Police, Crime, Sentencing and Courts Bill

Baroness Williams of Trafford Excerpts

Consideration of Commons amendments
Thursday 31st March 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 58 and do agree with the Commons in their Amendments 58C, 58D and 58E in lieu.

58C: Page 43, line 19, at end insert the following new Clause—
“PACE etc powers for food crime officers
(1) In the Police and Criminal Evidence Act 1984, after section 114B insert—
“114C Power to apply Act to food crime officers
(1) The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of offences conducted by food crime officers.
(2) The regulations may apply provisions of this Act with any modifications specified in the regulations.
(3) In this section “food crime officer” means an officer of the Food Standards Agency who—
(a) is acting for the purposes of the performance by the Food Standards Agency of its functions under the Food Standards Act 1999 or any other enactment (including functions relating to the investigation of offences), and
(b) is authorised (whether generally or specifically) by the Secretary of State for the purposes of this section.
(4) The investigations for the purposes of which provisions of this Act may be applied by regulations under this section include investigations of offences committed, or suspected of having been committed, before the coming into force of the regulations or of this section.
(5) Regulations under this section are to be made by statutory instrument.
(6) Regulations under this section may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(7) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(8) In this section “enactment” includes—
(a) an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978, and
(b) an enactment comprised in, or in an instrument made under, a Measure or Act of Senedd Cymru.”
(2) In the Criminal Justice and Public Order Act 1994, after section 39 insert—
“39A Power to apply sections 36 and 37 in relation to food crime officers
(1) The Secretary of State may by regulations provide for any provision of section 36 or 37 that applies in relation to a constable to apply in relation to a food crime officer.
(2) Regulations under subsection (1) may apply any provision of section 36 or 37 with any modifications specified in the regulations.
(3) Regulations under subsection (1) may not apply a provision of section 36 or 37 in relation to a failure or refusal which occurred before the regulations come into force.
(4) Regulations under subsection (1) are to be made by statutory instrument.
(5) Regulations under subsection (1) may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(6) A statutory instrument containing regulations under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).”
(3) In the Food Standards Act 1999, after section 25 insert—
“25A Obstruction of food crime officers
(1) A person commits an offence if the person—
(a) intentionally obstructs a food crime officer who is acting in the exercise of functions conferred on the officer by virtue of section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers),
(b) fails without reasonable excuse to comply with any requirement made of the person by such a food crime officer who is so acting, or
(c) in purported compliance with such a requirement provides information which the person knows to be false or misleading in any material particular or recklessly provides information which is false or misleading in any material particular.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine, or to both.
(3) In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).”
(4) In the Police Reform Act 2002—
(a) in section 10 (general functions of the Director General)—
(i) in subsection (1), at the end of paragraph (ga) insert “; and (gb) to carry out such corresponding functions in relation to officers of the Food Standards Agency acting in the exercise of functions conferred on them by virtue of—
(i) section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers), or
(ii) section 39A of the Criminal Justice and Public Order Act 1994 (powers for food crime officers: inferences from silence).”, and
(ii) in subsection (3), after paragraph (bd) insert—
“(be) any regulations under section 26E of this Act (food crime officers);”, and
(b) after section 26D insert—
“26E Food crime officers
(1) The Secretary of State may make regulations conferring functions on the Director General in relation to officers of the Food Standards Agency (the “Agency”) acting in the exercise of functions conferred on them by virtue of—
(a) section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers), or
(b) section 39A of the Criminal Justice and Public Order Act 1994 (powers for food crime officers: inferences from silence).
(2) Regulations under this section may, in particular—
(a) apply (with or without modifications), or make provision similar to, any provision of or made under this Part;
(b) make provision for payment by the Agency to, or in respect of, the Office or in respect of the Director General.
(3) The Director General and the Parliamentary Commissioner for Administration may jointly investigate a matter in relation to which—
(a) the Director General has functions by virtue of this section, and
(b) the Parliamentary Commissioner for Administration has functions by virtue of the Parliamentary Commissioner Act 1967.
(4) An officer of the Agency may disclose information to the Director General or to a person acting on the Director General’s behalf, for the purposes of the exercise by the Director General or by any person acting on the Director General’s behalf, of an Agency complaints function.
(5) The Director General and the Parliamentary Commissioner for Administration may disclose information to each other for the purposes of the exercise of a function—
(a) by virtue of this section, or
(b) under the Parliamentary Commissioner Act 1967.
(6) Regulations under this section may, in particular, make—
(a) further provision about the disclosure of information under subsection (4) or (5);
(b) provision about the further disclosure of information that has been so disclosed.
(7) A disclosure of information authorised by this section does not breach—
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(8) But this section does not authorise a disclosure of information that—
(a) would contravene the data protection legislation (but in determining whether a disclosure would do so, the power conferred by this section is to be taken into account), or
(b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.
(9) In this section—
“Agency complaints function” means a function in relation to the exercise of functions by officers of the Agency;
“data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).”
(5) The amendments made by subsections (1) to (3) and any regulations made under provision inserted by subsections (1) and (2) bind the Crown.
(6) No contravention by the Crown of section 25A of the Food Standards Act 1999 (as inserted by subsection (3)) makes the Crown criminally liable; but the High Court may declare unlawful any act or omission of the Crown which constitutes such a contravention.
(7) That section applies to persons in the public service of the Crown as it applies to other persons.
(8) If the Secretary of State certifies that it appears requisite or expedient in the interests of national security that any powers of entry conferred by regulations made under provision inserted by subsection (1) should not be exercisable in relation to any Crown premises specified in the certificate, those powers shall not be exercisable in relation to those premises.
(9) In this section “Crown premises” means premises held or used by or on behalf of the Crown.
(10) Nothing in this section affects Her Majesty in her private capacity; and this subsection is to be interpreted as if section 38(3) of the Crown Proceedings Act 1947 (references to Her Majesty in her private capacity) were contained in this Act.”

