Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Beith (LD)]

My Lords, there are some valuable things in the Bill but they are dwarfed by things that really should not be in it. Parts of the Bill are dangerous to our civil liberties while other substantial parts add nothing useful to existing law.

I shall concentrate on just four points. To start with, there is the sheer extent of the Bill, which has been referred to. As a former member of the Constitution Committee, I am enthusiastic about its report pointing out that Bills of this size and complexity impede proper legislative scrutiny by Parliament.

Secondly, the Bill makes bad law. Take the deeply objectionable attempt to reduce rights to protest, in apparent defiance of the European Convention on Human Rights. This gives enormous subjective discretion to police officers—who, so far as I am aware, have not asked for that kind of subjective role—and introduces the concept of “unease” in relation to noise, in the wording

“persons of reasonable firmness … may … suffer serious unease”.

I like to think that I am a person of reasonable firmness and indeed I am caused serious unease by loud noise in shops, restaurants and various places, but it does not usually represent a reason why someone else’s civil liberties should be seriously abrogated. In this context, we really have to avoid such badly worded legislation.

Thirdly, I turn to the Delegated Powers Committee, which the noble Lord, Lord Blencathra, has spoken about. The committee says in its report:

“We are surprised and concerned at the large number of inappropriate delegations of power in this Bill.”


There is the accretion of ministerial power to rule by statutory instrument. The Secretary of State will have power by regulation to prescribe what constitutes “serious disruption”, in Clause 55, and will have the Henry VIII power to alter the meaning of “qualified homicide” and to amend this Act accordingly. The extraction of confidential information from telephones is inappropriately left to regulations that, in the view of the committee, should be in the Bill itself and therefore amendable. The committee also pointed out that the Bill will

“allow the imposition of statutory duties via the novel concept of ‘strategy’ documents”

that in some cases may not even be published at all. There are also the usual wide powers of consequential amendment by regulation, which currently seem to be slipped into many Bills as standard.

Then there is the direct and indirect effect of the Bill’s sentencing provisions and the wider sentence-inflation effect that they, and the rhetoric of longer sentences, will produce. The impact assessment reckons that there will be 700 more prisoners, with 300 new prison places immediately required. Paragraph 43 speaks of

“a risk of having offenders spend longer in prison and a larger population may compound overcrowding (if there is not enough prison capacity), while reducing access to rehabilitative resources and increasing instability, self-harm and violence”.

We have seen that happening in prisons, and if we have 700 more prisoners it will get worse.

Measures to bring about longer sentences are wide in their effects because it is not merely about the inclusion of a long sentence for a particular offence; it is all the campaigns that then follow, saying that the sentence for something else is not enough—“That’s all you get for stealing someone’s pet rabbit”, for example—that could happen if the Government go ahead with this suggested amendment. There is a knock-on effect, and it affects the judiciary. There is no escaping the fact that long periods when much is talked about longer sentences have an effect on what judges do in sentence determination.

This move to longer sentences is a major reallocation of resources, unsupported by any evidence that it is the most effective way to keep the public safe either by deterrence or by rehabilitation during custody. These are resources that are desperately needed to fight crime and tackle the problems that lead people into crime in the first place. It really is time that we corrected this trend.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

[Lord Bach (Lab)]

My Lords, of course we want to change attitudes and that is what we must try to do, however long it takes us, but I have to say, from my experience over five years as a police and crime commissioner—I am sorry to keep on about this—this wrong seems to have increased on a fairly enormous scale. That is only anecdotal, but the truth is that many more of those who are about to be arrested seem to think that it is okay to have a go at the police in order not to get arrested. That seems to me to be very unfortunate, and it is going to take a long time before it changes. It puts the police, and obviously other emergency workers, in a nearly impossible position sometimes—and when I talk about the police, I am really referring to other emergency workers as well.

Like the noble Lord, Lord Paddick, I do not want to see higher sentences for the sake of higher sentences, and I do think that their effect is often very limited, but I have to say—it seems odd, coming from these Benches, I suppose—that I have a certain sympathy with the Government here, because it seems to me that the position has to be dealt with immediately in some way, and one of the purposes of raising the maximum sentence available is to try, in the best possible way, to convince the courts that this is a more serious offence than sometimes they think it is. It is not always minor, I am afraid—sometimes it is undercharged—but it is a really serious problem that every emergency worker, and in particular every police officer, faces every time he or she makes an arrest, and I do not blame the Government for wanting to do something about it.

I am not saying it will be very successful; I think it is a much wider societal problem. But I do think it is something the Government are entitled to at least think about in this way. I do not say that with any happiness at all, but to claim that it is not a real problem is just untrue: it is a real, everyday problem.

[Lord Beith (LD)]

My Lords, I entirely accept that this is a real problem, but real problems require real solutions that have some chance of being effective. I cannot imagine anyone who commits an assault on a police officer or emergency worker actually knowing what the maximum sentence is for that offence—still less that the Government are currently increasing it. That information might just get through to the newspapers for a week or two, but there is no measurable deterrent effect from something that people do not know much about anyway. Most people must realise that if they get caught assaulting an emergency worker they will get into some kind of trouble, but whatever impels these dreadful assaults is clearly not likely to be affected by what is happening here.

What happens when you increase the maximum sentence? If you achieve generally longer sentences, you have made a commitment of resources. The question has reasonably to be asked: is this the best way of spending money to try to stop emergency workers being attacked? We must therefore look at any other measures that you can reasonably take that would have that effect, if, as I contend, there is no evidence that increasing the maximum sentence will lead to any reduction in attacks on emergency workers or police officers.

This is just one of many examples, and there are others that we will perhaps debate more fully later in the Bill, where the Government rush to have something to say—lengthening the maximum sentence certainly looks like having something to say—but it does not have the effect in the real world that we all desire.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am a bit too squeamish to discuss Amendment 9 but I wanted to reflect on Amendments 10 and 11 and to follow on from some of the comments just made about the deterrence factor and expanding how long people are threatened with jail for.

I thought the Bar Council raised some very useful challenges for us to consider in relation to the section of the Bill dealing with assaults on emergency workers. The Bar Council asks us to consider if increasing the maximum penalty for such assaults is necessary or commensurate or whether it will work. It notes the limited evidence. I thought when I was listening to the noble Lord, Lord Paddick, who I was very compellingly convinced by, that it can feel a bit like virtue signalling rather than tackling the problem.

I was particularly interested in a slightly different point from the one that has been made and was struck by what the Bar Council said in relation to, I think, these amendments: there is a danger of creating a disparity between the penalties for attacks on emergency workers and those on other workers, and indeed a disparity between attacks on emergency workers and those on members of the public. There is an offence of common assault that should be considered a serious offence whoever is on the receiving end of it. Whoever is attacked, I would want the law to deal with it.

We heard from the right reverend Prelate how, if you start saying that an attack on this particular group of workers has to have a particular length of sentence, that might make other groups of workers—in this instance, in prisons—feel as though they are being neglected or somehow are not as important. We therefore have to be nervous about differentiating between categories of workers because that might end up being divisive, implying that front-line workers in some jobs are more important than others.

As a former teacher who has worked in the education sector—I worked with some challenging young people and was on the receiving end of some common assault, let us put it that way—I have been following closely the case of Professor Kathleen Stock, a feminist philosophy academic at Sussex University, whom the police have advised should not return to her place of work on campus because of the danger of violence from some self-styled anti-TERF activists. There have been all sorts of threats and harassment. They even have a special phone number for her to ring. There are other teachers who face this.

I raise that because when it comes to this kind of threat, that kind of potential violence and those kinds of assaults, it does not matter if you are a front-line worker. I do not know why the “emergency” bit should give you an extra penalty. I am not advocating for a special penalty for attacks on education workers. I just do not want people on the front line to feel that some are more important than others.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - part two & Committee stage
Wednesday 20th October 2021 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that intervention. I think I gave some other examples, though, of things that do not necessarily qualify as police pursuit but are still none the less covered by this: emergency response, armed vehicle interventions and so on. I thought those would cover most of the noble Lord’s points. I take his point, obviously, that if you are under surveillance, you do not necessarily know that anybody is there—that is the whole point. At some point, that could turn into a pursuit; I suppose it depends on the specific circumstances. But I do take his point.

[Lord Beith (LD)]

My Lords, could I ask the Minister if I heard him correctly? I think that, in the early part of the remarks he read out, he used the phrase “pursuit or emergency.” That appeared to me to be quite a helpful definition of what we are talking about here, and excluded things that were neither “pursuit” nor “emergency”. Could that wording not be what the clauses should be based on, and was it not helpful of him to use it in the early part of what he said?

[Baroness Randerson (LD)]

I think I—

[Lord Beith (LD)]

He might be going to answer that.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

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

[Lord Blencathra (Con)]

My Lords, as chair of the Delegated Powers and Regulatory Reform Committee, I support Amendments 33 and 41 in my name. I intend to speak only once on the whole Bill, unless the spirit moves me via my noble friend the Minister’s reply. She will know that there were quite a few recommendations in the Delegated Powers Committee report, but I have put down just these two amendments.

If the Committee will permit, I will take the first minute to run through the more general criticism we made of the delegated powers in the Bill. I will not return to this subject again. In our response to the memorandum, we said:

“We are surprised and concerned at the large number of inappropriate delegations of power in this Bill … We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and … allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published.”


That is the subject of the amendments before us today, and that is what I shall major on.

We concluded our general introduction by saying:

“We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”


That is fairly scathing condemnation, and it is a bit unfair on noble Lords in this Committee and from the Home Office, because they had nothing to do with drafting these provisions.

We all know how it happens. The Bill has come from another place; Ministers who have served in the Home Office and other departments will honestly admit this. I dealt with about 20 Bills when I was in the Home Office. The Bill team and civil servants would come in and say, “Here’s the Bill, Minister”, and we would look at the general politics of it. Then they would say, “Oh, by the way, there are some delegated powers there. When you’re ready to come back again to tweak it, we can deal with it”. We all said, “Yes, jolly good; carry on”, but never paid any attention to them. I am certain that the Bill team in the Commons—the civil servants drafting the Bill—did not, and nor did the Commons Ministers. It came here and this bunch of Lordships have got a bit upset, and I suspect others will too.

I say to my noble friend the Minister to go back, as other Lords Ministers have to do, and explain to Ministers in the Commons and the Bill team—the Bill team thinks it is sacrosanct; it has drafted it and does not like people mucking around with it—that that bunch up the Corridor will want some concessions. My political antennae tell me that on Report there may be a few amendments made by noble Lords on all sides—amendments I might not approve of at all—but if we want to get somewhere, the Commons should make concessions on this, because they are really sensible.

Before I comment on the two amendments, I will give one example. We criticise the provisions on serious disruption; I think the noble and learned Lord, Lord Judge, wishes to remove them from the Bill. We say in our report that the Government have been able to draft a half-page statutory instrument describing serious disruption. If the Government can draft it there, stick it in the Bill, for goodness’ sake, and then it can be amended later.

That is enough general criticism. I apologise to my noble friend as she has to take it all the time, but other departments have been infinitely worse in some of their inappropriate delegations. The Home Office is not the worst offender.

Clauses 7(9) and 8(9)

“make provision for or in connection with the publication and dissemination of a strategy”

to reduce serious violence. Clauses 7 and 8 allow collaboration between authorities and a local government area

“to prevent and reduce serious violence”,

including to

“prepare and implement a strategy for exercising their functions”—

all good stuff.

Under Clauses 7 and 8, a strategy

“may specify an action to be carried out by … an educational authority … a prison authority … or … a youth custody authority”,

and such authorities are under a duty to carry out the specified actions. However, there is no requirement for such a strategy to be published; instead, the Secretary of State has the power, exercisable by regulations subject to the negative procedure, to

“make provision for or in connection with the publication and dissemination of a strategy”.

This power would appear to allow the Secretary of State to provide that a strategy need not be published if she so wished, or even to decide not to make a provision about publication at all. That does not make sense to us. My committee is

“concerned that the absence of a requirement to publish means that a strategy can have legislative effect—by placing educational authorities, prison authorities and youth custody authorities under a statutory duty to do things specified in it—but without appropriate transparency.”

We therefore recommend

“that the delegated powers in clauses 7(9) and 8(9) should be amended”—

that is, tweaked a wee bit—

“to require the publication of any action which is specified in a ‘strategy’ as one that an educational authority, a prison authority or a youth custody authority must carry out.”

That is a minor tweak—actually, so are many of the other things we recommend. We may be scathing in the report, but we are not asking that fundamental bits of the Bill be deleted or rewritten completely; we are merely asking for more transparency. Putting more things on the face of the Bill will save the Government rather a lot of grief in this House later on.

[Lord Beith (LD)]

My Lords, my name is on the amendment, following that of the chairman of the Delegated Powers and Regulatory Reform Committee. I commend the committee’s work in general, with more general comments on this Bill and the two amendments to which it has given rise in this particular case.

