authorities that can engage human sources. I had hoped that I had explained that at the start of the debate, when I sought to explain the structure of Amendment 27. I do not dispute that a lot of what all the authorities in question deal with is very serious, including organised crime in some instances, but I have to say that I end this debate far more disturbed and distressed than I was half or three-quarters of an hour ago. We seem to be sliding into an acceptance of the position that, if there can be a CHIS, subject to the safeguards in particular cases that we have spent quite a lot of time on, there can be a criminal authorisation.
Should every public body have what has been described as a tool? It is a tool, but it should be a tool employed and allowed in only the narrowest, most specific and most extreme of circumstances, which is what the agencies that remain on the list of those able to grant criminal conduct authorisations deal with. They deal with extreme circumstances, and that includes the police. If every public body or public authority on this list has a tool, how should we regard the police? How should we think about society’s attitude to using crime to fight crime? I should have thought, for instance, that it should be for the police to deal with the theft of vaccine. I had hoped that I had distinguished very clearly between the two different situations.
I was puzzled by the noble Baroness, Lady McIntosh, saying that she understood that no case studies could be provided for some of the authorities because the provisions were not yet applied. I had thought that the whole Bill was about putting on a statutory basis what had been going on without that statutory basis. However, having said that—quite emotionally, I accept, because I do feel that this is emotional as well as something to which we should apply rigour and judgment, and I had hoped that that was what we were doing—I think it is about how we regard how we run our society, the place of the police in it and the trust that we have in public authorities. However, we have heard Labour say that it cannot support this amendment, so I shall not take the time of the House on a Division and I beg leave to withdraw.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Baroness Hamwee ExcerptsMonday 11th January 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-R-II(Rev) Revised second marshalled list for Report - (11 Jan 2021)
Lord Carlile of Berriew (CB) [V]
My Lords, it is a real privilege to follow the noble Lord, Lord McCrea of Magherafelt and Cookstown. With his immense experience of events in Northern Ireland, he has brought a real reality dose to this debate, and I commend every word that he said to be considered carefully.
The noble Baroness, Lady Chakrabarti, opened this debate with her customary clarity, consistency and commitment. However, it was noticeable that on her side of your Lordships’ House very cogent speeches to the contrary were notably made by the noble Lords, Lord West and Lord Rooker, and I agree with both of them.
There are two issues that have not featured very much so far in this debate. One is that, far from dodging the rule of law, Her Majesty’s Government have chosen, remarkably, to put CHIS on a fully statutory footing, which makes it more part of the rule of law than outside it. I say particularly to the highly respected lawyer, the noble Lord, Lord Hendy, that there is nothing about the rule of law that prevents something like CHIS being part of the rule of law. Indeed, it is right that the use of CHIS should be carefully circumscribed in that way.
The other issue that I particularly want to mention which I do not think has featured at all so far in this debate is the draft code of practice concerning the authorisation and use of CHIS, which says in paragraph 3.2:
“The 2000 Act stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 29(3) of the 2000 Act.”
Indeed, if one looks at the paragraphs that follow paragraph 3.2, one sees that the code of practice makes it absolutely clear how careful authorising officers must be in the authorisation of a CHIS, whether just to be a CHIS or to commit a criminal act. Indeed, that code is not merely for guidance; in this instance, at least, it has the force of law.
To take an example other than those mentioned by the noble Lord, Lord McCrea, let us suppose, and I suspect I am not too far from reality in this, that a CHIS is asked and authorised to participate in acts forming part of a serious robbery in order to bring a major robbery gang to justice, maybe the robbery of a bank or a robbery at an airport. The CHIS has to determine whether to do that.
It is worth adding at this point, and I have some recollection of the way this is done from my time as the independent reviewer of terrorism legislation, that CHIS are not merely chosen randomly in a pub to become covert sources; they are considered with great care. In many cases, behavioural analysis is carried out to ascertain whether the CHIS is going to be reliable and will adhere to the authority that they are given. So someone becomes a CHIS not only if they are willing but if they have been assessed as suitable and it is necessary in the circumstances of the particular case.