58E: Page 196, line 1, at end insert—
“(da) section (PACE etc powers for food crime officers);”

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

My Lords, with the leave of the House, I will also speak to Motions B and D.

Amendments 58C to 58E respond to the tenacious and clever campaign by the noble Lord, Lord Rooker, to confer appropriate police powers on the Food Standards Agency to enable it more effectively to tackle food crime. We have always been clear that we support the case, in principle, for conferring additional powers on the FSA, but we need to do this in a holistic way. The original Lords Amendment 58 did not deliver all the powers the FSA was seeking, nor did it provide for independent oversight of what are intrusive and coercive powers of the state. Amendments 58C to 58E remedy these omissions.

The amendments do four things. First, they will enable regulations to be made conferring relevant PACE powers on the FSA. Secondly, they will enable regulations to apply provisions in Sections 36 and 37 of the Criminal Justice and Public Order Act 1994 which relate to drawing inferences from a suspect’s failure to account for certain matters, such as their presence at a particular place. Thirdly, they create an offence of obstructing a food crime officer in the execution of functions conferred on them by regulations made under new Section 114C of PACE. Finally, they amend the Police Reform Act 2002 to bring food crime officers within the remit of the Independent Office for Police Conduct. Before exercising the various regulation-making powers provided for in these amendments, the Food Standards Agency will consult interested parties to ensure that we get the detail right and confer on food crime officers only those powers which are necessary and appropriate to their role. I trust these amendments will be welcomed by the noble Lord, Lord Rooker, and indeed the whole House.