I am not persuaded of the merits of having a statutory structure for local co-operation strategies. I am strongly in favour of local co-operation; it should be happening everywhere to deal with serious violence and many other problems in the system. Where that is done and works well—as it has done in youth justice, to some extent—it demonstrates its value pretty quickly.

However, this is a statutory scheme; because of that, statutory obligations are created and there must be accountability for them. I am in a charitable mood so I will suggest that, if not exactly careless drafting, this did not anticipate the question, “What if no provision is made for publication of the strategy?” That is what the two amendments deal with. Perhaps the Government are undiminished in their intention that the strategies will be published and will therefore be accountable to the communities in which they are deployed but, as the Bill stands, it is weak on that point and it would be much better to make it clearer.

This is not by any means the worst delegated power issue to arise in the Bill—I am intrigued that the Home Office got off lightly tonight, with the chairman of the DPRRC calling it not the worst department. However, in this particular case, it needs to be made much clearer that, if statutory obligations are created and strategies have the force of statute, they must be published and must be accountable to the communities in which they operate.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

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

[Baroness Williams of Trafford (Con)]

My Lords, we expect that the duty will provide the right legal basis for improved multiagency working and draw in the correct set of partners to prevent and reduce serious violence effectively. We think it is right, however, to ensure that there are means of securing compliance should a specified authority refuse to play their part—in other words, in adherence of the duty. So we have included provision within Clause 17 for the Secretary of State to issue a direction to secure compliance, should a specific authority, educational institution, prison or youth custody authority fail to meet the requirements of the duty. For publicly managed probation service providers, prisons, young offender institutions, secure training centres or secure colleges, existing mechanisms can be utilised through the relevant Secretary of State to ensure compliance with the duty.

As a result of the amendment to this clause just agreed by the Committee, the Secretary of State must now obtain the consent of the Welsh Ministers before issuing a direction to a devolved Welsh authority, as the noble Lord, Lord Ponsonby, said.

I now take the opportunity to address concerns that were raised previously by the noble Lord, Lord Paddick —it was only on Monday night, but it seems quite a long time ago. Let me be clear: a direction can be issued only to certain specified or relevant authorities and not to individual front-line professionals or practitioners. In addition, directions can be issued only in respect of certain duties, as listed in Clause 17(1). On information sharing, no directions can be issued in relation to the exercise of the powers in Clause 15 or any regulations made under Clause 9, which enable but do not mandate information sharing. I hope that answers the question from the noble Lord, Lord Paddick.

Directions can be made by the Secretary of State in relation to a failure to discharge the mandatory duty in Clause 16 to share information with a local policing body. As I have said previously, the purpose of Clause 16 is to enable the local policing body—that is, the PCC and their equivalents—to request information in order to assist the specified authorities and monitor the effectiveness of local strategies. To reiterate—this may assist the noble Baroness, Lady Chakrabarti—this power would not enable the Secretary of State to directly compel an individual doctor, teacher or social worker to disclose personal information. Additionally, any direction given to an authority cannot require a disclosure which would be in breach of the data protection legislation. If an authority refused to comply with the direction due to concerns that doing so would breach the data protection legislation, the Secretary of State could apply for a mandatory order and the court would then determine the question. I hope that this clarification is helpful.

I assure the Committee that, in any case, we expect these powers to be seldom used and utilised only where all other means of securing compliance have been exhausted. I am sure noble Lords would agree that, in order for this duty to be effective, a system needs to be in place to ensure that authorities comply with the legal regulations we are proposing to help prevent and reduce serious violence.

A direction by the Secretary of State may require the authority in question to undertake specific actions in order to comply under the duty, and directions may be enforced by a mandatory order granted on application to the Administrative Court in England and Wales. Further detail on this process will be set out in statutory guidance, which will be subject to a public consultation following Royal Assent. I commend Clause 17 to the Committee.

[Lord Beith (LD)]

Can the Minister explain subsection (5), which sets out that

“the governor of a prison, young offender institution or secure training centre”

is not covered by these provisions?

[Baroness Williams of Trafford (Con)]

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

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, in moving Amendment 75 I will speak also to Amendments 76 and 77 in this group, all in my name. We now come to offensive weapons homicide reviews and there are two points I will make initially. The first is to point to the evidence that the provisions on this in the Bill were probably, quite rightly and properly, about knife crime. Chapter 2 is about offensive weapons homicide reviews and, predominantly if not almost exclusively, homicides involving offensive weapons are knife crime offences.

Secondly, as with Chapter 1, the primary motive of the Government is to produce the illusion of doing something when the changes in the Bill have little practical beneficial effect. As we argued in Chapter 1, the Government’s approach potentially does more harm than good. Amendment 75 is a probing amendment to ask the Government why, just as Chapter 1 should have strengthened existing crime and disorder partnerships, this chapter should not strengthen the already considerable and comprehensive powers of coroners, if this were necessary, rather than creating a new and separate legal duty to conduct offensive weapons reviews—other than the obvious explanation that the Government could point to it and say they had done something about knife crime.

For every death where the cause of death is still unknown, where the person might have died a violent or unnatural death or might have died in prison or police custody, a coroner must hold an inquest. Clearly every qualifying homicide, as identified by Clause 23, and every potential qualifying homicide, even if the Secretary of State changed the definition by regulations, as subsection (7) allows, would be subject to a coroner’s inquest. Paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009 provides coroners with a duty to make reports to a person, organisation, local authority, or government department or agency, where the coroner believes that action should be taken to prevent future deaths. All reports, formerly known as rule 43 reports, and responses must be sent to the Chief Coroner. In most cases, the Chief Coroner will publish the reports and responses on the Courts and Tribunals Judiciary website. Coroners are very powerful members of the judiciary. Attendance at a coroner’s court takes precedence over an appearance at any other court, if a witness is required to attend more than one court at one time, for example.

Can the Minister tell the Committee what consultation took place with coroners before this chapter was drafted? What was their response? What additional benefit would an offensive weapons homicide review have over a coroner’s report? If benefits were identified, what consideration was given to the coroner, rather than a review partner, being given the power to order a homicide review? Can the Minister also explain what happens if one of the review partners considers that none of the conditions in Clause 23(1) is satisfied, but another review partner considers that the conditions are met? Does the review take place despite the review partner’s objection, and, if it does, does the review partner that objected have to participate if it does not believe the conditions are met? Is there a hierarchy of review partners? So, if the police believe the conditions are met, must the review go ahead? And if a clinical commissioning group believes that a review should go ahead, but the police do not believe the conditions are met, does the review take place and do the police have to participate?

The Government may say that all this will be set out in regulations, but the existing provisions in the Bill are a shell of an idea, where this Committee is left to guess what actually happens in practice; what a qualifying homicide is, because that can be changed by regulation; who the review partners will be, because that will be set out in regulations; and what happens if there is disagreement among review partners about whether the conditions are met.

We already have child death reviews, domestic homicide reviews—on which more in a subsequent group—safeguarding adult reviews, and, now, offensive weapons homicide reviews. With the Bill as drafted, how many of the sadly too many knife crime deaths a year will be subject to a review? According to the Bill, factors that decide whether a review is necessary may include, for example, the circumstances surrounding the death, the circumstances or the history of the person who died, or the circumstances or history of other persons with a connection with the death, or any other condition the Secretary of State sets out in regulations. How many reviews do the Government believe will have to be conducted each year by our overstretched police, local authority and health services? I ask the Minister to not give the answer: “It depends what conditions are contained in the regulations”.

Amendment 76 is intended to ensure, as with the serious violence duty, that professionals, including doctors and counsellors, are not forced to disclose sensitive personal information that is subject to a duty of confidentiality, unless, in exceptional circumstances, it is in the public interest to do so, and in accordance with existing policies and practices, although I accept that these may be less stringent in the case of information regarding the deceased.

As before, Clause 31 says that review partners must have regard to guidance issued by the Secretary of State, but there is no mention of parliamentary scrutiny of such guidance. My Amendment 77 requires the guidance to be laid before Parliament to ensure parliamentary scrutiny. I beg to move Amendment 75.

[Lord Beith (LD)]

My Lords, I am glad to support my noble friend in questioning whether the processes outlined in this clause should be altered so that they protect the procedures that we already have and have had for a thousand years, to use the system of coroners to investigate unexplained deaths of a wide variety of types. Instead, we have the offensive weapons homicide review added to the system. It is unclear how this will relate to the coroner’s duties in a situation where such a death has occurred, because the coroner’s duties do not disappear because we have legislated this system into existence. I hope the Minister will clarify this point.

There was a time when the Government might have felt that the system of coroners was not quite up to the job in some areas. We had problems over the years with inconsistencies in standards of coroner, but considerable attention has been given to that in recent years and I think the system now has much more consistency about it. We are not subject to some of the problems of particular localities which existed in the past. The creation of a Chief Coroner, although in a more limited way than originally envisaged, I think has helped in that process.

It seems to me that the Government are not saying that the coroner system cannot handle this, they are simply legislating for an additional mechanism, because that seems to be a good, visible response to a problem that we all acknowledge is a serious one. But serious problems are not solved by creating more structures and processes, particularly in the circumstance where what is a qualified homicide appears to be so uncertain that the Government have to keep to themselves powers to change the meaning of qualified homicide while the legislation remains in force.

I am very unpersuaded about this system and certainly would like to know what coroners are supposed to do when they find themselves presented with the likelihood of such an inquiry taking place and may have their own duties in respect of the death that has taken place.

--- Later in debate ---

[Lord Beith (LD)]

It is important that we get this matter clear. If the coroner has begun an inquest, does that inquest fall within the limitation that the Minister has described, which would preclude a homicide review being started while that inquest is going on?

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that intervention. As I understand it, yes it does. I expect I will be corrected by my officials later.

--- Later in debate ---

In conclusion, I am happy to consider Amendment 77 further, but I hope that I have persuaded the noble Lord that Amendments 75 and 76 are unnecessary and that, accordingly, he is content to withdraw Amendment 75.

[Lord Beith (LD)]

Before my noble friend does that, can the Minister clear up a mystery? I remain mystified. A person has been stabbed, but no charge has been laid against anyone because the police have not yet identified who might have carried out the stabbing. The coroner opens and adjourns an inquest in those circumstances. What happens then? Is the coroner told that he must close down this inquest? Does the coroner continue to co-operate with the police in the normal way, as they bring to him the information that they have gradually obtained about how this death might have taken place? In passing, I should say that it would be wrong to give the impression that coroners do not, as a matter of course, draw lessons from public bodies and others which arise from any death that they report on.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord. I thought that I had made it clear, and I apologise for obviously not having done so, but no, OWHRs are not precluded by a coroner’s inquest.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

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

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak briefly on my own behalf and that of my noble friend Lady Jones of Moulsecoomb, who is unable to be with us this evening. My noble friend attached her name to Amendments 79, 89 and 107. The noble Lord, Lord Rosser, has given us a very clear and complete explanation, so I just want to reflect on the average age of noble Lords, as we sometimes do. We really have to work quite hard to understand the way in which people’s lives are entirely contained in their phones, particularly younger people, and what an invasion it is to have that taken away.

The noble Lord, Lord Rosser, referred in particular to Amendment 107 and the situation of immigration officers. I have heard a number of accounts of what has been happening to people arriving, particularly from Calais and surrounding areas, on boats in the most difficult and fearful situations. For people who wish to contact family and friends to say they are safe or wish to make some kind of plan for the future, to lose their phone in those situations or have it taken away is very difficult.

We have not had an introduction to Amendment 103, tabled by the noble Lord, Lord Beith, to which I have attached my name. We have had expressions of concern from the Delegated Powers and Regulatory Reform Committee, and we really would like to hear from the Minister the justification for that. By oversight, I failed to attach my name to Amendment 104. As a former newspaper editor, I think we really need to get a very clear explanation of how confidential journalistic material could be covered under these circumstances. We have grave concerns about freedom and the rule of law in our society, and this is a particularly disturbing clause.

[Lord Beith (LD)]

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

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

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

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

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

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

[Baroness Chakrabarti (Lab)]

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

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

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

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

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

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

Perhaps I should have said “alleged victim”; that goes to my noble friend’s point. Each case is different, but usually the remedy is through the court process and it is established where the perversion of justice might be taking place. But I thank my noble friend for his point about the alleged victim.

[Lord Beith (LD)]

I hope I am right, but surely there is nothing in the provisions being carried through now that would in any way relieve the prosecution of the obligation to disclose to the defence any material that came from this process and was potentially of assistance to the defence.

[Baroness Williams of Trafford (Con)]

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

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Monday 1st November 2021 Lords Chamber

Moved by

[Lord Beith]

111: Clause 45, page 37, line 39, after “sport” insert “, dance, drama, music”
Member’s explanatory statement
This is a probing amendment to explore whether there is a potential gap in the law related to other teaching or supervisory positions of trust.

