Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Blencathra (Con)]

My Lords, in the impossibly restricted time available, I can only advise the House on the key findings of the Delegated Powers Committee, which I am privileged to chair. We published our report yesterday, and it is already heading to be a bestseller.

I am afraid that this Bill is yet another we have studied with thoroughly inappropriate delegations which seek quite wrongly to deprive Parliament of proper scrutiny—or any scrutiny in some cases—of important and contentious matters. It is not the fault of my noble friends on the Front Bench. They inherited this delegated powers drafting mess from the Commons, and Commons Ministers of all parties, going a long way back, always worry about the politics of a Bill and never care about the delegated powers in it. I was just as guilty when I was a Minister. The Home Office has not been an habitual offender over the past few years, but some of the delegated powers in this Bill are quite unacceptable.

So who do I blame? Those who drafted it and have an overview of all our criticisms over the years. It seems that the Office of the Parliamentary Counsel has blatantly ignored everything the Delegated Powers Committee has been saying over the last five, 10, 20 years; or it has not learned the lesson from those who drafted the Environment Bill, which was absolutely exemplary in delegated powers terms.

So yet again we see in Clauses 18, 31, 64 and 140 so-called “guidance” to which people “must have regard” not getting any parliamentary scrutiny at all—not even the negative procedure. Then there is the usual excuse that, since they will consult all other interested parties, we in Parliament can be ignored. We have the incredible statement that, although this “must have regard to” guidance can be used as evidence in court, it is not binding, so it does not need to be an SI considered by Parliament. I look forward to what noble and learned Lords have to say about that—please explain it to me in simple language.

Clause 43 amends the PACE Act 1984 on pre-charge bail; but not only will Parliament not see the details, the power to make the regulations is being given to a non-statutory body, a company limited by guarantee, in fact called the College of Policing. It was created as a limited company in 2014 and the then Home Secretary, Theresa May, said that it would be put on a statutory basis when parliamentary time allowed. Seven years later, that has never happened, although it has been granted extraordinary powers to make and enforce laws in the meantime. Honourable though they undoubtedly are, this is still a group of self-appointed chief constables in a limited company making rules which the police and others must obey. I simply say, these are the same people who issued contradictory advice on the enforcement of the Covid powers, contrary to what we in Parliament had actually voted through. I suggest that, until they are legitimised in law, they should have no law-making power and anything they propose should be advanced by the Home Secretary as regulations getting the negative procedure.

On Clause 61 on serious disruption, I emphasise to the House once again that the Delegated Powers Committee has no opinion whatever on the merits or substance of any parts of the Bill. But we all know that this provision is contentious, and the Government have produced an illustrative statutory instrument giving a definition of “serious disruption”. It is only half a page long, so my committee takes the view that it should be in the Bill, with a power to amend it as and when necessary. We take a similar view on Clause 77 and believe that the provisions should be in the Bill with an amending power.

We have also made some serious criticisms of the delegated powers in Clauses 7, 8, 80, 82 and 120 which I have no time to address today.

Our report was published yesterday. I encourage all noble Lords to read it and take forward any relevant amendments to which they may be guided. I do not want answers from my noble friends today, because I know we will get a full departmental response in due course.

Yesterday I was able to stand up in this Chamber and commend the noble Lord, Lord Goldsmith, and Defra for implementing every single one of the Delegated Powers Committee recommendations in a Bill which is almost the same size as this one. Why did Defra do that? It was because, like our recommendations here, not a single one of our recommendations on the Environment Bill removed or diminished any substantive parts of the Bill. We were saying to Defra on the Environment Bill, “Put these from negative to affirmative; publish these; lay them before the House. Let’s have a bit of scrutiny—we do not want to delete anything from the Bill or add anything to it”. That is why Defra could go along with it.

All we are saying today is that the Home Office and the police will be making a rod for their own backs if they do not let Parliament have even a cursory look at highly contentious guidance and regulations.

Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My noble friend Lady Bennett of Manor Castle is unable to attend your Lordships’ Committee today, so I am proposing Amendment 30 in her place.

Along with the other amendments in this group, our amendment will improve the Government’s attempts to reduce serious violence. Youth groups, cultural groups and religious groups are just a few of the organisations that should be consulted in the exercise of the serious violence duty. There are many others too, and there will be big gaps in any serious violence reduction plan that has not consulted with and included these groups. They know their communities well, often with a different angle from other health services, local authorities and so on, and are currently not listed in the Bill—but they definitely should be. Perhaps most importantly, they can often shine a light on the failures of those other bodies with respect to how they perhaps underserve or misunderstand their communities.

So I hope the Minister will outline how youth, cultural and religious groups will be properly involved in this serious violence duty.

[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 Blencathra Excerpts

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

Moved by

[Lord Blencathra]

214: After Clause 124, insert the following new Clause—
“Sex-specific incarceration for violent and sexual offenders
After section 20 of the Gender Recognition Act 2004 insert—“20A Sex-specific incarceration(1) Where a person with a gender recognition certificate is serving a conviction for a violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.(2) Where a person with a gender recognition certificate is remanded in custody for a suspected violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.”” Member’s explanatory statement
This amends the Gender Recognition Act 2004 to ensure that prisoners with a gender recognition certificate who are suspected or convicted of violent or sexual offences are treated as their sex registered at birth with respect to housing on the prison estate.

[Lord Blencathra (Con)]

My Lords, I am moving this amendment in my name and those of my noble friends to defend the rights of female prisoners. This is not something I ever imagined I would have to do. In my 38 years in Parliament, I have always supported the rights of women, but I was never a champion because a large number of parliamentarians were far better qualified than me and I thought that women’s rights were generally headed in the right direction—not as quickly as they should be, but in the right direction nevertheless.