So how is the CHIS going to react? These are not normally random people whom one bumps into on the high street; they are people who are usually already involved in crime or are in relationships with criminals; they are certainly involved in a criminal fraternity. What is their first reaction going to be? It is going to be, “If I do this, will I be immune from prosecution or do I run the risk of being prosecuted?” When someone takes the potentially huge personal risk, even to their life, of becoming a CHIS, provided that they are told that they must strictly adhere to their permission and not commit any other criminal offences, otherwise they may well be prosecuted, surely it is reasonable within the rule of law, and in the interests of society, not least in detecting and removing serious crime, for an assurance to be given that they will not be prosecuted.
Indeed, what is the reality of what happens without these clear new proposed laws? A CHIS is asked and authorised to commit a criminal offence. If they are prosecuted, they will naturally be horrified that they are being prosecuted because the public authority asked them to commit the act that they have committed. In the real world, the assurances that they have been given by officers will be certain protection against prosecution and the material of abuse of process applications before the court. However, going through that process is far from clear and far from providing the confidence that CHIS need, so I suggest to your Lordships, and respectfully to those who, with completely honourable arguments, have proposed Amendments 1 and 2, that in fact what is proposed is fairer, clearer and in the public interest.
I now turn briefly to Amendments 21 and 22, moved with great clarity by my noble friend Lord Anderson of Ipswich. Like him, I will be very interested in the Minister’s response to this debate. The principle in Amendment 21 is sound: if there is public—I use the word in its broadest sense—corruption in the way in which the CHIS has been authorised to commit the crime, then that public misbehaviour should be capable of prosecution under the broad offence of misconduct in public office. This offence has proved flexible to deal with all kinds of circumstances in which serious and very reprehensible errors have been made by public officers. Indeed, on one occasion, in the Bishop Ball case, it was used to prosecute where some of the indecency offences were out of time—a bishop being in a public office. Amendment 21 seems an entirely sound principle, and I look forward to hearing the Minister’s response.
Amendment 22 seems to provide the balance, which has been discussed by many noble Lords, as to how compensation should be given—for it should be given—if people suffer injury as a result of criminal offences committed by CHIS. The Minister may say that these circumstances are provided for under the existing law, but I urge her to the view—she always listens very carefully to what is said—that it would be of benefit to put the principles of Amendments 21 and 22, possibly amended, into the Bill.
Overall, I respectfully suggest that Amendments 1 and 2 should be rejected, and Amendments 21 and 22 accepted in principle.
Baroness Hamwee (LD) [V]
My Lords, the level of responses throughout the debates on the Bill indicates the level of concerns across your Lordships’ House, including concern for the rule of law. But there is widespread acknowledgement that it is desirable to put these matters in statute; I do not think that is being denied.
The preservation of the status quo as regards the place of the Crown Prosecution Service in the criminal justice system is because the status quo—the CPS—has our confidence, and we support Amendments 1 and 2. There is a reason why we are so often advised to leave alone what is working. The DPP is able to consider, and is accustomed to considering, the detail of each case, including whether the individual concerned is an untrained member of the public. I agree that agents are not generally naive young things met in a supermarket queue, or wherever; they are not random choices. Like the noble Baroness, Lady Kennedy of The Shaws, I regret that such a range of CHIS, and thus of criminal conduct authorisations, is combined for the purposes of this debate.
In Amendment 2, the proposed new subsection (3B) sets out a clear sequence. It addresses the principle of whether a CCA can sidestep the detailed considerations to be applied, rather than rewriting those considerations—or rather, writing them differently—as Amendment 3 does. Most importantly, it applies the well-established principles underlying the decision to prosecute. I am very pleased that the noble Baroness, Lady Chakrabarti, is pursuing the issues of practicality and ethics.