[Lord Beith (LD)]

My Lords, in moving Amendment 111 I will speak to the related Amendment 112. Here, we are being asked to amend the Sexual Offences Act 2003 to import some definitions into it. This presents some problems, to my way of thinking. We are dealing with “Positions of trust” and people who abuse those positions, using them to abuse, exploit or manipulate young people to consent to sex. The clauses before us in this Bill refer to someone who

“coaches, teaches, trains, supervises … on a regular basis, in a sport or a religion”.

That immediately prompts the question: why are other activities involving coaching or training on a close one-to-one basis not listed in the way that sport and religion are?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

With great respect, the point put to me by the noble Lord, Lord Paddick, shows that if we draw this too widely, we are limiting the ability of a 16 or 17 year-old to have a sexual relationship with that person. This the balance that we want to strike. At the moment, there is nothing to prevent a 17 year-old having a consensual relationship with a person with whom they have a tuition relationship or other kind of relationship. The question is: where do you draw the line? We say the line should be drawn at sport and religion. If you draw it too widely, you impact on that person’s ability to have a sexual relationship with other adults.

[Lord Beith (LD)]

My Lords, I start by answering one of the Minister’s questions: what would constitute evidence? The answer is: the same kind of evidence that was sufficiently persuasive for the Government to include sport and religion in this definition. I would expect it to be on exactly that level, bearing in mind the context, the professional relationship and how it operated.

I start where I agree with the Minister. We are not seeking to change the age of consent in this legislation; it would be the wrong place to attempt such a thing, even if there were strong arguments for doing so. What should determine the position that the law provides in this area should not be the selection of certain sports because there appears to be more or less numerical evidence of abuse; nor should it be an attempt to import some new age of consent; it should be on the same basis, whichever area of activity we are talking about.

The Minister said something very interesting which will cause us to reflect between now and Report. He said that, in the Government’s view, dance—or ballet, at any rate—is included. There is a compelling argument for that, which is one of the reasons I was inspired to put down this amendment in the first place. This is a very physical activity during which people who are themselves very skilled at it have to explain—and sometimes demonstrate or assist those they are teaching—some quite extraordinarily physical things. That is done by hundreds and thousands of ballet teachers, and has been for many years, with total propriety, but it is a context in which abuse can occur. In that respect, as the Minister obviously realised, it resembles the kind of definition he brought to bear for sport.

I agree also that there is a balance between, on the one hand, defining a position of responsibility and placing responsibilities and limitations on someone who has such a position, and, on the other, interfering with the rights of 16 and 17 year-olds who have reached the age of consent. My noble friend Lord Paddick highlighted the difficulties in achieving that balance when he pointed out that we would hardly welcome a situation in which it was generally accepted as okay for someone in that kind of professional relationship to continue a sexual relationship when attention was drawn to it. We would mostly expect the professional person to believe that they had to end the relationship, even if it were entirely consensual.

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Monday 8th November 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.

[Lord Beith (LD)]

My Lords, there have been some powerful contributions to this debate. I agree with the comments that the noble and learned Lord, Lord Hope, and my noble friends have made.

It is perhaps necessary that we should say in the debate that there are members of the public whose families have been drastically affected by serious injury resulting from careless driving who feel that there should be a stronger penalty, and that the particular circumstances in the accident with which they are familiar justify a stronger penalty. This is the simple point I want to make: the territory that we enter here is of believing that prison is the only way that society can say, “We are not going to put up with this. This is very bad. Drivers should drive better, and people should be aware of the dangers that they engage in if their concentration lapses.” Prison is probably one of the least effective ways of dealing with the individuals that we are talking about.

As my noble friend Lady Randerson pointed out, the effects of these accidents—or rather incidents, following the noble Baroness, Lady Jones—which result in serious injury are devastating for all those involved. However, the Government need to resist the constant temptation to believe that spending a lot of money on sending people to a place that will not improve their driving—or indeed anything—but is likely to lead to despair and reduce their ability to contribute to society in years to come is a sensible course of action. They should recognise that this is a misuse of the expensive, although important, resource of custody.

[Lord Berkeley (Lab)]

My Lords, can I just ask the noble Lord, Lord Thomas, why he thinks that an offence in the transport sector might be different from the Health and Safety at Work etc. Act? Is it because transport is a middle-class crime and health and safety is not, on the whole, or is there something different?

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Wednesday 10th November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

It was a privilege to add my name to this amendment, which has been so ably moved by the right reverend Prelate the Bishop of Durham, speaking the words of the right reverend Prelate the Bishop of Gloucester. I associate myself with everything that has been said and particularly with the work being done by Revolving Doors and the Centre for Justice Innovation.

This particular amendment raises a problem with this part of the Bill. One can understand why putting in a condition or requirement in relation to the victims might appeal to a certain type of politician, but they forget that, if you are legislating, you need balance. Why put something in about victims without putting something in about the whole point of this, which is to try to deal with offending?

The reason that I put my name to this amendment goes to the way that the Bill has been structured. I apologise again for not being in my place last Wednesday. I am extremely grateful to the noble Lord, Lord Paddick, for moving the amendment that I put in. This point raises exactly the same problem: we have a framework Bill. We do not have the draft regulations or, more importantly, the draft code of practice.

I entirely support this reform, but I do not think that many people realise what a critical role cautions play in the operation of the criminal justice system and, as the noble Lord, Lord Paddick, has said in relation to an earlier amendment—I did not rise then because I thought that I could make the point now—the incredibly important constitutional and rule-of-law issues, which I underline. These relate to the relationship between the legislature, and how much detail it should go into on this, and the Executive—because the police are part of the Executive branch of government—and to what extent they should be allowed to punish, which has generally been the province of the courts.

I welcome these reforms because this is an important part of the sentencing regime—and it is part of it, whatever epithet one wishes to apply. But it seems to me that a much better approach to the Bill would be if this was brought together as a whole, so that we could say, “This bit ought to go into the Bill. That is dealt with in regulations. This should be dealt with in the code of practice”. We should have it all before us, so that we can make a sensible decision. I do not understand why this has not been done, but I hope that, before the Bill comes back on Report, we see draft regulations and a draft code of practice. Otherwise, we will all be plagued on Report with this type of really serious concern.

There are many more issues—the noble Lord, Lord Paddick, has raised some of them this morning—such as the point that the Minister made very eloquently this morning about being able to alter levels of fines. Of course, in an age where we are perhaps going to see a lot of inflation, that is important, but why alter the number of hours? The gravity of the sentence with which a particular person should deal ought to be fixed.

Therefore, I hope that the Minister will look at, first, putting this amendment into the Bill and, much more seriously and importantly, at bringing the draft code of practice and the draft regulations, so that we could review the whole thing and do a proper job, as Parliament, consistent with the rule of law.

[Lord Beith (LD)]

My Lords, I am very glad to support the right reverend Prelate and the noble and learned Lord who has just spoken. The right reverend Prelate gave us a very careful analysis of the reasons that such an amendment would improve Clause 88 of the Bill, and the noble and learned Lord, the former Lord Chief Justice, reminded us of the constitutional context and the fact that the way that the Bill is structured, and the sheer complexity of it, are not really very satisfactory, especially when so much related material is not available to us at this stage. I hope that note will be taken of what he said on that latter point.

My feeling was that, as drafted, Clause 88 does not cover the ground properly, and that the inclusion of the requirement in this amendment—that consideration should be given to what provisions can be made for the “offender to desist” from crime in the future—would give the clause a necessary balance; a phrase that the noble and learned Lord used. The clause’s emphasis is very much on finding the victim’s views, which is entirely appropriate but limited in scope.

It is of course relevant to remember that, very often, one of the strongest views that victims have is that no one else should have to suffer what they have and that something should be done to make sure that the person who has done it does not do anything like that again and cause that sort of harm in the future. So these two things are not in opposition to each other: it is a complementary requirement for the clause to include a direct reference to measures to try to make it possible for the individual to desist from crime. There is a wide range of measures, but, in the context of this clause, the right reverend Prelate mentioned drugs and drug treatment. Of course, alcohol is also a very significant factor in many of the sorts of crimes that we are talking about.

This brings back memories of an incident that occurred during my time in the House of Commons, when some teenagers pulled down and stole the union flag from outside my office. They then made the mistake of exhibiting it around the pubs of the town, which led to the police catching them pretty quickly. The sergeant rang me up and said, “I do not really want to issue a formal caution because one of them wants to go into the Army, and that may prevent him doing so. I suggest that they club together, pay for its replacement and all write to you to apologise”. That was the kind of practical policing that, nowadays, is so surrounded by rules and requirements that it is often more difficult to do. But it was the right solution. I had some delightful letters, most of them insisting that their families had always voted for me. But it made a sufficient impact on the individuals—it was just a minor thing—making them less likely to commit crimes in the future. That is the emphasis that we need to add into this clause—an emphasis on trying to ensure that that individual commits no further crimes in the future.

[Lord Framlingham (Con)]

My Lords, I am not as well versed in these matters as many noble Lords are, but, in the interest of clarity, could the Minister explain what a “diversionary caution” is?

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Wednesday 10th November 2021 Lords Chamber

[Lord Wolfson of Tredegar]

I will come in a moment to the word “exceptional” as I think that was the point made by the noble Lord, Lord German. I have been a little diverted on the way, but we will get there.

What the courts will therefore do is to continue to take the child’s welfare needs into consideration. I also point out, of course, that the actual minimum sentence for 16 and 17 year-olds, when given, is shorter than that for over-18s when given: four months as opposed to six months. Applying minimum sentences to 16 and 17 year-olds—the older cohort of under-18s—recognises the increased maturity and development of this age group compared with younger children. Any custodial sentence is given as a last resort, but we believe that for older children who commit these particular offences, it should be mandatory for the court to consider carefully whether a custodial sentence is appropriate.

[Lord Beith (LD)]

I wonder if the Minister could be a little clearer. A moment ago he cited figures for the number of cases under existing law in which, apparently, mandatory sentences are not passed because judges took the circumstances into account. When you couple his description of those figures with the phraseology that he is using now about the merits of the Bill, the impression is very clear that the Government are not happy with the judges citing exceptional circumstances in failing to deliver the kind of sentence that the Bill would impose. Am I right to understand that he is, in fact, critical of the number of exceptions that are made at present and wants fewer of these in future?

[Lord Wolfson of Tredegar (Con)]

I am certainly not critical of any particular sentence passed in any particular case. What I do think the figures show is that we need a test that more clearly balances the minimum sentence on the one hand with the exception on the other. We think the test of exceptional circumstances—I know that the noble Lord, Lord German, is waiting patiently—meets that test.

I turn now to Clause 104 and 105, which both relate to children who have committed murder and will therefore receive the mandatory life sentence of detention at Her Majesty’s pleasure. I hear in this regard the words read to us on behalf of the right reverend Prelate the Bishop of Derby. When giving a life sentence, the judge sets a minimum amount of time that must be spent in custody before the offender may be considered for release by the Parole Board. This is known colloquially as the tariff. Judges use starting points to determine that tariff. They can set a minimum term higher or lower than the starting point by taking into account aggravating or mitigating factors. Currently, there is a 12-year starting point for all children who commit murder.

In this Bill, we are replacing the fixed 12-year starting point for all children—what might be called the mandatory starting point—with a range of starting points that take into account the child’s age at the time of the offence and the seriousness of the murder. The age groups are to reflect the different stages of development that a child goes through and that, although both in law are children, a 10 year-old is very different from a child of 17 years and 10 months. The different levels of murder, if I can put it that way, are based on the more nuanced system used for adults, which takes the seriousness of a murder into consideration. Therefore, the twin factors of age and the seriousness of the murder are then brought together. The higher the age and the more serious the murder, the higher the starting point, and the converse is also the case.

This amendment retains a range of starting points for children based on three age groups, but it does not distinguish between the levels of seriousness of a murder. Because murder can vary in seriousness in the criminal sense, we believe it is right that the starting points should reflect this as well. We do not agree that starting points should only be based on the age of the child; they should also reflect the seriousness of the murder. Moreover, the amendment does not address the gap in starting points between older children and adults. A child of 17 years and 10 months is very close to becoming an adult. The amendment would mean that the same category of murder would have a 12-year starting point for a 17 year-old, but a 30-year starting point for an 18 year-old. However, I underline the same point that I made about minimum sentences. The judiciary will continue to take the individual circumstances of a case into consideration and can give a minimum term higher or lower than any given starting point.

Let me address the review amendments. Children who are sentenced to detention at Her Majesty’s Pleasure are eligible to apply for a review of their minimum term. In this Bill, we are placing the minimum term review process in legislation. It allows children who are aged under 18 when sentenced to detention at Her Majesty’s Pleasure to apply for a minimum term review at the halfway point. We are restricting eligibility for further reviews to be available only to those who still aged under 18 at the time of the further review. By contrast, this amendment would allow those sentenced as an adult to apply for a review at the halfway point and continue to apply every two years. It would also allow adults who were sentenced as children, who have already had one review, to continue to apply for a review every two years. This amendment is neither necessary nor in line with case law. That is because, under the measures in the Bill, children who are sentenced to detention at Her Majesty’s Pleasure will continue to be eligible for a review at the halfway point of their minimum term.