Now, I find that the rights of women are under the greatest threat I have seen in my lifetime. It is not just about their rights to safe places such as bathrooms, changing rooms, NHS single-sex wards and in prison; their whole existence as biological women is under existential threat as some people—nearly all men—seek to erase the word “women” from the lexicon or commandeer it for the use of men who identify as women. Let me be crystal clear: I completely support the right of men, as guaranteed in the Equality Act, to change their gender and identify as women. They must not be discriminated against. However, let us be equally clear that men who identify as the female gender are not biological women because, as has been said before, only women have a cervix and a womb, and only women bear children. It is not transphobic to point out that elementary biological fact, which has been at the root of human existence for countless millennia.

I believe that the threat against women is increasing daily. Young lesbian women are being condemned as transphobic if they refuse to have sex with men who claim to be women. What a perversion of common sense and reality that is. However, it is worse than that. The police say that there has been a doubling of crime by female paedophiles. That is a big fat exaggeration. Sexual abuse by women has increased, but it is still infinitesimally small in comparison to that by men. Lynne Owens of the National Crime Agency says that the problem of male paedophilia may be seven times higher than first thought. There has been a huge increase in male paedophiles, some of whom then describe themselves as women; of course, a thoroughly woke police force swallows that nonsense and records it as if the rape and sodomy of children was done by real women. Some of our police forces are trashing the reputation of women by accusing them of crimes committed by men. I believe that the message should go out to the police service that when a male is arrested or commits a crime, he should be recorded as male and never as female, no matter how he designates himself.

I turn to prisons, the substance of my amendment. I am afraid that the situation there is just as bad. Although I suspect that I am in a minority in this House—as I am on many things—I am not one of those who believes that women should not be sent to prison. When the crime justifies it, women should go to prison and be punished. However, that punishment should not include the threat of rape and violence from big, brutish rapists who have decided to identify as women and get sent to a women’s unit. The female prison estate is currently run as a mixed-sex institution because the MoJ’s policies permit prisoners of the male sex, where they identify as transgender and fulfil certain criteria, to be allocated to the female estate and held in women’s prisons alongside vulnerable female offenders. Eligible males include those convicted of the most serious, violent and sexual offences and those with intact male genitalia.

Among others in prison at the moment, there is a vile man—I would describe him as vile—who raped two children, got his gender recognition certificate while in prison and is now swaggering around a female prison wing. I cannot name him or his prison. I believe that women’s prisons should be separate, single-sex facilities for the safety, dignity and privacy of women in prison. Since the Corston report in 2007, it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them from both women in the wider community and male offenders. Female offenders report disproportionately high rates of previous experience of violent and sexual abuse; they also experience high rates of mental health problems. Indeed, in the previous debate, I heard the noble Lord, Lord Dubs, say that three-quarters of women in prison had suffered male violence before being sent to prison. A recent study of prisons in Scotland found a high prevalence—almost 80%—of significant head injury; these injuries were most often caused by repeated incidents of domestic abuse occurring over several years.

For many female prisoners, time in prison is often the first opportunity to tackle the complex issues around their offending, improve their health and access the services they need. Where women in prison have been the victims of sexual and violent assault, prison is often the first time they can be confident that they will be away from their male abusers. Where women in prison have been the victims of sexual and violent abuse at the hands of men, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of offence committed. It is for good reason that approaches to tackling female offending have consistently emphasised the need for trauma-responsive services.

The Ministry of Justice policy that permits prisoners of the male sex to be housed in the female estate is called The Care and Management of Individuals who are Transgender. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. The conviction, offending history, risk profile or anatomy are of no consideration.

Theoretically, a decision may be made to transfer to the male estate after risk assessment. We know of no situation where this has happened. Even the most high-risk male prisoners have remained in the female estate, including those convicted of violent and sexual offences against women and those with intact male genitalia. In respect of male prisoners who identify as transgender and who have no gender recognition certificate, initial allocation is to the male estate. The prisoner may then make an application to be transferred to a women’s prison.

In March 2021, a judicial review was brought against the Secretary of State for Justice, challenging the lawfulness of the MoJ’s policies that permit prisoners of the male sex to be housed in the female estate. Judgment was handed down in July and found that these policies are not unlawful. It would be quite extraordinary if the MoJ was found to be operating an illegal policy. However, the judgment was clear that the court had been called on to rule as to the lawfulness of the policy and not its desirability.

Lord Justice Holroyde acknowledged the negative impact of these policies on women in prison. He said

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence. I also readily accept the proposition … that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”

He also said:

“I fully understand the concerns advanced on behalf of the Claimant. Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances.”


I agree with Lord Justice Holroyde that it is both incongruous and thoroughly inappropriate. If it is lawful to house prisoners of the male sex who have been convicted of the most serious violent and sexual offences alongside women who have been the victims of violent and sexual assault, that law must change. It is wrong.

Under the Gender Recognition Act 2004, people who fulfil certain criteria are able to obtain legal recognition of their acquired gender. Legal recognition will follow from the issue of a gender recognition certificate by a gender recognition panel. A new birth certificate is also issued, with the sex marker changed to reflect the acquired gender and the name changed to the newly adopted name. There is no requirement for surgery or medical treatment to obtain a GRC.