The Deputy Speaker (Baroness Henig) (Lab)
I have received a request to speak after the Minister and to ask a question from the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, with regard to the criminal injuries compensation scheme, the Minister said that the Bill does not “in practice”—I stress those words—interfere with its operation. Can she confirm that it does not interfere with the scheme either in law, as distinct from practice, or as the scheme is currently drawn; in other words, should we regard the term “in practice” as limiting the scope for application to it, which noble Lords have made clear is something that concerns us?
Baroness Williams of Trafford (Con)
I noticed that the noble Baroness mentioned that point in her speech. The practical application of this will not interfere with the operation of the scheme. She is shaking her head—I do not think she is very satisfied.
Baroness Hamwee (LD) [V]
My Lords, it speaks well of the House that there is such concern about safeguards to buttress criminal conduct authorisations while, on the whole, accepting their use. Noble Lords identify the need for external validation and the oversight of the activities of different agents—of course, here we are dealing only with criminal conduct authorisations, not the whole of what they do—who are not identical across all the “public authorities”, as they are called, that fall within the Bill. We need to deal with all of them.
In most amendments, noble Lords identify the importance of someone with the authority of high judicial office, who therefore commands confidence, as well as the need to be practical, putting their arguments in the context of operational demands and realities, and paying attention to the timeframe. Of course, there are different proposals. I recall a discussion in a Select Committee a while ago about how, when you are a Minister, having to sign things off brings home to you that you are accountable—you have to answer for your decisions. We have heard from colleagues who have held high political office—of course, I have not had experience of this or judicial office. We support judicial authorisation.
The noble Lord, Lord Carlile, asked who judges the judges—but there is always that question, in the same way that there is always the question of who scrutinises the scrutineers. I have had the impression that the very experience of considering something after the event equips one for considering issues in advance, and commissioners are judges as well.
My noble friend spoke to all the amendments, including our Amendment 43, which is an outlier, not because it is inconsistent with the others—it is not—but because it is about a review of the regime rather than particular grants of CCAs. We do not suggest that the Investigatory Powers Commissioner is not alert to how CHIS may be used, but Amendment 43 would provide for a review of the regime—or the scheme, if you like—in the round, as distinct from tweaking legislation, which is what we are doing now, in response to court proceedings. As my noble friend said, it attempts to square the circle.
In their response to the JCHR, published this morning, the Government said on the issue of review that the current process
“provides for systemic review of all public authorities’ use of the power and allows for continuous improvement”
and so on. I think that “systemic” is probably not a typo, but I wondered whether it meant “systematic”; maybe it means both. I think the noble Baroness, Lady Manningham-Buller, would say it means “systemic”.
On Amendment 17, my noble friend stood back to consider the process as a whole; if he sets the grant of a CCA in the context of the deployment of the CHIS, it applies to agents used by the police and the intelligence services—not in exactly the same situations, of course—and provides for urgency.
We sought in Committee to answer the question of what follows with our own amendment to that of the noble Lord, Lord Anderson. Amendment 34, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, addresses the need for an outcome. His amendment is clear about determination, and I think that the noble Lord, Lord Anderson, said he would accept it. I was interested in the point made by the noble and learned Lord, Lord Thomas, about how the matter might evolve. We do not oppose Amendments 33 and 34, but notification is not approval, as noble Lords have noted, so they are different issues, and the amendment of the noble Lord, Lord Anderson, and our amendment are compatible. My noble friend Lord Thomas of Gresford was very persuasive on the possible fallout if there is no prior notification. The breadth of his speech has spared me, and therefore your Lordships, having to wind up on that, so I am grateful to him.
In Committee, the noble Lord, Lord Carlile, spoke of
“operational practicality together with rigorous scrutiny.”—[Official Report, 24/11/20; col. 210.]