I turn now to Amendment 72C, on which I will be as brief as possible because we have rightly dedicated much discussion to this topic and, as I have said before, the Government are pursuing a very broad programme dedicated to tackling violence against women and girls. Your Lordships will have seen that the Commons has spoken and, in doing so, has rejected the Lords amendment by a substantial margin and endorsed an amendment in lieu which firmly commits the Government to responding to the Law Commission’s recommendations related to adding sex or gender to hate crime laws. As I said in our last debate, the Government will also consult on whether to pursue a new public sexual harassment offence before the Summer Recess. Notwithstanding that, this House has signalled that it would like to see quicker progress, particularly on the matter of police recording. If noble Lords permit me, I will address this issue in further debates and in doing so, I hope I can provide reassurance that the Government are listening.

I want to reaffirm that the Government are pursuing the recording of hostility to sex, and that we take the commitment I made to do so during the debates on the Domestic Abuse Bill very seriously. I do intend to see that this work is accelerated, and that remains the case. I also expressed my regret in the last debate that we have not secured the pace of change that was rightly expected on this issue. The recording of sex hostility has proven—with the benefit of hindsight—more complex than parallel experiences we have undertaken with the recording of statutory hate crimes. For the sake of transparency, it is important that the Government are honest when things have taken longer than we might have expected or hoped, even if, as in this case, they are still moving in the right direction.

It would also be beneficial for the House if I outlined some of the challenges we have encountered, so as to assure noble Lords that the issues we are experiencing are technical but perfectly capable of resolution. The Government’s starting point is that we want to get the recording processes right and to do so in a way that delivers useful data. One of the principal quandaries we have been working through to this end is the blurred boundaries between this new recording category and other categories of hate crime. This manifests in contested—or, at the very least, widely confused—interpretations of sex and gender. I am sure that all noble Lords will be mindful of that. As such, this is an issue that crops up frequently in the very debates we have been having in this place. I hope that noble Lords can understand the importance attached to precision and clarity here. We do benefit from a statutory definition of sex, but, given the unique complexities, there is a risk that forces will have their own individual sense of what these terms mean. Therefore, we need to ensure consistency across the board.

We also need to acknowledge that the police already record hostility on the grounds of transgender identity, which means that there are issues to resolve as to the boundaries between different recording categories that do not apply to quite the same degree when recording most hate crimes. In many cases, the difference will be clear, but not always. The closest equivalent puzzle is regarding race and religion, where recording the actual characteristics of the victim—or, indeed, an interpretation of the often confused utterances of the offender—will produce very different answers as to the prevalence of certain hostility in society.

The matters are, of course, not insurmountable. We have resolved them in the past: where there is a conflict between two principles, such as whether a victim’s race or religion was targeted, we have successfully developed a working rule. In the case of race and religion, we tend to stress not what the actual characteristic of the victim is, but what the best available judgment suggests regarding the intent behind what the offender said or did. This will not always prove satisfactory to the victim, but it aims to paint a clearer, if imperfect, picture of the true levels of hostility that might exist in communities. When embarking on these new exercises, there is always a danger that we become bound up in striving for a degree of spurious rigour on data, whereas a common-sense judgment might point to the likely animus at the heart of the offender’s own, often muddled, beliefs. None the less, in this case we did wish briefly to pause and resolve these questions before embarking on a process which might result in less useful insights.

I hope that this provides a broad illustration of some of the difficulties we have encountered, and that it helps to illustrate the Government’s position on why legislation is immaterial to fixing them, particularly as we already have the legal powers we need. Whatever remaining questions we need to answer, I am confident that we will have resolved them in the next few months or, hopefully, sooner. I will certainly ensure that there is a renewed impetus in doing so.

--- Later in debate ---

[Viscount Stansgate (Lab)]

My Lords, I know the House is anxious to move to a vote, although I am here to support my noble friend’s Amendment C1. He used great humour to serious effect, but when I think of how this debate will be viewed when we look back on it, I think the point raised by the noble Lord, Lord Cormack, will be at the very heart of what we are discussing. Yes, there is the incident case of the legislation, but it is the nature of the relationship between this House and the other place that is at the heart of what we are here to do. I much admired the comments of the noble Lord, Lord Deben, and others who have raised this.