GRCs have been obtained in prison by males convicted of violent and sexual offences who have then transferred to the female prison estate. I do not consider that the original intention of the Gender Recognition Act was to enable violent or sexual offenders of the male sex to be housed with women in prison, much less those who retain fully functioning male genitalia. I also make this point: these male prisoners want to identify as women. That is perfectly okay. Apparently, they do not want their male bodies, but every single one of them have retained their male genitalia as they swagger around female prison units. I suggest that those men, particularly those in prison, are simply faking being a woman to get access to real biological women in a female estate.

--- Later in debate ---

[Lord Paddick (LD)]

I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.

The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.

Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.

Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.

A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues a legitimate aim, including

“facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health.”

It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:

“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—


as this amendment proposes. He continued:

“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”


The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.

The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:

“the need to assess and manage all risks is repeatedly emphasised”

throughout existing MoJ policies. He continued:

“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”


Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.

The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:

“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”


He concluded:

“the policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”

This is the same case that noble Lords have been quoting from.

Yes, the Lord Justice said:

“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”


He added that some women prisoners,

“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”

This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.

There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.

The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.

[Lord Blencathra (Con)]

The noble Lord is looking at me and implying that I suggested that transgender men were a threat to children. I said no such thing at all. I quoted the case of a male rapist who had raped two children. I was not suggesting that this was endemic in the transgender community, or that they are a threat to children at all. That is not what I said, not what I implied, not what I intended.

[Lord Paddick (LD)]

I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.

The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.

--- Later in debate ---

[Lord Blencathra (Con)]

My Lords, it is customary for every Peer who has moved an amendment to say that it has been a worthwhile debate. I genuinely think it has been a worthwhile debate because, as the noble Lord, Lord Hunt of Kings Heath, said, this subject has not been properly debated in this House or in Parliament before. It is a policy invented by officials that past Ministers have signed off on. It is certainly worthy of debate.

I say to the noble Baroness, Lady Chakrabarti, that the reason so many men spoke is that so many noble Baronesses who normally sit behind her are afraid to speak on this issue. They have spoken to me privately, as have some on the Lib Dem Benches and the Cross Benches, and said, “Please raise this issue; we dare not speak out.” That is not right. It should be possible for noble Baronesses on all sides to raise this issue of women’s rights.

In some ways there has been a certain degree of consensus on three issues. There is agreement that, first, the rights of transgender prisoners must be protected; secondly, that the rights of women prisoners must be protected; and thirdly, that my amendment is a blunt instrument that fails in certain aspects and, as the noble and learned Lord, Lord Falconer, said, that I ought not to bring it back on Report. I think that, with proper discussion, I will need to bring back a radically revised amendment on Report. I thank the noble Lord, Lord Hunt of Kings Heath, the noble and learned Lord, Lord Falconer, my noble friend Lord Cormack and the noble Baroness, Lady Falkner of Margravine, for suggesting that we need to get the balance of rights correct.

The noble Baroness, Lady Brinton, said that the numbers are small, but I dismiss the view that because the numbers are small this does not matter so much. The number of transgender women in prison may be small, but the fear they create in the women’s estate is quite considerable. This is about not just the number of attacks that have happened but the fear women have of being attacked. Their rights need to be defended too. I would welcome dialogue with the Minister, my noble friends and noble Lords opposite on getting that balance right.

Since the numbers are small, why can we not have special units for men who identify as women so that they are not, as the noble Lord, Lord Pannick, rightly pointed out, forced into the male estate where they would be victims of violence in some cases, or into the women’s estate where women fear, rightly or wrongly, that they will be attacked? Since we already have some specialist units, can we not have units for men who identify as women so that they can have their own accommodation with their own like kind, people who also want to identify as women?

I urge the noble Lord, Lord Paddick, to read what I said very carefully. I did not accuse transgender women of being a threat to women or children. I quoted the case of one man who was a rapist and raped children and who, after he went to prison, decided that he wanted a GRC and to identify as a woman. That is a totally different case from what the noble Lord inadvertently suggested I said.

On this occasion, I intend to withdraw this amendment, but I would like to pick this up with the Minister, the noble Lord, Lord Hunt, my noble friend Lord Cormack and possibly the noble Baroness, Lady Falkner of Margravine, if she is permitted to do so, and discuss an amendment which would try to get the balance of rights right, so that we protect women and transgender women and so that each can feel safe in their own prison space. With those words, I beg leave to withdraw the amendment.

Amendment 214 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

Lords Hansard - Part 2 & Report stage
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.

Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

Moved by

[Lord Blencathra]

97ZA: After Clause 164, insert the following new Clause—
“Sex-specific incarceration for offenders
(1) Where a person who has undergone gender reassignment is serving a custodial sentence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(2) Where a person who has undergone gender reassignment is remanded in custody on suspicion of committing an offence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(3) Where the case-by-case assessment of a prisoner who has undergone gender reassignment determines that the prisoner should not be accommodated with prisoners of the same sex as registered at birth, separate accommodation must be provided to ensure that there is no access to or association with prisoners of the opposite sex as registered at birth.(4) This section applies whether or not the person has a gender recognition certificate.(5) Within 12 months of the passing of this Act the Secretary of State must ensure accommodation is available for the purposes of this section.”Member’s explanatory statement
This amendment would provide that all prisoners should live in accommodation provided in consideration of both their sex registered at birth and their gender identity. Prisoners with the protected characteristic of gender reassignment will ordinarily be housed according to their sex as registered at birth. On a case-by-case basis, prisoners may be allocated to a specialist transgender unit, with no contact with prisoners whose sex registered at birth was the opposite of their own.