That right has developed through case law. It recognises the unique rights of children and the fact that they develop and mature at a faster rate than adults. The review is an important part of confirming that the minimum term remains appropriate or determining if a reduction should be made. However, they should be eligible for a further review only if they are still a child at the time of that further review. This is because, as the right reverend Prelate the Bishop of Durham said on behalf of the right reverend Prelate the Bishop of Derby, children have the greatest capacity to demonstrate the significant changes to maturity and outlook that the review considers. Therefore, the opportunity for multiple reviews would be available only to younger children at the initial time of offending, as they are more likely to be under the age of 18 at the time of any further review.

Those who commit murder as a child but are sentenced as an adult have already had their age and maturity taken into consideration. Adults who commit murder are not entitled to reviews and so this Bill ensures that all offenders who are an adult at the time of sentencing are treated equally. It is important to remember that we are talking about the most serious offence, that of murder. The minimum term set by the judge takes into consideration a child’s age and maturity at the time of the offence and reflects the seriousness of the offence. That minimum period should therefore be served, except in exceptional circumstances.

That brings me to the question of the definition of exceptional circumstances, and I am grateful to the noble Lord, Lord German, for his patience. “Exceptional circumstances” is a phrase used all over the law and the criminal law. It is a matter that judges are well used to interpreting. It is a phrase in plain English. With the greatest respect to the noble Lord, it does not need, or would benefit from, a gloss from the Dispatch Box. The phrase means what it says on the tin. It is for the individual judge in the individual case, having heard the evidence, to decide whether the exception is made out.

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Monday 15th November 2021 Lords Chamber

[Lord Pannick (CB)]

The noble Lord, Lord Dubs, asked: these amendments are so simple, why waste time debating them? Well, of course, the law already proceeds on the basis that these amendments propose. Section 230 of the Sentencing Code already says that the court must not pass a custodial sentence unless it is of the opinion that the offence was so serious that a fine or community sentence is not sufficient for the offence. Any court that passed a custodial sentence without stating the reasons for doing so would find that the sentence was overturned in the Court of Appeal. Any sentence in court that fails to consider and address the impact of a custodial sentence on a child or unborn child would not be upheld on appeal. So I entirely support these amendments, but I think we should be realistic about the current state of law.

[Lord Beith (LD)]

My Lords, I do not intend to fall into a bit of disagreement with the noble Lord, Lord Pannick, with whom I worked happily in the Constitution Committee, but the present state of the law has not really solved the problem, has it? Very large numbers of very short sentences are given, and the consequence is that prison places are used, costs ensue, and the least effective way of dealing with individuals seems to be the one that is chosen. If there is some way in which we can strengthen the presumption the sentencing guidelines already carry, that would be good. The amendment of the noble Lord, Lord Ponsonby, is a complicated alternative way of doing it, but it does appear that something needs to be done.

The argument often used for short sentences is that courts have a problem in dealing with persistent repeat offenders and persistent repeat breaches of conditions of community sentences. There is a popular myth that if offenders do not respond to other measures, a taste of prison will soon put them right. There is absolutely no evidence to support this principle. Indeed, all the evidence points the other way.

I used to chair the Justice Committee in the House of Commons, and that has had a continuing interest in this problem. Its report in 2018 recommended that the Government introduce a presumption against short prison sentences. The Government welcomed this and said they were exploring options. In a follow-up report, the Justice Committee noted the Government’s stated intentions to move away from short custodial sentences.

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Wednesday 17th November 2021 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak to Amendment 263, to which I was pleased to attach my name. I thank the noble Lord, Lord Coaker, for tabling it and providing a very clear introduction. I welcome the support of the noble Baroness, Lady Neville-Rolfe, for the amendment as well. I should declare, since we are doing lots of declarations, that I am a supporter of the Institute of Customer Service “Service with Respect” campaign, to add to our collection of organisations involved in this process.

We have already covered this in some detail, so I want to add just a couple of points. The noble Lord, Lord Coaker, referred to the fact that legislation is being introduced in Scotland already, and it is important to stress that part of that is an aggravating offence—if people have been trying to enforce the law, for example on the purchase of alcohol, et cetera. That makes the very important point that we are asking retail workers, who are often very low-paid and may not have much in the way of protection, to enforce the law for us, and that needs to be acknowledged in the law.

A lot of this discussion has focused on how difficult things have been during the Covid pandemic, and that is obviously true, but there is a really important figure from the British Retail Consortium in 2019, so it is pre-pandemic. There were 455 incidents a day, up 7% on the previous year, so this is not just some Covid situation that might disappear should the pandemic disappear; this is a long-term trend. A recent survey, also by the British Retail Consortium, of 2,000 workers over 12 months showed that 92% had experienced verbal abuse, 70% had been threatened and 14% had been assaulted. This really has to be described as an epidemic—it is a word we hear a lot, but this is definitely very much the case.

I also stress—here I may depart from the noble Baroness, Lady Neville-Rolfe—that changing the law, which has been called for on all sides of the Committee, does not excuse employers from doing more, particularly large employers who have the resources to provide security. By the nature of my job, I very often travel late at night, having been speaking at a public meeting and catching the train home. I go into chain stores on those occasions and I often see very young workers, sometimes on their own, looking and clearly feeling very exposed and very much in danger. I think that often they do not have adequate security.

There is also a question to be asked, particularly of employers, about ensuring that these workers are paid properly, treated with respect and have decent conditions. That will affect the way the whole of society look at these workers, and, I hope, the way they get treated.

Amendment 263 is important. As has been widely said, there is a huge amount of support for it, but it does not excuse employers from doing much more. I also say that while I understand the impulse behind Amendment 264, I do not think that is the way forward. We know that we have a record prison population—it is something we have debated in other parts of the Bill—and that prison is not working, so just to have the knee-jerk reaction of, “Let’s make the sentences longer”, is not the answer. There has to be a recognition of the fact that these crucial workers need protection through some form of Amendment 263.

[Lord Beith (LD)]

My Lords, I very much agree with noble Lords who have said so much about the retail workers on whom we have depended so greatly and will continue to depend in the future and who face so many instances of assault and attack. The campaigns that this has generated show just how seriously we take this, but I have to ask, particularly in the light of Victoria Atkins’s commitment in the Commons, whether the Government have identified a serious gap in the law, filling which would alter the situation materially for the better, or whether the worst of the problem arises from inadequate police response to incidents. The noble Lord, Lord Coaker, quoted figures for that. Perhaps there is an inadequate police presence in areas where this kind of attack is prevalent, or perhaps the inadequacy comes, in some cases, from the Crown Prosecution Service about cases that should be brought to court.

This kind of attack is affecting retail workers in a number of different situations. Some of it is drug related, with people desperately trying to get money to pay for their drugs and attacking shopworkers when they are found stealing goods from a shop. Some of it is alcohol related and alcohol enforcement related, as the noble Lord, Lord Coaker, and the noble Baroness, Lady Bennett, have pointed out, whereby shop workers have simply been trying to enforce the law. Where I live at the border with Scotland the issue is more complicated because the law is different on either side of the border.

Some of it is even hate crime of which ethnic-minority shop owners have been the victims. That is so awful when one thinks of the incredible contribution that, for example, Ugandan and Kenyan Asians have made in providing retail services at all hours of the day and night in all sorts of communities, including in some of the most difficult areas. Those shop owners deserve our support and protection, but we need to know how best to provide that.

One my concerns about the amendments and the approach taken so far, which is perhaps a tribute to the effective campaigning of retail workers and their organisations and representatives, is that a number of other groups of people who deal with and serve the public are also exposed. My mind turns to the staff of estate agents, for example—the Suzy Lamplugh case is a vivid reminder. It is not clear whether such staff are covered by the retail workers’ provision. They may be, but I am far from certain. I also think of transport staff, housing officers, local authority planning officers and even parking wardens. It is sometimes seen as some kind of joke to laugh at parking wardens and at how angry people get at them. Any kind of harassment or attack on people who are serving the public is no joke at all and requires the attention of government.

As the noble Baroness, Lady Bennett, pointed out, however, that attention is not necessarily best served by simply putting in longer maximum prison sentences, thereby creating sentence inflation and generating far more expenditure on prison, which could perhaps be better spent on policing and community support of various kinds, including activities directed at young people in local communities who are drawn into violence. We need to look at what else we can do in terms of police response, CPS commitment and community support to support the staff who serve us.

If the Government have identified a significant gap in the law, a change to which would help those responsible for enforcement and protection, we would be interested to hear it. However, one way or another, we need to help those who are helping us.

[Baroness Stowell of Beeston (Con)]

My Lords, in some respects similarly to the noble Lord, Lord Beith, I come to this debate with an open mind in terms of the specifics of the amendments put forward by my noble friend Lady Neville-Rolfe and the noble Lord, Lord Coaker. I very much align myself with him and others who have spoken in that I am appalled at the assaults, attacks and abuse of people on the receiving end who work in stores of all kinds.

However, I will be interested to hear what my noble friend the Minister says as regards whether the law currently provides for these kinds of attacks. One of the things that I found extremely concerning in the briefing provided by USDAW and others was the lack of police response when shop workers were on the receiving end of an attack. When they contacted the police, there was little or no reaction. That is really troubling.

The only thing I want to add to what has been said relates to something that the noble Lord, Lord Coaker, touched on. I know that the noble Baroness, Lady Bennett, also referred to the fact that we are asking shop workers in many respects to uphold the law for us. However, there is another aspect to the role of shop workers and shopkeepers that we do not mention often enough and is important. They are community leaders and people in whom we should encourage a sense of authority for themselves. I want people who are doing these jobs to feel that they are holding a position of power. They are responsible for a public place and when they are at work they are in charge. They deserve our respect for that. I see them much more than just as service providers; they are standard setters. In local communities, in particular in local convenience stores, they can make an enormous contribution to the health of a community and the way in which local people feel about themselves.

If the Government are inclined to go down this route of legislating in the way that has been proposed—and even if they are not—I encourage the Minister that there should be some effort in conjunction with legislation to promote the importance of retail workers, not just in the way they provide a service to us but in the way they are leaders of their communities and important to our maintaining the social norms and standards that are crucial to the health of our society as a whole.

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Monday 22nd November 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, some time ago when the Hillsborough matter was before this House, the noble Lord, Lord Rooker, I think, and I put forward a suggestion that the coroner in an inquest should have power to allow a public authority, or an authority with resources, to put forward a defence using lawyers for that purpose, and that a condition of granting such permission should be that the authority is responsible for providing the necessary funding for the relatives of the deceased to be represented. The choice of who they would use, of course, would be for the relatives, but the provision of the necessary money would be a matter for the authority—at the level at which the authority wanted to do it—so that there would be obvious equality of arms.

I think it is a much better solution than legal aid. Needless to say, I have had, some time ago, some experience of dealing with legal aid. I had the authority as Lord Chancellor to grant legal aid in specific cases that I thought required it, but I think it is much better, fairer and less burdensome to the public, that this should be the rule. It seems to me this is quite easy to systematise when you have more than one of these authorities. Hillsborough is a good example of what happened when there was no proper representation for some of the relatives. This is a suggestion that goes along with the spirit of the first amendment the noble and learned Lord has put forward, and I venture to think that it is an effective point of view.

I am glad to see that the noble Lord, I referred to has returned because I think he will probably remember that he and I were pretty well agreed about what should be done. Needless to say, the Home Office said it would be reviewed when the details of Hillsborough, the prosecutions and so on, were finished. Of course, that happened some time ago, but I see no sign of any kind of innovation from the Home Office, until it agrees with this amendment in spirit.

[Lord Beith (LD)]

We have always been able to rely on the noble and learned Lord, Lord Mackay, for ingenuity when difficult problems have to be resolved. This one seems to have got lost in the Home Office somewhere. That is a pity because the problem that these amendments raise is long-running and serious. It is open to discussion, whether the amendments are the best way of dealing it, but I do not think we can go on ignoring it or failing to deal with it in any adequate way.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

May I add a more hopeful note? It has been wonderful to see this Government bring forward Professor Ormerod’s work on the Sentencing Code and bring it on to the statute book, and in this Bill—this is a good point—the code is being amended rather than there being any new proliferation of legislation. So one ought to say thank you for that.

However, the Sentencing Code shows the problem. I do not know how often the Minister looks at it but it is a fiendishly complicated set of sentences that we have accumulated over the years. Although we have seen a lot of criticism of the 2003 Act, I would say in its defence that an awful lot of thought was given to it. It may not have been quite right, and there was one area which has gone badly wrong. As I complimented one side, I now compliment the other: when we looked at the 2012 reforms to sentencing, a huge amount of thought went into that. A lot of sentences that were thought to be apposite were brought forward or modified, but at least there was some thinking.