If the noble Lord, Lord Cormack, and I were playing ping-pong, there is, as far as I know, no constitutional limit to the number of times we can bat backwards and forwards, as the noble Baroness just mentioned. The noble Lord says we should call a halt after two attempts, but I think there is a different way of looking at it and we should send this back again. There is time. I do agree with the comments made by people with great experience of both Houses that the amount of time the House of Commons devotes seriously to legislation is—I will not say a disgrace—very little. In many cases, many Members I know who go through the Division Lobbies to overturn amendments we have made in this House could not tell you what they are about. They really could not. So, there are good reasons for taking this question on noise seriously and asking the House of Commons to think yet again.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I thought I would start by talking about time on debates. This House does spend time on debate. We have gone on until 2 am, 3 am and, once, 4 am in debate. We do not curtail it.

The Government have given way on this Bill in a number of ways. I am very glad my noble friend Lord Cashman—he is my noble friend—is in the Chamber because one thing we have worked on over far too many years is the disregards for historical offences by LGBT people that are no longer offences today. I am incredibly proud that we have secured that through this Bill. To go back to the point from my noble friend Lord Deben about the Secretary of State saying which things they want to get through, I am not going to try to thwart the will of the Home Secretary; I approached her personally on this matter. She had no hesitation in giving way and helping us promote that through this House. I am very glad it has gone through already. We have short memories sometimes; we forget what has gone through on Report. Just this morning we conceded on the PACE powers, and what we are down to is the sticking point on two matters—powers that are vested in the police, not the Home Secretary.

I am pleased that Amendments 58C to 58E have found favour with the noble Lords, Lord Rooker and Lord Coaker, and I am very grateful to the noble Lord, Lord Russell, for his very constructive approach to the issue of the police recording offences aggravated by sex or gender. I do think, through this Bill—not legislatively but through a practical solution—that we have a good way forward. We can all agree the outcome we want to see, which is the collection of data that is usable, useful and consistent. I have outlined that it is not straightforward. I also acknowledge the detailed questions he sent to us yesterday afternoon. I am afraid that, in the short time available, we have not had the chance to consider them, but we will do so and provide him with answers as soon as possible and keep the House updated.

The two outstanding public order measures have been subject to extensive debate and scrutiny in this House and the other place for close to 13 months. The noble Lord, Lord Coaker, asked whether removing “serious unease” risks watering down the threshold, as the qualifier “serious” will no longer apply to alarm or distress triggers. That is not the case: the adjective “serious” can be applied only to the unease trigger, not to the alarm or distress triggers. He seeks to caricature these provisions with his point about double-glazing. The House found him very amusing, but it is not a double-glazing test. The Bill provides that, in determining whether the level of noise may have a significant impact on persons in the vicinity of a protest, the police must have regard to, among other things, the likely intensity of the impact.

The factsheet we have published to aid understanding of these provisions is not guidance for the police. A noisy protest outside a building with double glazing will have less of an impact on the occupants of that building than if there is no double glazing. That is a statement of the obvious but is a matter of judgment for the police on a case-by-case basis. The tests to be applied are clearly set out in the Bill and the police are well versed in applying similar tests in other contexts. The elected House has now reconsidered the amendments on public order a second time and has insisted on its disagreement with the relevant Lords amendments, but in the spirit of compromise it has put forward a constructive amendment to address concerns about the drafting of these provisions. I urge the House to accept this amendment.

I assure my noble friend Lord Cormack that in the normal way, this Bill will be subject to post-legislative scrutiny three to five years after Royal Assent. On the issue raised by the noble Baroness, Lady Fox, the Bill also increases the maximum penalty for obstructing the highway. To answer my noble friend Lord Deben, we have honoured the deal. The Government have listened in so many ways on this Bill, as I have illustrated with a couple of examples, but part of this deal is that ultimately, the views of the elected House should have primacy. I say to the noble Baroness, Lady Wheatcroft, that, as I said earlier, the powers are vested not in the Home Secretary but in the police.