I would summarise amendments on the subject of this debate as indicating that we prize independence, objectivity and respect for the rule of law—the protection of the citizen against the state as well as by it. We particularly support, of course, Amendment 5 and our Amendment 17.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this long but worthwhile debate. First, I pay tribute to the noble Lord, Lord Rooker. I could have just referred noble Lords to his speech then sat down, because he made his points so succinctly and brought out some case examples. My noble friend Lord King talked about the recent NCA operation that managed to yield so much thanks to undercover operatives.
I also echo for a moment the summary by the noble Baroness, Lady Manningham-Buller, and join her in thanking some of the undercover operatives who, as she said, literally risk their lives. I do not know, as I have not met any of them, but she is an expert in this area and, if she says that, I join her in tribute to them. There are no motives ulterior to keeping the public safe. She talked pertinently about oversight combined with the expertise provided for by this Bill and made the point that, when she started, there was no law at all governing the framework of this activity. She also talked about the Independent Reviewers of Terrorism Legislation—the two that were in our House and have contributed so much to this Bill, the noble Lords, Lord Carlile and Lord Anderson—and made the true point that there can be no exact accusation of conflict of interest with them. She talked about the vital role of the IPC—the report he does on a regular basis and the independence of the role. She talked about the double lock and made the point that judges have changed over the years, as the noble Baroness, Lady Kennedy of The Shaws, said, but so have the police and MI5. Noble Lords—the noble Lord, Lord Hain, in particular—will talk about some of the things that happened that under our new legal framework would not be either necessary or proportionate and would be ruled as such.
I shall start with the Investigatory Powers Commissioner: I want to welcome his most recent annual report, which was published during the passage of this Bill. He already plays an important role in providing independent oversight of this activity. But I have always been clear that the Government are willing to listen to the concerns of noble Lords and consider amendments to strengthen the Bill, providing they do not have an adverse effect on the ability of public authorities to do their job and keep us safe.
Baroness Hamwee
Member’s explanatory statement
This amendment would insert a requirement that belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 6, 18 and 36 in this group. Under new Section 29B, the person granting a criminal conduct authorisation must believe that the authorisation is necessary on one of three specific grounds, including that it must be
“proportionate to what is sought to be achieved”
and that the requirements imposed by the Home Secretary will be satisfied—which we have had confirmed as being restrictive rather than loosening safeguards. Amendment 36 is the Scottish equivalent of Amendment 6.
The noble Lord, Lord Anderson, had this amendment in Committee and I am grateful to him and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to it. As party politicians, my noble friend Lord Paddick and I could be thought of as political troublemakers, which is not what we set out to be. However, the noble Lord and the noble and learned Lord who also signed this amendment apply their measured, informed objectivity. The Bar Council has also been in touch with me to give its support.
Belief is subjective, informed or misinformed by background, experience and personality. Some people are naturally more inclined to be that bit more optimistic; I want to avoid judgmental terms such as “casual”. Necessity and proportionality are rightly required criteria, but they lose their force as safeguards unless there is a degree of objectivity in their assessment. “Reasonable” is so usual a term in legislation that its omission itself assumes some significance.
I do not think we have heard an argument that a belief must be reasonable to be a belief, but I anticipate that. I reject that it is implied, because there is no reason to omit the term—and anyway, we should not work on the basis of what may be implied by long usage, as distinct from precedent.
In Committee, the Advocate-General said that under section 3.10 of the draft code of practice,
“the person granting the authorisation should hold a reasonable belief that it is necessary and proportionate.”—[Official Report, 1/12/20; col. 667.]