[Lord Blencathra (Con)]

My Lords, this is my new amendment, Amendment 97ZA. I accept that my original amendment in Committee was unbalanced. I sought to protect female offenders but neglected to account for the small minority of trans women who might face unacceptable risk if housed in male prisons. My new amendment aims to afford appropriate protection to all prisoners, notwithstanding that there can be no guarantee that every prisoner will be entirely protected from risk, even within their own single-sex units. I thank my noble friend Lord Wolfson for our meetings, for the teach-in he organised and for our ongoing discussions.

Your Lordships may ask why I have brought back an amendment. The answer is that this is an important issue in its own right. The needs of women in prison matter, and these needs mandate single-sex provision. Women in prison are acknowledged to be an exceptionally vulnerable group and cannot simply choose to use a different space which remains single-sex. These reasons were discussed in the previous debate and I shall not repeat them. But this is also representative of the wider issue: the ability of legislation to maintain single-sex spaces for women. The female estate is a definitive example of a space that should be single-sex. If women in prison cannot be guaranteed single-sex spaces, no woman or girl can. Hospital wards, changing rooms, rape crisis centres, refuges and toilets in schools—I am talking about anywhere where women and girls, for reasons of dignity, privacy and safety, require single-sex spaces. I simply say this to my noble friend: if legislation is insufficient at the moment to secure single-sex provision for women in prison, all females in this country are left vulnerable.

Since my previous amendment, I have received a great many letters, from both men and women. An amendment to secure the rights of women in prison to single-sex spaces has wide support across a cross-section of the general public. Media coverage continually indicates that the general public support single-sex spaces for women and girls. Most recently, the article in the Times last week by my honourable friend Jackie Doyle-Price MP called for women’s prisons to become single-sex once more. Quite rightly, people see this as an important issue in its own right but they recognise that it is representative of the wider issue. This amendment matters not just to women in prison but for all women and girls.

The strength of evidence indicates that male and female prisoners should be housed separately. This is normal international practice, including in our own prison rules. When the policies that permit some trans women prisoners, who are of course of the male sex, to be housed alongside women in the female estate were put in place few years ago, this was essentially a live experiment. It was not grounded in data: no data demonstrated the acceptability of the impact on women in prison and on the operation of the female estate. In fact, research recently conducted on behalf of the Scottish Prison Service demonstrates that female offenders are negatively impacted when they are housed with trans women prisoners. This is notwithstanding the MoJ assertions that operational staff perceive that the policies are working well. I am pleased that the Ministry of Justice has committed to exploring opportunities for research in this area.

It was also clear from the teach-in that the MoJ believes that the ability to act differently from the current policies is constrained by current legislation. I shall not argue on this point. But if real change is to be affected, legislative change is or may be necessary. The purpose of the Gender Recognition Act was to legally recognise the “acquired gender” of transsexual people in specific sets of circumstances, in line with a judgment of the European Court of Human Rights. The GRA contains supplementary provisions in Sections 23 and 24 that empower the Secretary of State to modify the effect of a gender recognition certificate by order. The Explanatory Notes to the GRA acknowledge the possibility that, at the time of passing the GRA, there were circumstances where its unintended consequences for people might not have been realised. I suggest that the allocation of trans women prisoners with a GRC to the female estate is one such situation, and that legislation to exclude these prisoners from the female prison estate on the basis of their sex—not their gender reassignment—is both possible and warranted.

The intention of the GRA was not to render the provision of separate-sex and single-sex services for females an impossibility, to replace sex with gender or to deny the sex differences between men and women. Neither was the inclusion of gender reassignment protection as a separate protected characteristic in the Equality Act 2010. The undesirability of that should be self-evident.

A variety of concerns in respect of the previous amendment were raised by noble Lords and at the teach-in we had. These related to the vulnerability of trans women and their safety, the ability of trans women to live in their acquired gender, and the undesirability of housing trans women prisoners far from their families.

No one wishes to place any prisoner at unacceptable risk of harm. Vulnerability exists throughout the male estate, and, although female offenders characteristically exhibit particular vulnerabilities, this does not exclude the possibility that the vulnerability of some male prisoners, including trans women, may be equally high. The question for all of us is how to keep trans women safe, and that is very important. However, that is wholly separate to the question: who has the legitimate entitlement to be housed in the female estate? I accept that, for some trans women, allocation to the male estate will not be appropriate and should not happen. My revised amendment means that Her Majesty’s Prison Service will be able to assess trans women on a case-by-case basis and make decisions concerning allocation in consideration of all known risks. The wishes of the individual prisoner can be considered, as in the present policy concerning transgender prisoners.

Where a prisoner cannot be housed safely in either the general population of the male estate or with other males in a vulnerable prisoners unit, the decision can be made to house that prisoner in a specialist transgender unit. This will ensure their safety from male prisoners. Access to or association with female prisoners would not be possible. But access to women in prison is not needed to keep these prisoners safe; it is removing them from the presence of men that is required to keep them safe—not putting them in a women’s prison. I note that the MoJ states that 94% of trans women are housed in the male estate. This means that the safety of the overwhelming majority of trans women can be met in men’s prisons.

At the teach-in, the Ministry of Justice indicated that trans women may obtain a GRC while housed in the male estate. It would seem that this means that they are able to satisfy the requirement of “living as a woman” for a period of two years to the satisfaction of the gender recognition panel. The overwhelming majority of trans women are housed in the male estate, meaning that their needs as women and their rights to live as their acquired gender can be met in men’s prisons. Certainly, specialist transgender units for women, which I advocate, should be run according to the female regime and provide a canteen for female prisons.