I note that the noble Lord, Lord Paddick, has also put forward his own compromise Amendment, 80J, which would enable the police to set conditions prescribing the start and end times of an assembly, as proposed by the Joint Committee on Human Rights. In our response to the JCHR report, we quoted from the HMICFRS report on the policing of protests, which said that

“protests are fluid, and it is not always possible to make this distinction”

between assemblies and processions.

“Some begin as assemblies and become processions, and vice versa. The practical challenges of safely policing a protest are not necessarily greater in the case of processions than in the case of assemblies, so this would not justify making a wider range of conditions available for processions than for assemblies”.


Given the findings of HMICFRS and the evidence provided by the police, we continue to believe that it is necessary and proportionate to ensure that the police have the power to place the same conditions on assemblies that they do on processions, and in addition to specifying the start and end time of—

[Baroness Butler-Sloss (CB)]

I am sorry to interrupt the Minister. What is the point of a factsheet if the police are not to take account of it?

[Baroness Williams of Trafford (Con)]

My Lords, it is intended to be helpful. Going back to something the noble Lord, Lord Blunkett, said at Second Reading, which seems like an age ago now, we must provide clarity to the police. I totally agree with the points he made then.

Given the findings of HMICFRS and the evidence provided by the police, we still think it necessary and proportionate to ensure that the police have the power to place the same conditions on assemblies as they do on processions. In addition to specifying the start and end time of an assembly, as provided for in Amendment 80J, or the place where the assembly may take place and the maximum number of participants, as the 1986 Act currently provides for, it should be left to the operational judgment of the police to apply other necessary conditions—for example, conditions prohibiting the use of lock-on equipment where this could cause serious disruption to the life of the community.

This House has fulfilled its responsibilities as a revising Chamber, and I commend noble Lords for the time they have taken in scrutinising the Bill. It is now time for this Bill to pass.

Motion A agreed.

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 72B and do agree with the Commons in their Amendments 72C and 72D in lieu.

72C: Page 46, line 35, at end insert the following new Clause—
“Response to Law Commission report on hate crime laws
(1) The Secretary of State must, before the end of the period of 12 months beginning with the day on which this Act is passed—
(a) prepare and publish a response to Recommendation 8 of the Law Commission report on hate crime (adding sex or gender as a protected characteristic for the purposes of aggravated offences and enhanced sentencing), and
(b) lay the response before Parliament.
(2) In this section “the Law Commission report on hate crime” means the Law Commission report “Hate Crime Laws” that was published on 7 December 2021.”

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 73, to which the Commons have disagreed for their Reason 73A; do not insist on its disagreement with the Commons in their Amendment 74A to its Amendment 74, on its Amendment 74B to that Amendment in lieu, or on its con- sequential Amendments 74C, 74D, 74E, 74F and 74G; do not insist on its Amendment 87, or on its disagreement with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E and 87F to the words restored to the Bill; and do agree with the Commons in their Amendment 73C to the words restored to the Bill by their disagreement with Lords Amendment 73 and in their Amendment 87H to the words restored by their disagreement with Lords Amendment 87.

73C: Page 47, line 22, leave out “serious unease”

87H: Page 55, line 28, leave out “serious unease”

[Baroness Williams of Trafford (Con)]

I beg to move.

Motion C1 (as an amendment to Motion C)

Moved by

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 80, do not insist on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F to the words restored to the Bill by their disagreement with that Amendment, do not insist on its Amendment 80G instead of the words left out by that Amendment and do agree with the Commons in their Amendment 80H to the words restored to the Bill by their disagreement with Lords Amendment 80.

80H: Page 49, line 1, leave out “serious unease”

[Baroness Williams of Trafford (Con)]

I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by