We have now reached a stage where we need—on, I hope a nonpartisan basis—to think again. Is it too complicated? The answer must be yes. Have we got the sentencing regime right in terms of its outcomes and, equally importantly, its cost and whether the money can be spent better? There can be no better mechanism for that than a royal commission. I would hope that the initial thoughts of those who drafted the manifesto could be taken forward, at least in that respect. I would hope, though maybe I am being optimistic, that when it was all laid out what an awful state our sentencing regime is in, logic would prevail and we would see some reform. However, that is just an expression of hope by a person who is not a politician.

[Lord Beith (LD)]

My Lords, I support the amendment. My support goes back to the time when I served as chairman of the Justice Committee in the House of Commons. I became utterly convinced that the absence of a coherent strategy or policy for the use of custody and other disposals was extremely damaging and distorted the use of resources in the criminal justice system to an amazing extent, leading to unsatisfactory outcomes in reducing reoffending and many other respects.

If I had not been so convinced, even during the passage of this Bill we have seen further examples of an incoherent approach to sentencing. In the course of the Bill, it was announced in the press, but by a Minister, that there would be a mandatory life sentence for the manslaughter of emergency workers. The Daily Mail reports today that that provision will be included in the Bill, although it is not clear to me how that can be accomplished—it is not even in the government amendments tabled for today—but that would be a very significant change.

We are also told that the Government intend to provide for an offence of the theft of a pet animal with a sentence of up to five years’ imprisonment. So you could get up to five years for stealing your neighbour’s cat by putting out a dish of milk and some bread because the cat seems a little underfed because your neighbours do not look after it as well as you think you would. It is absurd that we should get into that situation of sentence inflation—and there will be sentence inflation, as my noble friend referred to, because then you have arguments where legitimate organisations come to us and say, “There should be at least seven years for this offence because you get five years for stealing your neighbour’s cat.” That is how the parliamentary and political side of sentence inflation works. My noble friend has pointed to how it influences the judiciary as well, when minimum sentences cast—I was going to say “a shadow” but, rather, a particular colour of light on decisions about offences that fall short of the maximum sentence.

The reason I think a royal commission would be appropriate—notwithstanding the belief of the noble and learned Lord, Lord Falconer, that no one in government would take any notice of what it said, whoever had appointed it—is that there are different kinds of issue that need to be considered. Some are philosophical issues and issues of principle while others are practical, but they all affect sentencing and all lead to the misuse of custody, either in its extent or, in some cases, in its use at all, when other disposals could be more effective in preventing crime and dealing with offenders.

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[Lord Thomas of Gresford (LD)]

My Lords, I first acknowledge my place in devolution history. For the purposes of the footnote in that history, I should say that the place where I gave my evidence was, as I recall, the Grand Hotel on the front in Llandudno.

The noble and learned Lord asks whether they would listen. That is really the purpose of this amendment: a royal commission is and should be listened to. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, there must be thinking about sentencing—thought must be given to the policy that the Government are pursuing. I listened to the noble and learned Lord, Lord Stewart, and I do not doubt that his Government are pursuing these various courses, policies and whatever he is talking about, but they are failing. He said that they are building capacity to meet demand, but who is demanding? I can tell him that people in north Wales are not demanding to go to the sort of prisons that exist, with their dreadful conditions.

As I understood it, the noble and learned Lord conceded the need for a royal commission to meet the point made by the noble Lord, Lord Berkeley, on his utopian idea that there should be a separate agency for the mentally ill. We can pursue that idea in all sorts of ways.

My noble friend Lord Beith referred to the most recent offence to be created—stealing a cat, for which you get five years. But he got it wrong. It is not stealing, because you do not have to prove an intent permanently to deprive; all you have to do is show TWOC—taking away the cat without the consent of the owner. Do not give Tiddles from next door some milk without telling your neighbour, or you might get five years for it.

[Lord Beith (LD)]

I remind my noble friend that it is worse than that. All you have to do is induce the animal to accompany you.

[Lord Thomas of Gresford (LD)]

All those people yearning for a cat now know where they stand with this Government.

I pay tribute to the noble Lord, Lord Ramsbotham. For decades we have listened to him in this House with great attention on all these subjects. He has been a beacon in the attempt to reform prisons, with his great knowledge in having been Chief Inspector of Prisons over that period. I am grateful for his support for this amendment.

My noble friend Lord German pointed to the way in which sentencing has inflated over the years. I know from personal experience—from the other side of the Bar, not in the dock—that that has happened and continues to happen.

The Minister said two contradictory things: that there is no departure from the manifesto commitment for a royal commission and that the Government are already pursuing these ideas, so a royal commission is unnecessary. It is still their manifesto commitment, but they think that it is unnecessary. With these ideas being pursued in some secret corner of Whitehall, are there public hearings? Is there a call for expert evidence? Is there a publication of the results? It is not the same thing as a royal commission at all; it is simply the Government squirrelling away in the background, trying to make the best they can of the resources they will put to it. What we need is this royal commission acting not for any political reason but trying to put a real problem right. I will return to this matter, while asking to withdraw the amendment, when we get to Report.

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There are times in life when the law must be challenged from outside Parliament—even, indeed, outside the courts. That must apply in particular where the law is frozen in aspic. Survival of the planet is one such issue, and I have nothing but admiration for those who go about their endeavour in a spirit of peace. Any amendment to the law in today’s amendments must reflect that freedom.

[Lord Beith (LD)]

My Lords, I will speak to two amendments in my name. By way of preface, I must say how much I agree with the noble Lord, Lord Dubs, in his masterful presentation of the case against what the Government are doing, and of the observations of the Joint Committee on Human Rights.

The noble Lord mentioned proportionality. Proportionality was central to the case of Ziegler and others in the Supreme Court back in July. I thought the wording it used, as reported by the Times, summed up my feeling in a way:

“Peaceful protest was capable of constituting a ‘lawful excuse’ for deliberate physical obstruction of the highway … There had to be an evaluation on the facts of each case to determine whether any restrictions on the protesters’ rights to freedom of expression and freedom of peaceful association was proportionate. There should be a certain degree of tolerance to disruption to ordinary life caused by the exercise of those freedoms.”


I do not think the Government like the concept of proportionality, and the whole direction of these clauses—and those in the subsequent group, more recently tabled —illustrates that.

The amendments I have tabled are probing one feature, which is the word “unease”. They are Amendments 297 and 307. In the new subsection that the Government propose, which is about

“the noise generated by persons taking part in”

an assembly, there is reference to the impact it may have on “persons in the vicinity” of that assembly

“if … it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity”.

A court is going to have some fun working out what the characteristics are of people likely to be in the vicinity, but that is another part of the story.

The subsection also applies if

“it may cause such persons to suffer serious unease”.

That is a very low bar indeed. It made me think of the Governor of the Bank of England speaking to the Treasury Committee a couple of weeks ago. He said that he was “very uneasy” about the inflation situation¸ but not so uneasy that he sought to raise the interest rates. In his view of vocabulary, “uneasy” is clearly nowhere near the top at all.

It is the purpose of numerous protests to make people uneasy; I have been made uneasy by both the intensity and subject matter of protests. The protests that went on in Glasgow were designed to make people feel uneasy about what is happening to the planet, and to do so in ways which might even more directly make them feel uneasy, by noticing that such a large number of people are involved and making such a lot of noise.

However, it has always been so. John Wesley and his followers made people uneasy, by preaching loudly out in the open air and singing loud hymns. It was to make them uneasy about the life they were leading and trying to cause them to change their way of life. I have been confronted in my time by all sorts of demonstrations and protestors, putting forward views which I sometimes agreed with and sometimes did not. But being even seriously uneasy does not seem any reasonable basis on which to restrict the rights of protest. I simply cannot conceive that the Government have any other intention than to make protest much more difficult, even in circumstances which most people, on reflection, would accept were reasonable.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, we have had some powerful speeches already and it is a real pleasure to hear them. This was supposed to be the worst bit of the Bill. It is a terrible Bill but this was meant to be the absolute pits. However, the Government have made things worse by bringing in the latest amendments, so this is not the worst bit any more; it is just the next worst bit.

I have signed about a dozen amendments in this group. I could have signed them all and definitely support them all. Many of them are good, and worth raising, but the only real way forward is to remove these clauses altogether. I hope that opposition parties can join together to do that on Report, because our civil liberties and human rights are far too important to be negated in this way.

Amendment 293 from the noble Lord, Lord Dubs, sets the scene perfectly because it stresses the importance of the right to protest in a free country. We always look down our noses at all these illiberal countries abroad who suppress their citizens—their human rights and liberty to protest—but this Government are trying to do exactly the same. Any restriction on the right to protest has to be really carefully considered, not rushed in with 18 pages of amendments at the last minute and without any proper discussion.

There is a balancing act between the rights of individuals and those of wider society. The balancing act already happens because there is a great number of restrictions on protest in this country. The police have many powers, which they use, and many tactics—some of which go too far, such as kettling. The Government want to ramp up these restrictions even more: being noisy or annoying could be banned. Some Peers could be banned because they are annoying. We could end up with the only protests, as has been said, being the ones that are so quiet and uneventful that they achieve absolutely nothing.

This is deep, dark politics. This is about a Conservative Government wanting to rewrite completely how we operate within society, as individuals against the state. I think they are planning, or hoping, to remain the dominant political party for generations to come. That is what could happen through these terrible amendments.

If you make protests impossible to perform legally, criminalise non-violent direct action, abolish or restrict the ability of citizens to challenge the Government in court through judicial reviews, turn people against lawyers, gerrymander the election boundaries and dish out cash in the way that looks best for Conservative MPs, that is deep, dark politics. Many of us here are not particularly political and perhaps do not see the dangers inherent in what you, the Government, are doing. It all seems like a calculated ploy to turn all the cards in favour of an unaccountable Government that cannot be challenged in the courts, at the ballot box or on the streets. We all have to unite against this and deleting these clauses from the Bill is the beginning of that fight.

I have a tiny quibble on the issue that noble Peers have mentioned about the survival of the planet. The chances are that the planet will survive. What we are doing in this climate crisis is destroying the little bit of ecosphere that supports human life, so that is what we have to think about. It is not about survival of the planet but about survival of people.

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Moved by

[Lord Beith]

298: Clause 55, page 47, line 33, leave out subsection (4)
Member’s explanatory statement
This is based on a DPRRC recommendation. It removes the ability of the Secretary of State to make regulations defining “serious disruption to the activities of an organisation” and “serious disruption to the life of the community”, thereby requiring these terms to be defined on the face of the Bill.

[Lord Beith (LD)]

My Lords, this is a simple and straightforward amendment implementing the wishes of our Delegated Powers and Regulatory Reform Committee. It deals with the “serious disruption to … an organisation” and “serious disruption to the life of the community” provisions, which, instead of being set out in the Bill, are to be the subject of a statutory instrument, a draft of which, or parts of which, have already been circulated by the Government.

The Delegated Powers and Regulatory Reform Committee was quite clear that the affirmative procedure for a statutory instrument is wholly inadequate to anything as important and fundamental as this. An affirmative statutory instrument, being unamendable and debated only once in each House, was not in its view adequate. It considered that the definitions of the expressions in question should be added to the Bill to give Parliament the opportunity fully to debate them. It said:

“We consider that the definitions of the expressions ‘serious disruption to the activities of an organisation’ and ‘serious disruption to the life of the community’ are of such significance that they merit the fuller scrutiny afforded to Bill provisions and should therefore appear on the face of the Bill.”


It is not clear to me that it was necessary to have got into this territory at all. There is a complex potential conflict with ECHR provisions which will probably lead to the matter being resolved in the courts in any event. For us to allow Ministers to proceed by statutory instrument on a matter which could have such a profound effect on how these provisions operate in practice does not seem wise. I therefore strongly support the views of the Delegated Powers Committee and believe that either the Government should go ahead and include these provisions in the Bill or they should take this element out altogether.

[Lord Judge (CB)]

My Lords, we have not had time yet for all of us to read the report from the Secondary Legislation Scrutiny Committee or, for that matter, that of the Delegated Powers and Regulatory Reform Committee, whose paper is entitled Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. I have read that, but I did not get round to the first.

We have to support our committees—that is why we have them; they are cross party. This is a tiny amendment of significance. The amendment does not propose any interference with the power to address the problem of serious disruption. It is not intended to address that. The submission is that the way in which the legislation is drafted, in Clause 55(4) and Clause 56(6), is completely unnecessary to enable justice to be done in whichever way the Government think it is appropriate for justice to be done.

Secondly—this is a bit naughty of me—I think the provision reflects a growing constitutional wheeze, what I call the “blank cheque wheeze”. It is this: the Executive tell the legislature to please legislate, and the legislature legislates—and, when it legislates, the Executive then tell the legislature what the legislation means. That is a blank cheque that we are being asked to give in these clauses.

As to the words, I know that it is quite late at night and so I shall be short, but do any of us here not understand two simple English words—“severe disruption”? I mean, come on, even the lawyers among us cannot think of a lot of differences. “Severe”, “serious”—get out your thesaurus. They are simple English words, and the two words put together make a perfectly clear picture of what is being addressed and sought to be protected.