Section 3.10 is within the section on general rules on authorisation of someone to take on the role of CHIS. The paragraph specifically on criminal conduct authorisations says that
“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”
The noble and learned Lord told the Committee that new Section 29B was
“drafted to align with the existing Section 29”,
and that the amendment would
“cast doubt on the test to be applied for other authorisations”;—[Official Report, 1/12/20; col. 667.]
it would be inconsistent. The engagement of a CHIS is of huge significance, as we have heard this evening and on previous occasions, but it is of a lesser order than a criminal conduct authorisation. In any event, I rather take the view that the Section 29 powers should require a reasonable belief that they are necessary and proportionate to be exercised, and that that should be in the Bill. If the Government accept Amendments 6 and 36, we will not challenge such an amendment to Section 29 if they bring that forward at Third Reading.
The noble and learned Lord, Lord Stewart, said he would clarify this by way of letter. I have not seen that, although I have seen a Home Office email, which went not to me but was passed on, referring to a requirement for a reasonable belief. But I do not think it is a matter of clarification; it should be in the Bill. The government response to the JCHR this morning repeats what the Minister said in Committee. I am worried about inconsistency between the Bill and the draft code of practice. To be clear, I am not suggesting the word should be taken out of the code.
Amendment 18 has found its way into this group, which is perhaps no bad thing given the length of the previous group. It is the seriousness of a CCA that prompted that amendment. It provides that a CCA would expire after four months, although it could be renewed. In Committee, the Minister argued for consistency with Section 29 authorisations, which are for a period of 12 months, and referred to the code of practice, which says that the CCA should be
“relied upon for as short a duration as possible.”
The power should remain “operationally workable”; I think four months fulfils that.
The CCA takes us to an even more serious place than infiltration. As my noble friend pointed out, on the Government’s logic we would not need a Bill to authorise CHIS to commit a crime because it is just the same as deploying a CHIS. This amendment has dropped the monthly review of CCA, which was in our Amendment 49 in Committee, in an attempt to meet the Government part way. Surely it is good practice to have a very clear and fairly frequent timetable laid down; four months is not that often. In many situations it is good practice to have a very clear checklist. This is one of them.
To return to Amendments 6 and 36, as the noble and learned Lord, Lord Thomas, said so succinctly in Committee, anything other than a belief held on an objective basis would be quite exceptional. The Bill ought to be clear, with no room for ambiguity or argument if the matter ever comes before the court. This is such an important point that, in the absence of the Government’s agreement, I will seek the opinion of the House. I beg to move.
Lord Anderson of Ipswich (CB) [V]
My Lords, I have signed Amendments 6 and 36, having tabled similar amendments myself in Committee. At this stage, I am a little mystified by the Government’s position. They seem to accept that the relevant belief of authorising officers should be reasonable to the point where they have made an amendment along these lines to the code of practice at paragraph 6.4. Yet they refuse to make the equivalent amendment to the Bill.
The noble and learned Lord the Advocate-General defended the Government’s position in Committee, as the noble Baroness, Lady Hamwee, said, on the basis that it would promote consistency between different parts of the Regulation of Investigatory Powers Act. I suggest that is an argument of little force, given the unique nature of the power conferred by the Bill.
In fact, it is the Government’s position that results in a greater and more damaging inconsistency between the terms of the Bill and the associated parts of the code of practice. If the test is to be reasonable belief, it needs to be stated in the law. We are offered a code of practice now amended so that paragraph 6.4 provides that
“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”
A code of practice is not the same as the law and “it is expected” is not even the language of legal obligation; it is the language of a dress code.
This is not just playing with words. On the basis of our first debate, it seems to be common ground that criminal responsibility for incorrect authorisations is dependent, at least in part, on a court having found the authorisation to be a nullity, presumably because the necessity or proportionality criteria were not satisfied. If the legal standard set out in the Act is one of “reasonable” belief, the court will scrutinise whether the officer’s belief was reasonable. If that word is not in the Act, a court will be invited to proceed on the basis of a test of subjective belief or, at most, the relatively undemanding test or public law rationality.