A concern was also raised that dedicated transgender units would leave trans women far from their families. This is not an issue that affects only trans women. A 2016 Her Majesty’s Inspectorate of Prisons report found that distance from family was a common barrier to visits throughout the prison estate. Women are particularly affected. There are around 10 times the number of men’s prisons in England and Wales than women’s prisons, and female offenders are more likely to be held at a distance from their families than men. A 2019 report stated that women are typically held at distances over 20% further away from their families than men. Some women are held at considerable distances from their families: as there is no female prison in Wales, women may be held over 150 miles from home.

Prisoner allocation to specialist units may be take place, even though this results in increased distance from family. Allocation of trans women to E Wing at Downview is an example. Trans women prisoners who find themselves housed far from family should be assisted. Financial help is already available from the assisted prison visits unit to facilitate visits from close relatives and partners of prisoners who are on low incomes.

I propose expanding this provision for trans women who are held far from family. The number of trans women prisoners currently held in the female estate is very small, suggesting that the number who may be held on specialist transgender units would also be very small. The additional financial cost would therefore be modest.

The transgender prison population is growing. Data released by the MoJ at the end of last year indicate a 20% increase in the population of transgender prisoners since 2019. Their needs in prison will become more pressing. The commitment to building new estate, as outlined in the prisons White Paper, provides the opportunity to provide that transgender prisoners are properly and appropriately accommodated. New secure units can be tailored to their needs and vulnerabilities. These needs and the operation of specialist transgender units should be a focal point for the so-called future regime design, with outcome frameworks to reflect this.

--- Later in debate ---

I think I have answered all the questions that have been put to me so I shall end on this point. A number of noble Lords have put to the Government that there is public disquiet about this issue. We have put in place a policy that we think provides for the proper management of transgender prisoners and the proper protection of all women in the women’s estate. I am not going to make any apology for putting management and protection first and what is said to be public opinion—whether on Twitter or anywhere else—second. I am conscious that also in our prisons are people who have been found guilty of the most heinous crimes, such as sexual violence against children, and we do not manage those prisoners by the way that public opinion might suggest they be managed. A proper criminal justice system takes account of the considerations that I have set out. For those reasons, I invite my noble friend to withdraw the amendment.

[Lord Blencathra (Con)]

My Lords, it is normal to say when winding up that it has been an interesting debate. This one has certainly provoked more interest than I had anticipated. I thank my noble friends Lord Cormack, Lord Farmer and Lady Meyer, and the noble Baronesses, Lady Fox and Lady Jones, for their contributions.

I start with the contribution from my noble friend Lord Herbert. I do not do anti-social media—things like Twitter and so on. I am not motivated to move this out of ideology, nor because of what the media say; I am motivated to do it because I have been approached by women in prison who, rightly or wrongly, are afraid for their safety. It is right to say that it is only a small number of trans women in prisons but there are a large number of women who are afraid of them. They may be wrong to be afraid, but it is in their interests that I am working to try to make sure that they no longer have that fear.

The noble Lord, Lord Pannick, said that my amendment would mean that transgender prisoners should either be stuffed into the male estate or put into some ghastly specially segregated facility. He made it sound like something the apartheid regime would invent. That is exactly the current MoJ policy: all transgender prisoners coming into the prison estate start off in the male estate. I am not inventing that; it is the current policy, as my noble friend has said. Some 90% of trans women prisoners stay in the male estate and then some are moved to the women’s estate. They are moved to a specially segregated facility called E wing at Downview. I merely suggest in my amendment that the facilities of E wing at Downview should be extended to house more transgender prisoners.

I think the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Pannick, are acting under the impression that the vast majority of these prisoners have spent a long part of their life as trans women—that they have had hormone replacement therapy, have had operations and have been living as women for years. That is not the case; as we have seen from Scotland, only one in 12 has. We do not have the figures for England because, understandably, they are confidential, but the anecdotal evidence is that there is no one in our prisons in England with a GRC who has gone through that process, so they are not those who have lived their lives as women for 20 or 30 years.

I say to the noble and learned Lord, Lord Hope, that, if the Government were to go down my route, I perfectly well accept that a system could be built in where someone who has had hormone replacement therapy, has had surgery and has been living as a woman for X number of years may qualify on a risk-assessment basis to classify as a woman, not in biological terms but in terms of being sent to prison.

I say to the noble Lord, Lord Cashman, that it is quite wrong to categorise this amendment as stigmatising trans people as a particularly violent class. That is not the case. I made absolutely clear in my speech that many trans women prisoners could not stay in the male estate because the male prisoners would be violent towards them; they are equally or more capable of violence.

I accept that the court said that what the Prison Service is doing is lawful. On the narrow point of law considered by the court, that is correct, and one would hope that the MoJ would not have a policy that deliberately broke the law. The point of issue here is not ideology but that what is lawful and what is morally right part ways. I urge the MoJ to accept my solution, which lets trans women prisoners live their lives in prison in a safe space, and women theirs. I simply do not understand why the Lib Dems, the Labour Party and some of my own noble friends now dislike women so much that they are resolutely opposed to defending their hard-won rights. I can see how the Government have blundered into this hole, but at least I see signs from them that they have now stopped digging.

I am not going to be successful today, but I say to all my noble friends on the Front Bench, in all departments, that this policy of downgrading the rights of biological sex women is heading for the scrapheap of history. It is not on the side of science, logic, morality or common sense, and everyone outside the political bubble we are in knows that. The battle for common sense and the rights of women will intensify. I conclude by suggesting that all my noble friends and all Ministers should read the excellent article in the Times last week written by my honourable friend Jackie Doyle-Price MP. She said, inter alia:

“Sex is biological and immutable. Gender is social. The two things are distinct. And by conflating sex with gender we have created an inevitable conflict between rights based on sex with those assumed by someone with a transgender identity … We can be inclusive without compromising the rights, dignity and privacy of women.”