This is unnecessary and a wheeze. We really must not allow the Executive to start treating this way of legislating—called in more elegant terms tertiary legislation —by saying, “We’ll tell you what it means when we get around to it”. The Secretary of State has started to tell us what it means. The place where we should be told what it means, if it does not mean what it says—and I think that it does mean what it says—is in a definition clause within the primary legislation.

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[Baroness Williams of Trafford (Con)]

I have listened to the noble Lord loud and clear. Governments are urged to respond to Select Committee reports within two months, and only last week the noble Lord, Lord Faulkner, was pressing for the response to the DPRRC. I will say two things, and I will be brief, in response to the noble Lord, Lord Beith, and the two noble and learned Lords.

The Government are considering the DPRRC’s recommendation to list the definitions in the Bill, and I have listened to the points made loud and clear by the noble and learned Lords, Lord Judge and Lord Hope, and will consider them and the strength of their views. I assure noble Lords that we will publish our response to the DPRRC report very soon. With that, I hope the noble Lord, Lord Beith, will withdraw his amendment.

[Lord Beith (LD)]

My Lords, much as I would welcome publication of the response, what matters is what it contains and whether, even at this stage, the Minister recognises that it is still possible and well within the Government’s capacity to make an appropriate amendment on Report. I am not asking her to make a commitment to that effect, because she has obviously not been given the authority to do that, but we clearly have to return to this. I hope that we can do so on the basis of the Government recognising the point made by the Committee.

This is the trigger that allows police involvement in setting quite challenging conditions regarding protest and noise, which worry us a great deal. This is the key trigger, so for it not to be clear in the Bill or used in the sense in which people normally use it and understand it in courts is to imperil one of the key operating features of the Government’s proposals. I am not in the least enthusiastic about the Government’s proposals, but I think they should be coherent and capable of working. For that to happen, the Minister needs to look at this carefully. We will await what she brings forward on Report with interest. I beg leave to withdraw the amendment.

Amendment 298 withdrawn.

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[Baroness Williams of Trafford (Con)]

My Lords, the amendments tabled in my name are in response to the significant and repeated disruption we have seen over the last months by a small number of protesters. Their behaviour has clearly demonstrated that the balance between the rights of protesters and the rights of others tips far too far in favour of the protesters.

It is completely unacceptable for a minority of protesters to repeatedly and deliberately cause serious disruption to members of the public trying to go about their daily lives: trying to get to work or trying to get to hospital. Additionally, some of the tactics we have seen have been extremely dangerous, placing the police and the public, and the protesters themselves, at serious risk of harm.

We cannot have sections of our transport infrastructure or other critical infrastructure brought to a halt by a small group of protesters, whatever their cause. As I said in an earlier debate, we accept that some level of disruption is to be expected and tolerated from protest actions, but there is a line to be drawn. Insulate Britain, Extinction Rebellion and others have overstepped that line. The sentences recently handed down for breaches of the injunction obtained by National Highways demonstrate that clearly.

These amendments will strengthen the police’s ability to respond to the types of protests we have seen and reflect the seriousness of that type of behaviour. We need to update the criminal law and police powers to deter and prevent such wholly unacceptable disruption taking place. Civil injunctions have their place, but they are not enough on their own.

Amendments 319A and 319B introduce new offences of locking on and going equipped to lock on. These offences are designed to deter individuals from engaging in lock-on tactics, which cause serious disruption to the public and organisations. Lock-ons waste a considerable amount of police time and some, such as those on the side of buildings or on tripods or similar temporary structures erected by protesters, place the police and the protesters themselves at serious risk of injury or even death.

The locking-on offence will be committed where individuals attach themselves to other individuals, objects or land, or attach objects together or to land. It would be an offence only if their act causes or is capable of causing serious disruption. Furthermore, there must be an intention to lock on, and the offender must intend to cause, or be reckless as to causing, serious disruption. If found guilty of this offence, an individual will be liable to a maximum penalty of an unlimited fine, six months in prison or both. The offence will apply to lock-ons that cause, or are capable of causing, serious disruption on public and private land. However, private dwellings, including people’s houses, will be excluded.

Supporting this measure is the new offence of “going equipped to lock on”. This offence will apply where a person has with them an object with the intention that it will be used, either by themselves or someone else, in the course of or in connection with a lock-on. In this case, the maximum penalty is an unlimited fine.

Amendment 319C increases the maximum penalties for the offence of obstruction of the highway and clarifies the scope of the offence. Currently, individuals found guilty of this offence face a maximum fine of only £1,000. Recent actions by Insulate Britain have shown that this is disproportionality low compared with the widespread misery and disruption that an obstruction of a major road can cause. Anyone found guilty of this offence will now face an unlimited fine, up to six months in prison or both.

Additionally, this amendment clarifies that the offence is still committed even if free passage along the highway in question has already been suspended. This is to address the defence that some have used, claiming that they were not guilty of obstructing the highway because they joined a protest after the police had already closed the road to ensure protesters’ safety while they were being removed.

Amendment 319D creates a new offence of obstructing major transport works, such as airports, roads, railways and ports. As noble Lords will know, protesters have caused huge disruption in the construction of HS2. Additional costs to the project resulting from protester actions alone are estimated at £80 million. That is unacceptable.

Protesters have been able to evade conviction for highly disruptive and dangerous acts, such as tunnelling under Euston Square Gardens, on effectively a technicality, namely that HS2 was not carrying out construction work on the site at the time of the occupation. This new offence will make it clear that obstructing the construction, and preliminary work to construction, of important transport infrastructure constitutes criminal activity and that the Government see this as a serious offence.

Acts in scope of this offence would include interfering with construction apparatus or obstructing the surveying of land prior to the commencement of construction. Such behaviour will carry a maximum penalty of an unlimited fine and/or six months’ imprisonment.

The amendment defines “major transport works” as any works that are

“authorised directly by an Act of Parliament”

or by development consent orders under the Planning Act 2008. This would capture transport works of strategic importance that support the levelling up of our transport infrastructure across the country.

[Lord Beith (LD)]

Will the Minister explain that a little further? In relation to the recent announcement about not proceeding with the Yorkshire leg of HS2 but instead carrying out a variety of other works, does that mean that these other works, which are not separately sanctioned by Parliament, will not be included within the scope of the clause?

[Baroness Williams of Trafford (Con)]

Yes—it is confined to works that are authorised directly by an Act of Parliament, so, if they have not been, they are not in scope. As I said, the amendment would capture transport works of strategic importance that support the levelling up of our transport infrastructure.

To ensure that the police have the ability to proactively prevent protesters causing harm, we are introducing supporting stop and search powers for these and other protest-related offences. In its March 2021 report on policing protests, Getting the Balance Right?, HMICFRS argued that new stop and search powers could help police to prevent disruption and keep the public safe.

Amendment 319E amends Section 1 of the Police and Criminal Evidence Act 1984 to allow a police constable to stop and search a person or vehicle where they reasonably suspect that they will find an article made, adapted or intended for use in the course of committing one or other of the offences relating to locking-on offences, public nuisance, obstructing a highway or obstructing major transport works. While this power will significantly help police in preventing protesters using highly disruptive tactics, in a fast-moving protest situation it is not always possible for the police to form suspicions that certain individuals have particular items with them. Therefore, Amendment 319F provides for a police officer of the rank of inspector or above to authorise the use of the suspicionless stop and search power.

I have just been passed a note that says that Amendment 319D defines major transport works as any works that are

“authorised directly by an Act of Parliament”

or by development consent orders under the Planning Act 2008. That further clarifies my response to the question of the noble Lord, Lord Beith.

[Lord Beith (LD)]

That is very helpful of the Minister. It probably means that the announcement made last week about HS2 not proceeding but various other kinds of rail works going ahead will mean that none of those alternative rail works will be covered by these provisions.

[Baroness Williams of Trafford (Con)]

It depends on whether they have been authorised directly by an Act of Parliament or by development consent orders under the Planning Act 2008. I will not pretend to know the detail of that at this point, but I can get the noble Lord the detail, if he would like me to.

Amendment 319F provides for a police officer of the rank of inspector or above to authorise the use of the suspicionless stop and search power. This mirrors the powers currently available to the police under Section 60 of the Criminal Justice and Public Order Act 1994. As with existing Section 60 powers, this power can apply only in a specific locality and for a maximum of 24 hours, with the option to extend it if deemed necessary by a senior police officer. Amendments 319G to 319J make further provisions in respect of the suspicionless stop and search powers, in line with the existing Section 60 stop and search powers.

Finally, Amendment 319K introduces serious disruption prevention orders, or SDPOs. These new preventive court orders are designed to tackle protesters who are determined to repeatedly cause disruption to the public. There are two circumstances in which they can be made. A court will be able to impose an SDPO on conviction where an individual has been convicted of a protest-related offence and has been convicted of an earlier protest-related offence.

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Overall, these are outrageous proposals with serious consequences in terms of police powers, infringement of civil liberties and the creation of new offences, introduced in a wholly unacceptable way at the last minute at the Committee stage in the House of Lords, where the other place will have very little, if any, time to properly consider them, either in Committee or on the Floor of the House. These government amendments must be withdrawn and seriously reconsidered.

[Lord Beith (LD)]

My Lords, I strongly support my noble friend. When I came to this House, I was told that this was a place in which, line by line, we scrutinise legislation to make sure that, whatever its policy objectives, it is properly constructed, workable law. I was also told that we pay particular attention to things that have not been debated fully in the Commons. I came here happily, ready to try to assist in that sort of thing.

That is not what we are doing now. These proposed new clauses have not been considered by the House of Commons. They were not sent to us from the House of Commons; nor were they tabled when they could have been. In her introductory remarks, the Minister did not give us any indication as to why we are getting them at this stage and why they were not tabled in the Commons, or at least at the beginning of Committee stage in the Lords. It seems to me that political considerations have taken precedence over all considerations relating to making good law and, indeed, policing protests satisfactorily and effectively.

This is so unsatisfactory because this group of proposed new clauses covers at least five fundamental issues, to which my noble friend referred. The new offence of locking on is a completely new offence with no obvious precedent in existing law; it therefore requires pretty careful consideration, first, as to whether it is necessary and, secondly, as to what the consequences will be of having on the statute book provisions as bizarre-sounding as some of them are. I will not trouble the Committee with the details at this late hour, but locking on and

“being equipped for locking on”

are wholly new elements being introduced into our criminal law.

Then we have “search without suspicion”. We succeeded in excising that from other, earlier legislation, but here it comes back to us. Subsection (7) of the new clause proposed by Amendment 319F states:

“A constable may, in the exercise of the powers conferred by subsection (6), stop any person or vehicle and make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person or vehicle is carrying a prohibited object.”


Should the person concerned, perhaps out of the sort of anxiety that has arisen after the Sarah Everard case, feel that they are being asked to do something unreasonable, perhaps even dangerous, they must remember this:

“A person commits an offence if the person intentionally obstructs a constable in the exercise of the constable’s powers under section (Powers to stop and search without suspicion).”


This is very discomforting language to find in legislation.

That is two fundamental issues already. Then we have “obstruction of highway”. The Minister explained the reason for one of the odder provisions in that proposed new clause, but it has a rather bizarre effect. Let us say that the road outside your house has been blocked for a week or two by some public undertaking supposedly carrying out works, although you never see any workmen there or anything happening; that is a fairly regular occurrence. You decide with your neighbours to protest about this, so you all gather in the road and effectively block the road, perhaps to the machine that the company has at least brought along. If the company says to you, “You’re blocking the road”, and you say, “No, you’re blocking the road. We’re protesting at you blocking the road”, you are still committing an offence because you are blocking the road—even though it is already blocked. That is what is provided for under this legislation. Sometimes one must look at the secondary consequences of legislating badly.

Then there is “Obstruction etc of major transport works”. I tried to assist the Minister in making this a little clearer; she was very helpful in producing the note that she had been given. However, again, there is a slightly bizarre effect. Having announced that we will not get the rest of HS2 to serve us in the north but, in various other ways, lines will be improved and some bits of new railway will be put in, none of that is covered by any of the provisions referred to, as far as I can see—not that the people of the north are eager to stop rail improvement. Perhaps some of these issues will not arise but, again, if you try to write legislation around an individual set of circumstances that has arisen, you get into trouble. You turn into general law attempts to deal with very specific cases.

Then we come to the issue to which my noble friend Lord Paddick gave particular attention: serious disruption prevention orders. Here, again, I must refer to the work of the Delegated Powers and Regulatory Reform Committee. It described the orders, some of their features and the fact that they can be imposed on people who have not been convicted of any offence—the orders are not limited to the prevention of criminal conduct, either—by saying that the proposed new clause

“allows the Secretary of State to issue guidance to chief officers of police and chief constables in relation to SDPOs, including … identifying persons in respect of whom it may be appropriate for applications for SDPOs to be made”.

I am genuinely puzzled as to what that means or what the consequences will be.