These apparently inconsequential amendments go to the issue of immunity, reflected in my Amendment 21 and in the amendments and speeches of many other noble Lords. That issue is at the heart of the Bill. I hope the Minister will accept Amendments 6 and 36, because she appears to agree with their substance, but if the noble Baroness, Lady Hamwee, presses them to a vote she will have my support.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
I now call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, I am sorry to hear the news about James Brokenshire, whom I have known for a very long time. If the Minister is able, I hope she will pass on our best wishes to him.
She said that we would cause uncertainty about Section 29 and referred to a rational basis for decisions. That seems to suggest that we would never need to use the word “reasonable”, but it is used both in codes of practice and in statutes. I am grateful to the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas. The House is very lucky to have their expertise, and their clear explanations of the importance of what looks like a small amendment but is actually rather significant, based on how these things are applied by the courts.
The statutory code of practice—I accept that it is statutory—is indeed peppered with the term “reasonable”. It is also peppered with the terms “necessary” and “proportionate”, and of course they will be in the Act when the Bill becomes one. However, to say that something is expected—that it is expected that there should be a reasonable belief—reduces the value of what is in the code of practice.
On Amendment 18, briefly, the four months are extendable; it is late, however, and I do not want to go much further with that. However, I do want to come back to Amendment 6. We have not heard an adequate explanation of the Government’s resistance to this, if I may put it that way. I would like to test the opinion of the House.
Domestic Abuse Bill
Baroness Hamwee ExcerptsTuesday 5th January 2021
(3 years, 10 months ago)
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Baroness Hamwee (LD) [V]
My Lords, I look forward to working on a Bill welcomed across the House, although we must not let ourselves think that agreeing words on paper solves all problems, nor that welcoming it means that we should not continue with scrutiny. I, too, thank all the organisations that have briefed us so thoroughly. I have read and heard almost nothing that I am not keen to pursue, so an omission today is not an omission from our thinking; it is time constraints that mean that I cannot mention organisations or noble Lords by name.
In welcoming Nicole Jacobs’ appointment—her enthusiasm and energy are evident—we must remember that she will not always be the post holder. I make only one comment for now on the detail of the post. I was shocked to find that the role is not formally full time. That seems mean-minded, and an assumption on the part of the Government, as we all know that people in such a job are likely to work far more than the formal hours.
We will be asked not to make this Bill a Christmas tree, but given how often it has made way for other legislation, I think we are entitled to assume that opportunities will not come thick and fast after this Bill, so there is a shopping list.
There has been much mention of awareness of domestic abuse, not only that it happens, online and off, nor only of what support is needed, but of how each of us needs to be open and alert to recognising someone who is affected—non-fatal strangulation is not new—and to finding ways to help, and for that someone to seek and find formal and informal support. Awareness on the part of the Government means walking in people’s shoes, really understanding why various provisions and amendments are important and the real difference that each could make. I want to be clear that I am not for a moment suggesting the slightest lack of empathy on the part of the noble Baroness, Lady Williams, Victoria Atkins or Alex Chalk, but we all know how government as a whole can present obstacles. Every department has a role in making relevant cases to the Treasury—for instance, on legal aid, on the real-life impact of universal credit paid in arrears by default and into a single bank account, and on the “no recourse to public funds” rule excluding migrants.
Migrants are a part of our society. I have banged on often enough about the use of data for, to quote the Act,
“the maintenance of effective immigration control”,
for the Minister to expect me to raise the sharing of information. Immigration status should be irrelevant—or, rather, we should be particularly alert to their additional vulnerabilities and needs such as a support net, protection, recovery and respite, all of which are recognised in the Home Office tender for the Support for Migrant Victims pilot scheme. Those needs are now; they cannot wait until after May 2022, the date for the submission of the pilot, which, as I say, is out for tender now.
Awareness also requires thorough and thoughtful work on prevention. It is beyond me that the Government take the view that a perpetrator strategy should await the conclusion of piloting prevention orders. They cannot be the whole of a strategy, and it will have to be refreshed periodically, like any strategy; a range of measures will be needed.