Those are wise words. Jackie Doyle-Price is on the side of common sense and history.

I beg leave to withdraw my amendment, not because I am wrong but because I cannot win in the numbers tonight.

Amendment 97ZA withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

Moved by

[Lord Blencathra]

104G: Clause 44, page 38, line 43, at end insert—
“(4) Part 6 of Schedule 4 does not have effect unless the College of Policing is re-established under an Act of Parliament.”

[Lord Blencathra (Con)]

My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Judge, and my noble friend Lord Hodgson of Astley Abbotts. I say to my noble friend Lord Sharpe that I am sorry that Ministers in this House once again have to take the brunt of my ire over Home Office matters for which they are not responsible and entirely blameless. I also say to the Government that I am not a natural rebel. I made the mistake of sitting in on the last debate and was utterly convinced by the arguments of the noble Lord, Lord Coaker, but nevertheless as a former Chief Whip felt that I had better support the Government, only because I had not told them in advance that I would rebel.

The College of Policing employs more than 700 people, and last year spent more than £47 million. The Bill, like others before it over the last seven years, gives the college the right to prepare guidelines to be implemented by the police, which will affect the public. In this case, it is pre-trial bail. Your Lordships may have assumed that a body called the College of Policing to which the Home Office has been granting regulatory authority is a statutory body set up by Parliament, and that perhaps you had missed the Bill setting it up when it went through this House. That is what I thought until recently, when I discovered that it has no statutory authority whatever but is a private limited company, limited by guarantee. Not many people know that, as the great Sir Michael Caine denies he ever said. It was announced by the then Home Secretary, Theresa May, on 24 October 2012, and this is what she said—sorry, this is not what she said; it was merely a Written Statement, with no questions asked:

“My Department has now legally incorporated a company limited by guarantee under the name ‘College of Policing Limited’. The college will become operational in December 2012. The college will be established on a statutory basis as soon as parliamentary time allows.”—[Official Report, Commons, 24/10/12; col. 62WS.]


Nine years and 20 Home Office Bills later, there has apparently been no time to put this powerful arm’s-length body on a statutory footing. Do your Lordships believe that this is simply an oversight? I am afraid that I am a cynical person, and I do not. I suggest that it is a deliberate attempt by the Home Office to avoid parliamentary scrutiny for this organisation.

I serve on two arm’s-length bodies and they, like dozens of others, were created by statute. It is not rocket science for the Home Office to simply copy the usual format of 10 to 15 clauses setting out the general powers of the organisation and a schedule with the technical stuff about salaries, appointments and all that sort of thing. Our statute book is full of such creations of statutory arm’s-length bodies. Indeed, the Home Office has done all the homework already; this private company, of course, has a memorandum and articles of association, which Companies House requires. It is not rocket science for the Home Office simply to lift all that from the memorandum and articles of association and add it to a Home Office Bill such as this Christmas tree one, or introduce a new one. I can conclude only that the Home Office has deliberately not done it, and it cannot say that it has had no time to do that after nine years of this limited company operating.

Let me make it clear that I do not challenge the honesty, integrity or desire of the police officers and civilians running this organisation to try to do good and reduce crime. Indeed, in my time as a Police Minister I never met a policeman who did not believe that if he or she had that little bit of extra power—to be able to take the fingerprints and DNA of everyone and keep them on file in case they are needed—they would make a huge difference in cracking down on crime. They are right, of course, but if one were to grant those powers it should be done by Parliament. I do not challenge its honesty and integrity, but I challenge its right to exist as a powerful arm’s-length body without a single minute of parliamentary time, either in the other place or in this House, devoted to considering its establishment, powers, rights and duties.

If I may say so, it gets worse. In a recent Parliamentary Answer, the Home Office confirmed that the college has put in a bid for a royal charter. Can your Lordships imagine that—a private limited company, already exempt from parliamentary creation, getting a royal charter? Who do they think they are? Of course, if it got it and if MPs or Peers—someone like me—then began to question its activity, it would say that it had a royal charter and was above repute, and how dare I question them and to mind my own business. My instinct tells me that this is simply not right.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friend Lord Blencathra for explaining the amendment, which in substance relates to the power conferred on the College of Policing to issue guidance about pre-charge bail. I recognise that my noble friend has made a wider point about the appropriateness of the College of Policing in its current guise issuing any operational guidance to the police.

The set of reforms in Schedule 4 to the Bill, known collectively—as the noble Lord, Lord Coaker, mentioned —as Kay’s law, aims to establish a pre-charge bail system which is fairer and more efficient, with the removal of the presumption against bail and changes to pre-charge bail timescales. My noble friend’s amendment would require the College of Policing to be placed on a statutory footing before it can issue guidance on pre-charge bail. In practical terms, this would mean that the guidance, and therefore the whole pre-charge bail reform package, would need to be delayed while an appropriate legislative vehicle was found for this fundamental change to the college’s status.

Guidance to underpin these changes is essential to secure the effective implementation of the reforms, and I think I should stress again that the guidance is about pre-charge bail, not court-ordered post-charge bail. Policing partners have made it clear throughout the drafting of the provisions that clear statutory guidance aimed at operational experts is required to build a system which is consistently applied across all forces.

I understand that my noble friend’s amendment probes the issue of the College of Policing’s status, but it is important to note that a number of the college’s functions have statutory underpinning. Among other things, Sections 123 to 130 of the Anti-social Behaviour, Crime and Policing Act 2014 enable the college to issue codes of practice for chief officers and guidance about the experience, qualification and training of police staff. The provisions in Schedule 4 to the Bill enabling the college to issue guidance about pre-charge bail would thus be an extension of these existing powers.