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Wednesday 8th December 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I cannot speak as eloquently as the speakers we have just heard, but I want to say that this feels so much like law made by press release, and law made to virtue-signal, that I feel incredibly uncomfortable about it.

We want to say to emergency workers that we will protect them if they are at risk, but we know that the emergency worker in this instance, PC Harper, was not the target of the crime; it was not intentional to kill an emergency worker. So I do not see even how this operates as a deterrent, because it is not aimed at people who have put those emergency workers at risk, even though those workers have accidentally been killed in the pursuit of a criminal act that is, I accept, dangerous.

There is an exception, which is that the trial judge can make an alternative sentence in “exceptional circumstances”. But, as has been pointed out, the trial judge can already make an alternative sentence—a full life sentence in some circumstances—so why emphasise it, unless it is a political policy statement? It is not a matter of law; it is a question of saying, “We will be hard”, and it will inevitably lead to great injustice. The fact that 16 and 17 year-olds have been included means that very young people could now have mandatory life sentences for manslaughter, with no discretion, and no discretion encouraged. It is so wrong and brought in for all the wrong reasons.

[Lord Beith (LD)]

My Lords, I share many of the reservations expressed already and the analysis given on both the provision and the circumstances which have led to it. I ask the Minister, in his response to the debate, to deal with one of the points raised by the noble Viscount, which is the discretion that might be available to the judge in deciding what tariff accompanies the sentence, as opposed to the provisions of proposed new subsection (2), which give slightly more power—I refrain from defining it as a wider power—in exceptional circumstances to the judge to impose a different sentence altogether.

One thing the Minister did not cover in his helpful introduction was the extent to which the tariff provisions interact with this. I would be grateful if he could explain that, in case he can give us any reassurance about what seems to be the danger of making general law out of a particular case.

[Lord Pannick (CB)]

My Lords, if I may, I will add a point that follows on from what the noble Lord, Lord Beith, said. To require a life sentence is pure deception because we all know that life sentences are not life sentences, and there is a strong feeling that the life sentence for murder is a deception. Other than in the most exceptional circumstances, the person concerned will be released, and the judge pronounces, in open court, a tariff. I entirely understand why the Government wish to give comfort to the unfortunate relatives and friends of those heroic emergency workers who suffer this appalling treatment and die in service of the country, but it is a gesture—a misleading gesture. We really should not be perpetuating more and more life sentences when the reality is that people receive a term of years.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not quite sure what I am being asked to accept, but I do not have any uncertainty as to what “exceptional circumstances” is. It is a phrase used in this legislation; it is used in other legislation; it is a phrase that is well known to the courts. It is a phrase that they are perfectly able to deal with.

[Lord Beith (LD)]

The relevance of IPP sentences to this debate is that, when IPP sentences were introduced, rather similar speeches were made from the Front Bench to the one that the Minister is making tonight. I know his style his different, but the fact remains that it was a disaster and a scandal. It developed in ways in which all those who introduced it did not anticipate, and now concede was wrong, but they had not fully understood at the time what the consequences were. This has all those hallmarks about it.

[Lord Wolfson of Tredegar (Con)]

As I said, I am very alive to the IPP issues, as the noble Lord knows; but the IPP issue and the IPP sentence was a novel sentence which did things that other sentences did not do. Indeed, that is why it was brought in. The shape of this sentence, however, is not novel. It is the application to this particular offence that is new. With the greatest of respect, therefore, I disagree with the comparison to IPP sentences, which were themselves novel.

I hope that I have set out the government position clearly and fairly—

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Wednesday 8th December 2021 Lords Chamber

[Lord Blencathra (Con)]

My Lords, first, I apologise to my noble friend for wrongfooting him. I arrived about 15 minutes ago, having sent a message to the Front Bench earlier today that, since my train was going in slow motion because of wind on the line, I was likely to be here rather late. My message was to thank the Government, the Home Office and my noble friend Lady Williams of Trafford, who took on board the criticisms that the Delegated Powers and Regulatory Reform Committee made. I have the privilege of being chair of that committee for the next three weeks only—so the Government can rest in peace afterwards.

We made a large number of recommendations and, to be fair, the Home Office took them on board and my noble friend has accepted the majority of them. That is a good message to send to other departments. It goes to show that, when my committee makes recommendations, they can be accepted by the Government, because they do not sabotage the Bill or stop the political thrust of what the Government are trying to do. At the very most, our most extreme recommendations may mean that some bit of delegated powers legislation might be debated for 90 minutes in the affirmative procedure—never under the negative, unless it is prayed against—which will mean a Minister having to host a debate for 90 minutes. It will probably be a Lords Minister, because the Commons possibly will not bother. So it can be done.

The only substantive comment that I wish to make is about my noble friend using the standard excuse—although he used it in a more delicate way—that we hear from most departments when they refuse to accept that the guidance to which one must have regard should be seen by Parliament. Some departments take a much more arrogant attitude and say, “Oh, well, we publish lots of guidance every year and we consult the stakeholders and experts, so we don’t need to trouble you people in Parliament who know nothing about it”. That is not quite what they say, but that is the thrust of it. I had a tremendous success last week, when I had a two-word amendment accepted by the sponsor of the Bill and the department—and those two words were “by regulations”. The clause said that “guidance that must be followed will be issued”, and we inserted the words, “by regulations”. That made no difference to the practical effect of the Bill.

The other justification that we often hear is, “Oh, we issue a lot of guidance, you know, and it has to be changed rapidly”. I am not suggesting that it applies to this guidance, but a lot of that is simply not true. If the guidance has to be changed rapidly, it has to be printed and issued. All we say in that case is “Put it in a negative regulation which Parliament can see, and only those who have an interest, or the Opposition, may move a prayer against it”.

We issued a strong report last week, and so did my noble friend Lord Hodgson of Astley Abbotts, from the Secondary Legislation Scrutiny Committee. My committee issued a report complaining strongly about disguised legislation, where the Minister not only has power to issue his own regulations but they are called “directions”, “protocols” and so on. That is disguised legislation. We also complained about skeleton Bills. If you want to see a skeleton Bill, look at the new Bill on healthcare, where there are about 150 delegations. The Bill has no guts—that will be filled in by legislation later.

I hope that my noble friends will speak to the Department of Health and the Ministers there. I have no idea what our committee will report when we look at the Bill next week, but I suspect that we will be highly critical of the contents. I hope that my noble friend the Minister, coming from the Home Office, can tell the Department of Health to follow our example. If we in the Home Office, one of the mightiest departments of state, can accept the vast majority of suggestions from the Delegated Powers Committee, other departments can do so too, knowing that their legislation is safe. We do not sabotage it and we do not try to stop it. We have no political input on the merits of the Bill; we leave that to noble Lords here. However, we do care about inappropriate delegations.

Having read the riot act on that, I thank my noble friends on the Front Bench for the considerable changes that they have made on this—and I just wish that they would go a wee bit further and accept the last one.

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Blencathra, just illustrated the value of his service as chairman of the Delegated Powers and Regulatory Reform Committee, which the House should thank him for—but in the knowledge that his successor is unlikely to give the Government peace because this is an area where all Governments need to be brought up to the mark. His more wide-ranging report last week illustrates this, and I will refer to it briefly in a moment.

It is good to be in the part of the Bill where the Government have listened, both to the Delegated Powers Committee and to the House itself, where voices were raised, particularly on the issue of the publication of the strategy on serious violence for which provision is made in the Bill. It really does not make sense for a strategy to exist which is not published and which therefore cannot be the subject of accountability. That was quickly recognised by Ministers at the Dispatch Box here. They have acted in accordance with that and I very much welcome that. They have met the objections to publication by specifying areas in which there must be a bit more care about what should not be published because of adverse consequences for the public interest, over things such as custodial institutions and other ways in which material could be released in a way which would be damaging to the general public interest.

That is one area where I am pleased that the Government have listened. I am also pleased that in a number of respects, if not quite all, the Government have responded on issues of laying guidance before Parliament and on providing a parliamentary procedure, either negative or affirmative, for some of the instruments. I will say in passing, however, that laying guidance before Parliament is a bit of a formality. Unless Members of one House or the other find a way of debating it—it is a little easier in this House than the other—laying it before Parliament does not achieve anything practical, whereas having a procedure in the House, defective though the negative procedure is, is much more useful. In most respects that request has been met.

Producing a list of previous legislation which was deficient in this respect is not a persuasive answer to the challenging issues raised by the Delegated Powers and Regulatory Reform Committee and the Statutory Instruments Committee. It is generally recognised that there is a serious deficiency which has been allowed to grow as the scope of legislations has extended. Things which have the practical effect of legislation have become more numerous, but Parliament has not developed effective procedures to ensure good scrutiny and to ensure that the neo-legislation is in workable and legally sound form.

As the committee said in its wider report, if, because of modern conditions, Parliament is being asked to accept new ways of legislating, it is surely right that the Government must stand ready to accept new methods of scrutiny and of being held to account. So, like others, we take the view that there is now an urgent need to take stock and rebalance their relationship. This Bill has arrived at the beginning of that very important process, but it is encouraging that Ministers have at least responded in a number of key respects, and I welcome that.

[Lord Paddick (LD)]

My Lords, noble Lords have already comprehensively covered the ground, and I am especially grateful to the noble Lord, Lord Blencathra, and his Delegated Powers and Regulatory Reform Committee, and to the Government for listening to that committee, and to the concerns that were expressed in Committee, and by the Constitution Committee and the Secondary Legislation Scrutiny Committee.

We are concerned that simply laying guidance before Parliament is not sufficient. It should be by regulations, as the noble Lord has said. However, we are pleased that the Government have listened to some extent and we support these amendments.

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

[Baroness Chakrabarti (Lab)]

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

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

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

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

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

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

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

[Lord Beith (LD)]

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

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

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

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

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

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Wednesday 15th December 2021 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I rise briefly to support all three of the proposed new clauses, most particularly those proposed by Amendments 79 and 80. Looking back on my time in Parliament—nearly 40 years now—I think this was the most unfortunate decision taken in the criminal system. I pay tribute the noble Lord, Lord Blunkett, for coming to this House and putting before us his proposed new clause. Indeed, I pay tribute to the noble and learned Lord, Lord Brown, for his proposed new clause as well. A huge injustice has been done; as a parliamentarian, I view our contribution to it with a great sense of shame and embarrassment.

At the end of last week, a prisoner wrote to me to tell me that he had a tariff of two years imposed on him and has now served 14 years. I do not know the detail of his case but it is deeply troubling that that happened. In fact, I have referred his letter to the chairman of the Parole Board; I very much hope that she will look into it carefully. I can do no more. However, the truth is that the proposed new clauses before this House give us an opportunity to move forward. My belief is that they do not go anything like far enough, but we have to take the steps that are available.

I hope that my noble friend the Minister will respond sympathetically to the issues raised. I must say, if the opinion of the House is sought on any of these proposed new clauses, I will support them.

[Lord Beith (LD)]

My Lords, I certainly want to hear what the Minister has to say because I will go home very uneasy indeed if I pass up the opportunity for a vote to make it clear that this House rejects the system that has developed into a gross distortion of both our justice system and our sense of values about the circumstances in which someone can be incarcerated and those in which they are entitled to recover their freedom. We cannot tolerate this continuing. There is a hope that the Minister will say things that will enable us to feel that we are making some progress, but some of us will not sleep well tonight if we leave this place without being sure that some progress will be made.

[Baroness Jones of Moulsecoomb (GP)]

My Lords—

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Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, I agree with all the arguments my noble friend brought forward for having an overall look at sentencing and how it operates, and how that needs to be done at arm’s length from government. I will simply add two questions to the list he created, which the noble and learned Lord just very helpfully added to.

The first question is: can we find a way in which society can assert its abhorrence at various kinds and levels of criminality that does not automatically increase the amount of time people spend in prison, or the amount of money we as a society spend on prison? Sentences are often used as ways of indicating, quite necessarily, that society will not stand for crimes of various kinds, but simply spending a lot of money keeping someone in prison, feeding them for the next decade or two, is not necessarily a cost-effective way to achieve that.

That leads me to my second point. Prison commands resources. It does so automatically. The impact statement for this Bill indicates that the Government anticipate that 300 more prison places will be required by the measures in the Bill, quite apart from all the other factors, leading us to spend more money on prisons. We have to ask: is that a good use of money for the purpose of preventing further crime?

Very interesting discussions took place in the US, particularly in Texas, in which the lead in changing the approach was taken by some of those on the Republican side, who said, “This is the taxpayer’s dollar, and it’s our responsibility to spend it efficiently and effectively.” In our country, it is our responsibility to spend the taxpayer’s pound efficiently and effectively to achieve the reductions in crime that taxpayers would like to see. Pouring money into more and more prison places is not demonstrably a way of achieving that objective, and we ought at least to look at how it might be done differently.