It only needs a moment in a victim’s shoes to realise that, even for a victim and her or his children, a bed and a refuge is by no means everything—if they can access one, and a lot of people cannot. But that is crisis intervention. Early intervention and prevention are a no-brainer. Unavoidably, that means investment, not just telling local authorities what to do without the funds. I appreciate that funds are in short supply all round at the moment, but too often the buck is passed without the bucks.
Community-based services must include support for children. It is welcome that there is recognition that children are themselves abused through the abuse of others and affected by their relationship to both abuser and abused. I recall a report by Pro Bono Economics a couple of years ago on the enormous cost of the impact on children.
I referred to funding as investment. Training for all relevant agencies in identifying all forms of abusive behaviour, and asking the right questions to elicit what is going on, is certainly investment.
Many parts of our society have the opportunity to encourage disclosure. The briefing that we have had about the workplace and the role of employers has been hugely helpful. For instance, it is at the points of admission to and discharge from hospital that the abuse of older people can often be picked up. A whole-health approach is called for, and no one who has been through the last 10 months can be unaware of how fragile mental health, as well as physical health, can be.
Nor should we be unaware of the importance of housing. It is offensive that the perpetrator is so often the person who remains in the home that he has destroyed. There are areas of law, as well as supply, to be brought up to date.
I was unaware that the 2018 Act dealing with secure tenancies had not come into effect. I trust we may assume that this Bill—all of it, and more by the time your Lordships have finished with it—will be commenced.
The part played by courts of all types is significant. Neither party should be locked out of justice by procedures or by the courts being made a tool of abuse. We will spend time on the detail of the measures included in the Bill.
I want too to be clear-eyed about remedies, including civil remedies. A notice based on reasonable grounds for belief—and if it is breached, an order based on the balance of probabilities—can lead pretty directly to a criminal conviction. Your Lordships will appreciate the issue of the burden of proof through all this.
The statutory defence in the Modern Slavery Act was significant in 2015, recognising that an offender may be an offender because of being a victim. That it may be better recognised in legislation than in practice, or that there are concerns about misuse or a lack of understanding of its scope, are arguments for improving practice, not for excluding a similar provision. It is a matter of justice. Our response to women offenders—the impact of imprisonment on a woman and her children—is a wide issue, but we can do something through this Bill.
Rather than polygraphs, I would argue for more people better trained to recognise the signs of the telling of truth, evasion and whoppers. I am conversely persuaded of the damage done by post-separation abuse, and by threats; we have heard about the threats to share intimate images, objectifying and dehumanising the person threatened. As noble Lords recognised, response to abuse has a history, with a way to go.
My historical connection with Chiswick women’s rescue goes back not to 1971 but to 1991, when I joined the board, and it was still in the quite awful premises in Chiswick. The statistic of an average of two women a week killed by a current or former partner has remained constant for decades—that is what is often quoted—but it is not about a single gender, age, fitness or disability, or sexuality; it is not about one type of family relationship; it is not about one demographic. Each person affected, or who may become affected, or more seriously affected, is an individual, of whom we should be aware and should support.
Immigration Rules: Supported Accommodation
Baroness Hamwee Excerpts(3 years, 11 months ago)
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Baroness Hamwee (LD) [V]
My Lords, the Home Office relies on the UNHCR in connection with its resettlement programme. The Minister will know that the UNHCR is concerned about asylum seekers being left in limbo, so why did the Home Office not consult the UNHCR and others about the changes and issues such as exactly how people will be assisted to access support?
Baroness Williams of Trafford (Con)
The changes to the Immigration Rules are small and technical, and some of them are clearly almost an extension of Dublin in terms of the safe country rules. On asylum seekers being left “in limbo”, if by “limbo” the noble Baroness means destitute or in any way left to fend for themselves, I say that no one will be left destitute: everyone will be treated with dignity and respect.
Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020
Baroness Hamwee Excerpts(3 years, 11 months ago)
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Baroness Hamwee (LD) [V]
My Lords, the Minister in the Commons said that he
“would not expect employers on 1 July suddenly to check that every member of their staff has EUSS status.” —[Official Report, Commons, Delegated Legislation Committee, 8/12/20; col. 12.]
I know someone from the EU who, several years ago, became a British national. A few days ago, she was asked by a confused and anxious HR manager to prove her status. She was, and is, understandably distressed. Her sister has been in the UK for 15 years but does not want to take British nationality. I hoped that she had applied to the settled status scheme; she had, but the Home Office keeps asking her for her reference, having repeatedly failed to give her one. Is this the legacy?
This SI renders the statute book coherent, we are told. It is coherent in a narrow, technical sense, but is it accessible? I understand free movement is about to end; I understand the Government will emphasise that the SI merely implements the recent Act; I understand this SI will become law. But we have an important task today. This is not to ignore that the inability to amend an SI means we are almost always reduced to an empty gesture, that the instrument’s sheer size presents parliamentarians with an exercise I, for one, feel incapable of fulfilling, or that it raises some considerable concerns. It is incumbent on the Government to do all they can and support others to do all they can, to ensure that people affected are clearly informed as to their position.
I do not deny that to have processed over 4 million applications is really going some. But 42% of the grants, so far, are of pre-settled status, with the difficulties and uncertainties that go with that. By definition, we do not know how many people have not applied. We can be pretty sure that the great majority of them are individuals least able to look out for themselves. Many are likely to have the most difficulty in satisfying the Home Office of their entitlement, and many are likely to be the most in need of support, by way of benefits and housing.
The Government accept there is a big communication job to be done: before the end of the transition period; in the first six months of 2021; and after 30 June. Can the Minister update us on this? I hope it is not going to be more of the same, because we know where it leads when one repeats oneself. I make the point about the different time periods because the rights that follow are different, and different again depending on the basis for the grant of status, whether residence or exercising treaty rights.
The organisations to which potential applicants are directed—and this is no criticism of them—may well have difficulty advising on which rights an individual has in his particular circumstances. There is no duty on them to direct him to where advice may be had. And there is no duty on a public body approached by an EEA national without settled status to direct him to the scheme so that he can be put in a position where that public body can respond; for instance, to deal with a benefit claim. It is no answer that this is complicated. That is precisely why it is incumbent on the Home Office to ensure accurate advice is available.
There is further scope for confusion from an apparent inconsistency between these regulations and the health regulations. I am certainly not arguing for reducing access to the NHS, but to give access to—I think—all NHS treatment but not to housing support is bewildering and illogical. We know the impact of poor housing, and especially homelessness, on health.
I have a specific request of the Home Office: a chart, made available to anyone who needs to understand who is entitled to what, setting out what the rights and protections are for those granted status, applied for at different times, and for those with and without treaty rights—every permutation. If it has already been produced, can it be made widely available?
I understand that among those one would expect to be able to advise, there is uncertainty and unease as to just what the regulations will mean in practice. I have sympathy with the Minister in the Commons, who offered to write with answers to various scenarios that were posed during the debate on Tuesday. That illustrates the complexity, and noble Lords will appreciate that any letter will arrive after the SI is in law.
Noble Lords have indicated very different views today. As the noble Baroness, Lady Ritchie, said, and, as my noble friend made clear, we are enthusiasts for free movement. My noble friend raised the compatibility, or otherwise, of the SI with Article 18.3. The Explanatory Memorandum published with the SI is helpful, but it can go only so far and is itself puzzling in part, to me at least. We are told that certain existing regulations are revoked
“because they omit provisions made as a contingency in the event of a no deal exit, which are no longer required”.
Is this foresight or wishful thinking? There are difficulties and concerns with the substance and with the form, but the Home Office is in a position to help with the translation.