As the college is the professional body for policing, the Government consider it entirely appropriate that it should be able to issue guidance which police officers are required to have regard to when exercising functions to which the guidance relates. The Government do not believe that the fact that the college is not a body established by statute alters that fact. It is relevant, however, that the guidance to be issued under Part 6 of Schedule 4 is subject to the approval of the Home Secretary, who is, as my noble friend Lord Blencathra said, accountable to Parliament, and must be laid before Parliament. It is therefore open to either House to scrutinise the guidance at any time.

The college does hold the long-term aim of achieving royal charter status, as my noble friend noted, but the noble and learned Lord, Lord Judge, asked whether its status was being considered in any other ways. It is. The college chair, my noble friend Lord Herbert of South Downs, is currently undertaking a fundamental review of the college, which may include recommendations about its status. Obviously, the Government will consider the recommendations flowing from the review when it is published, but I am afraid I do not know when that will be, to pre-empt any questions.

As I indicated, regardless of the college’s legal status, we believe it is entirely proper that it should be able to issue guidance of this kind to which police officers must have regard. I should reiterate that the practical effect of this amendment would be unacceptably to delay the implementation of these necessary reforms, which, as the noble Lord, Lord Coaker, noted, have wide support and would better help protect the victims of crime. It is crucial that Kay’s law is delivered in a timely way, supported by robust guidance issued by the professional body for policing, and the current provisions do exactly that.

I am afraid that I cannot answer my noble friend Lord Blencathra’s specific question about when space may be found to alter that. I would be surprised if that answer surprised him, but I hope that, having had this opportunity to debate the role and status of the College of Policing, he will be content to withdraw his amendment.

[Lord Blencathra (Con)]

My Lords, I think that my noble friend has inadvertently answered the question of when it will be done. It is quite clear, reading between the lines, that the Home Office does not intend to do it ever. So do the Home Office, he and the Home Secretary still stand by the promise of the then Home Secretary in 2012 that this would be put on a statutory footing?

If I may say so, the Home Office, in drafting my noble friend’s speech, has been a bit disingenuous. It knows fine I am not opposed to the schedule. The schedule was the mechanism by which we could debate the principle of the college not being on a statutory footing. I discussed this with the Public Bill Office. I looked at various ALBs, including the two of which I am a member, and asked the staff whether I could lift 12 clauses from one of them, change the name to the College of Policing and lift the schedule. They said, “That would be 12 clauses to debate. It would be easier, Lord Blencathra, just to find a mechanism to say that the college must be put on a statutory footing before this schedule is approved.”

I am not opposed to the schedule—no one is. It was a mechanism in order that we could debate the principle. I must say that I am rather concerned by my noble friend’s reply—but also how delighted I am that, on this occasion, the noble Lord, Lord Paddick, and I are on the same side, despite some strenuous disagreements in the past few weeks. I must say to my noble friend that, if I had realised, and had had the nous and wit beforehand to discuss with the Lib Dems and possibly the Labour Party what this amendment was about, we could have had agreement tonight and I could have forced it to the vote and won it. Of course, I am not going to do that tonight, but I can tell the Home Office that this issue will not go away. I detect the mood among other parties here, and I hope among my noble friends as well, that we must honour the Home Secretary’s promise to have this body put on a statutory footing.

--- Later in debate ---

[Lord Pannick (CB)]

As the Minister said, the noble Baroness, Lady Hayman, is unable to be in her place tonight. She has asked me to say that she joins me in thanking the Minister, who has engaged with us sympathetically on this topic and secured this welcome change in the law. That is a tribute to his persuasive powers not just in this House but in government.

I hope that the Minister’s remarks tonight will receive as much publicity as his speech in Committee, which, as he said, featured not just in Hansard but elsewhere. He mentioned his appearance—or his remarks’ appearance—on “Have I Got News for You”; well, the news tonight is that this amendment has achieved a welcome change in the law that will be appreciated not just by breastfeeding women but by their partners and relatives.

[Lord Blencathra (Con)]

My Lords, I intervene to ask my noble friend a question. I listened carefully to what he said and I completely support the amendment, but does it go far enough? I cannot find any excuse or justification for anyone who is not a family member to take any photographs of a woman breastfeeding. It would seem from what my noble friend said on the amendment that mens rea has to be proved—there has to be a proven intent to get sexual gratification from it—but why should that be the case? In my view, there can be no justification for anyone outside the family—a stranger—to want to photograph a woman doing this. This is a simple question from my simple little mind.

Police, Crime, Sentencing and Courts Bill

Lord Blencathra Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Moylan, and to have put my name to his amendments both in Committee and here.

Those of us who put our names to these amendments, discussing the matter before Committee, had a number of concerns: first, the lack of any parliamentary oversight over a system in which the police were creating hate records against the names of people who had committed, it was agreed, no crime; secondly, that these records were categorised as hate incidents purely according to the perception of the complainant and that no other evidence or real inquiry was required; thirdly, that these records were disclosable in some circumstances, for example to potential employers, with all the damage that could imply for the subject of the record; and fourthly, and perhaps most importantly for some of us, that the creation of such records in such large numbers—some 120,000 over four years—without any effective oversight, and flowing from entirely lawful speech, would surely have a chilling effect on the exercise of free speech and therefore on public debate generally.

This is surely one of the most egregious potential consequences of such a process if it is not properly controlled. The case of Harry Miller demonstrates that, but there are many others, including that of a social worker called Rachel Meade who, the Times reported only last week, was facing disciplinary action and the sack for Facebook posts expressing gender-critical views. I observe that these have clearly been stated by the Court of Appeal to be protected beliefs under the Equality Act—so this is not a problem that has gone away.