[The Lord Bishop of Gloucester]

My Lords, I fully support the amendment. Sometimes I feel a bit as if I am in “Groundhog Day” as we listen to things that are said again and again. When we first discussed the Bill in this House, many people far more learned than me commented on all the issues with the Bill and the fact that so much of it is piecemeal—that we are trying to put sticking plasters over things without looking at the issues holistically and without looking at evidence. So much of it seems to be a reaction—often to populist headlines, let us be honest. There is so much evidence that we are not looking at, and so much of what we are discussing is not backed up by the evidence.

For that reason, I warmly recommend taking a holistic look at what we are doing, why people end up in prison in the first place, what we are doing when we sentence people, what is going on in our prisons and what it means for when people come out through the gate. As has been said, even if people are utterly callous and care only about finance, what we are doing at the moment makes no financial sense whatsoever. I wholeheartedly applaud this amendment.

--- Later in debate ---

Moved by

[Lord Beith]

106: Clause 46, page 39, line 17, after “sport” insert “, dance, drama, music”
Member’s explanatory statement
This is intended to address a potential gap in the law related to other teaching or supervisory positions/ of trust.

[Lord Beith (LD)]

My Lords, in moving this amendment, I seek to bring music, drama and dance within provisions that the Government have included in the Bill in respect of sport and religion. The Bill takes the Sexual Offences Act 2003 and imports the position of trust of someone who is training in sport or religion into the mechanism of the Sexual Offences Act. That makes the concept of positions of trust apply not simply in institutions such as schools but to individuals carrying out training on a private basis or as part of a community organisation and in any number of other ways.

It has puzzled me from the beginning how the Government have identified sport and religion alone as fields in which abuse can take place—when people who have close personal charge in a training role of a young individual can have undue influence that could be put to the wrong use, as a means of sexual abuse or a route into sexual abuse. I do not know anybody who believes that this problem exists only in the areas of religion and sport and not in other areas where very close contact is involved in training, instruction and development. The Government concede one small part of my amendment by taking the view that dance is already included, which must be true, in the wording of the legislation, if the dance is preparation for “competition or display”. I can imagine that an Irish or Scottish dancing group for which individual training was taking place might well be covered. I am less convinced that professional ballet might be covered; that is an area in which we have seen very serious abuse of people undergoing training by a professional ballet instructor.

It is very difficult to understand why the Government have alighted on those two areas alone and not others, because the characteristics of the situation are very similar in all these different areas of activity. There are some distinctive features but so many similar characteristics: being alone with someone quite a lot; a competitive situation in which the person being trained is desperate to be included in the display or team; a desire to please; and the developing of a close personal relationship. They are all elements that we find in a number of other areas, so I wonder what the Government’s argument is.

I have had very helpful discussions with the Minister, who has been generous with his time and his staff’s attention to this matter. However, despite all his efforts, he has not succeeded in convincing me that the Government have a logical case at all. The argument that the Government resort to is that extending these provisions to music and drama would have the effect of raising the age of consent, so relationships that would not be unlawful at present would become unlawful if we extended them into music and drama. That is a very odd argument because that is precisely what the Government are doing for sport and religion: they say that the danger of predatory sexual activity is so serious that we must protect people aged 16 to 18 from this being done in a training situation, but only if their training is in sport or religion.

I simply do not understand that argument or why, if the Government think it is such a serious objection, they are prepared to do exactly that for sport and religion but not in other areas. If it is because of abuse by sexual predators that such provisions are being considered and provided for those two areas, it makes no sense that these other areas are excluded. However, they can be included subsequently because the Government have given themselves the power by affirmative order in this legislation to add other activities, or indeed to remove either of the two activities currently included.

As I thought about this, I wondered what the circumstances were in which the Government would decide to add one of the areas that I have identified—music teaching or drama teaching—to the condition where people are regarded as having a position of trust when they are engaging in training. What would lead the Government to make that change? It would probably be cases coming to light. Such cases will come to light, because in all these areas we know that, despite many thousands of people conscientiously providing this kind of training, there are those who get into these roles with predatory intent, and others who might be regarded as having done so where perhaps it has arisen more innocently between two relatively young people but in a situation that we cannot simply ignore.

When those cases arise, the question will be asked: why is the perpetrator not being charged as someone in a position of trust would be? The answer will be that the Government decided that we did not need this provision in respect of music or drama, even though we need it for sport and religion. I think future Ministers will find that a very uncomfortable question to deal with from the Dispatch Box when we then point out that cases have arisen that could have been pursued under the kind of provisions that they see as necessary for sport and religion.

The Government are in an illogical position, and their only way out of it is at some point to decide to add other areas to the list. That may come at a time when more bad cases have arisen, and then they will have a difficult case to answer. I invite the Minister to think further about this matter, but for the time being I beg to move.

[Lord Paddick (LD)]

My Lords, as my noble friend Lord Beith explained, the amendment would extend the position of trust to include people who coach, teach, train or instruct on a regular basis in dance, drama and music.

I am sure the Minister will correct me if I am wrong, but I seem to remember him saying in Committee that the Government wanted evidence that these amendments were necessary before they were able to accept them. On 20 October 2021, the Guardian reported that a former ballet teacher and principal dancer at the English National Ballet had been sentenced to nine years in prison for more than a dozen counts of sexual assault against his students—I think that is dance. On 30 September last year the Sun reported that a drama teacher had been convicted of sexually abusing girls as young as 15 over five years, abusing his position of power and targeting teens who wanted to become actresses by sexually assaulting them at the theatre group he had set up in Northamptonshire—I think that is drama. The Edinburgh Evening News reported on 22 December, just last month, that a retired music teacher in Scotland had been sentenced to eight years’ imprisonment for raping and sexually abusing former pupils—I think that is music.

There is the evidence. What is stopping the Government now? We strongly support my noble friend’s amendments.

--- Later in debate ---

We in the department led a review of the law in this area, which did not deal only with abuse in sport and religion, and we engaged with representatives from a wide range of backgrounds and sectors. After that careful review of the law, the Government have concluded that those who teach, train, supervise, instruct or coach in a sport or a religion are particularly influential over a child’s development and should be captured under the position of trust laws. That is what Clause 46 does.

[Lord Beith (LD)]

To clarify, is the noble Lord saying that when the department looked into this matter it discovered more evidence in respect of sport and religion than in other fields, or some specific evidence that made it clear that this was much more likely to occur in sport or religion?

[Lord Wolfson of Tredegar (Con)]

As I say, we discussed this with a wide range of people, and it seemed to us from looking at all the material that sport and religion are the particular areas where law at the moment should intervene. I was coming to this point. The noble Lord presented the amendment saying, “Abuse can take place in other relationships too”, and of course he is absolutely right. However, abuse can take place where there is no relationship at all, and I am afraid it can take place in lots of different relationships. The question here is when the law should intervene to prohibit automatically, regardless of the particular 17 or 19 year-old and whether any abuse is taking place, to prevent any sexual contact. For those reasons, we consider that at the moment, we should intervene—I will come to the delegated power—in sport and religion only. Those settings involve high levels of trust, influence, community recognition, power and authority, and these figures are often well-established, trusted and respected in the community.

The report of the Independent Inquiry into Child Sexual Abuse found that religious organisations

“may have a significant or even dominant influence on the lives of millions of children”

and that

“what marks religious organisations out from other institutions is the explicit purpose they have in teaching right from wrong.”

Also, both sport and religion can provide a young person with a strong sense of belonging, whether in a team, a squad, a community or a faith. Such deep feelings held by the young can provide unique opportunities for predators to exploit or manipulate and can make it more difficult for the young person or concerned relatives to report abuse.

With respect to sport specifically, the physical nature of the activities means that coaches often ostensibly have legitimate reason physically to touch the children and young persons they are coaching. A sports coach will often have opportunities for closer and more prolonged physical contact compared with other roles, and this can be manipulated by abusers. That is why, to respond to the point made by the noble Lord, Lord Pannick, the 18 and a half year-old tennis coach would be prohibited from having a relationship with a 17 and a half year-old tennis student, but the 18 and a half year-old chess coach could have such a relationship —assuming for these purposes that chess is not a sport; I do not need to decide that because it is a physical definition that is in the Act—because there is not that scope, ostensibly, for a physical relationship.

The noble Lord’s amendment addresses dance specifically. Again, let me reassure him that the definition of “sport” in Clause 46 includes types of physical recreation engaged in

“for purposes of competition or display”.

We consider that this includes dance.

On the delegated power for the Secretary of State to amend new Section 22A, we accept that new evidence may emerge that may justify legislating further. Let me reassure the House and put it on record that this power will not be used lightly, but nor will we wait until instances of abuse are brought to our attention. We will proactively monitor data on child sexual abuse to ensure that we have the evidence needed to inform policy and act decisively where required, including evidence relating to the nature of roles and the institutional or organisational context, the level of power and control, other factors which we have seen contribute to abuse including opportunities for extensive unsupervised contact, and any inherent risks posed to young people as well as any data on incidents of concern. We are establishing channels through which partners such as the police, the CPS and local authorities can share emerging evidence and highlight patterns of behaviour.

Some of the behaviour that has been mentioned this evening and in Committee is already covered under other offences within the Sexual Offences Act 2003. Let us be clear: sexual activity with someone under the age of 16 is a crime. Non-consensual sexual activity such as rape is obviously a crime. I certainly heard the word “rape” in at least one example mentioned by the noble Lord, Lord Paddick. We are not talking about that—that is the point—because rape is already a crime. We are talking about sexual activity which would otherwise be lawful and consensual. I did not quite catch all the examples, but one cited was from a newspaper in Scotland where somebody had done something. How old was the person? If they were under 16, it is already caught. Was there consent? If there was not, it is already caught. One has to be careful when one is talking about evidence. We will be proactive in looking for that evidence and, for the avoidance of any doubt, we will of course re-read the examples that he gave us.

I accept that Clause 46 does not represent everybody’s preferred approach, but we believe that, on the material that we have at the moment, our approach strikes the appropriate balance between the protection of young people and the sexual freedoms and rights otherwise granted to 16 and 17 year-olds, while still allowing for rapid responses to emerging patterns of abuse in the future. For those reasons, I respectfully invite the noble Lord to withdraw the amendment.

[Lord Wolfson of Tredegar (Con)]

I am struggling with that second point, but let me try to answer the first. On whether I am saying that anybody should be allowed to exploit a young person, the answer is no. Frankly, I do not understand how the noble Lord has reached that conclusion. There is nothing in the provisions about justifying exploitation or abuse up to the point of rape and assault. Maybe this is the confusion that he is under in relation to the second question. At the moment, if someone is caught in a position of trust—let us say, for example, a minister of religion who is 18 and a half—that person is prevented from having any sexual contact with, say, a 17 and a half year-old congregant. Before that person was ordained or appointed to the position as a minister of religion, that person could have had a sexual relationship with a 17 and a half year-old. That is why I am talking about changing the age of consent, because that 17 and a half year-old is able to sleep with an 18 and a half year-old but not if that 18 and a half year-old is, for example, her minister of religion. I hope that answers the noble Lord’s second question, although I confess I did not quite understand it because, if I may say so, it seemed to proceed from a fundamental misapprehension of what we are talking about.

[Lord Beith (LD)]

My Lords, one thing I want to say in response to the Minister is that, as I said earlier, there are many thousands of people engaged in the training of young people in many contexts, but particularly in some of these fields very close contact and continuous interchange is involved, including activities in which the contact is physical. That applies not just to sport but to teaching someone how to hold their violin and their violin bow; it applies to all sorts of activities. There are spheres too in which the relationship is affected by the authority of the training person, the desire to please that person and to be successful in the activity. The more the Minister described those activities, the more it seemed that what he described happens not just in sport and religion but in many other areas as well.

It is important that we remind society that vast numbers of people are engaged in this kind of training work entirely selflessly and giving great service to young people. They are people we recognise and support. A very small number of people do everybody else so much damage by the kind of abuse referred to in the course of the debate. Unfortunately, we still have to deal with it, which means we have to talk about it, debate it and devise laws that work for that purpose.

I would much have preferred to see a wider clause that used the concept of a position of trust in a series of places in which it is clearly relevant. The Government have preferred to retain power by statutory instrument to make extensions to the list, and the Minister, in response to my request, tried to give a bit more indication of the sort of circumstances involved. He has said that they are not just waiting for cases; they will look to the views and experience of organisations in the field. That could usefully be done. If organisations in any of the fields I have talked about respond to the Government by saying, “Yes, it would help us in our disciplinary and regulatory arrangements if this power was extended”, then I hope that is the kind of information that might lead Ministers to come before the House to make use of those powers. I certainly do not want them to be waiting for cases. I am serious in my concern that some cases will arise where abuse has taken place that otherwise falls within the definitions in this clause but where the position of trust appellation has not been applied because it is in one of the other groups—it is not sport or religion.

This is a serious problem that undermines the wonderful work that so many people do with young people, and the wonderful achievements of those young people in sport, drama, music and the arts. We have to keep it under continuous review but, at this stage, I beg leave to withdraw the amendment.

Amendment 106 withdrawn.