The Minister mentioned the Harry Miller Court of Appeal judgment. I will quote from it briefly. The court said that

“the recording of non-crime hate incidents is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate.”

The court went on:

“The concept of a chilling effect in the context of freedom of expression is an extremely important one. It often arises in discussions about what if any restrictions on journalistic activity are lawful; but … it is equally important when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”


This is why Amendment 109E is before your Lordships’ House. It is to assert the primary importance of the Home Secretary’s code of conduct when it is drafted, stressing—and, indeed, insisting on—a proper respect for the fundamentals of free expression whenever the police are considering recording a non-crime hate incident. Those of us who support this amendment do so because we believe it is so important in the protection of public debate and free expression rights generally that your Lordships should insist that the principle is enshrined in terms in the legislation. The Minister may argue that this is taken as read and that this amendment is in some way otiose. I say in response that experience to date demonstrates the exact opposite.

[Lord Blencathra (Con)]

My Lords, I will speak to Amendment 109D to remove the negative procedure for all subsequent revisions of this guidance. I shall do that in my capacity as chair of the Delegated Powers Committee, but first I want to make some brief comments in a personal capacity on this whole, in my view, iniquitous concept of innocent people being put on a criminal records database.

As other noble Lords have said, it seems that there are 120,000 people who have not committed any crime, have not been found guilty by a court of any description and yet are held on a database with other people who have been convicted of terrorism, paedophilia, rape, murder, armed robbery and every crime on our statute book. Some may argue that it is not really a criminal record, but if an employer asks for an enhanced criminal record check, the police hand over the names of innocent people whom the police have tried and convicted. I am not convinced that their system of control is as accurate as they claim it is.

If someone complains that they have encountered a hate incident—and we see a growing mountain of these bogus claims—the police investigate. Even when no crime has been committed, the police may decide that the person should be convicted of having done a non-crime hate incident—no magistrate, no proper judge, no jury, just the police.

I will now return to the amendment in front of us in my capacity as chair of the Delegated Powers Committee —your Lordships will be relieved to know that I am being relieved of that position on Wednesday of this week when a new chair is appointed. I welcome the Home Office taking responsibility for these guidelines. If we are going to put innocent people on a criminal records list, it must be done under regulations which have proper parliamentary scrutiny every time—as these will have, at least the first time they are made.

When the Court of Appeal in the Miller case announced that the College of Policing—not a statutory body but a private limited company, as we discussed last week—had produced and implemented partly unlawful guidance, the comment from an assistant chief constable at the college was:

“We will listen to, reflect on, and review this judgment carefully and make any changes that are necessary.”


That is all right then. There is no need to bother 650 MPs or 800 Peers; this assistant chief constable will write our laws. Thank goodness the Home Office realised that it is completely wrong for the liberty and reputation of the individual to be subject to rules written by a private limited company. Thus, I partly welcome—no, largely welcome—the Home Office amendment before us today, but I am afraid it adopts the usual ploy that the Delegated Powers Committee sees in so many Bills, namely the first-time affirmative ploy. This means that the Bill says that the first set of regulations will be made by the affirmative procedure but subsequent revisions will inevitably be minor and technical. Therefore, we need not worry our pretty little parliamentary heads about them and the negative procedure will suffice.

We have seen no evidence to suggest that any subsequent revisions to this guidance will be minor or technical. Indeed, they could be substantial. Suppose, in a hypothetical instance, that the first set of regulations stipulates that these records for non-crime shall be retained for two years. A year later the Home Office issues a revised set with just one word changed: delete “two years” and substitute “10 years” or “25 years”.

The Minister may say—we get this a lot from all departments—that Ministers have no intention whatever of doing that and in the Delegated Powers Committee we always say that the intention of the current Minister is irrelevant and what the law permits them to do is the only thing that matters.

This business of recording non-crimes is such a contentious matter that we suggest that the affirmative procedure must be used on every occasion. The net result of that will be that any time the guidance is revised a Minister—usually a Lords Minister as the Commons will probably bounce it through on the nod—may have to do a 90-minute debate in your Lordships’ House. It is not a very heavy burden to impose on the Government.

The Court of Appeal said:

“The net for ‘non-crime hate speech’ is an exceptionally wide one which is designed to capture speech which is perceived to be motivated by hostility ... regardless of whether there is evidence that the speech is motivated by such hostility … There is nothing in the guidance about excluding irrational complaints, including those where there is no evidence of hostility and little, if anything, to address the chilling effect which this may have on the legitimate exercise of freedom of expression.”


I simply say that so long as these rules remain, Parliament must approve all regulations on this matter, whether it is the first set of regulations, the second, the 10th or the 50th iteration of them.

[Lord Paddick (LD)]

My Lords, as other noble Lords have said, this is a contentious issue. The noble Lord, Lord Macdonald of River Glaven, may recall from his time in a previous role a report from the probation service called From Murmur to Murder—the noble Lord is nodding—when those in the probation service decided that they would engage with racist clients to challenge their abhorrent views, because of where it might lead.

From stalking to domestic violence, to murder motivated by hatred, including terrorism, we know that non-crime activity can provide indications of individuals’ journeys towards serious violence, but the recording of such intelligence must be subject to a statutory code of practice. I have sympathy with the noble Lord, Lord Blencathra, in insisting on the affirmative procedure for any changes once the original guidance is issued. We welcome the government amendments and thank the noble Lord, Lord Moylan, for raising the issue.