Police, Crime, Sentencing and Courts Bill

Lord Cashman Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Cashman (Non-Afl)]

My Lords, I was not going to speak to this amendment, but like the noble Baroness who spoke before me, having listened I am so minded. I will study the amendment very carefully, but a balance has to be struck. That is always most difficult on issues of human rights and freedom of speech.

We have to deal with the reality that hate speech, whether intended as hate speech or not, can often incite physical acts of violence. During the pandemic we have seen not only homophobia—as a gay man I have a particular interest in that, but my interest is in all physical hate crimes—but an enormous rise in physical hate crimes, some of them reported as happening on the crowded Underground or in domestic situations, because people are in much closer quarters than they would otherwise be.

My reason for speaking is to add a note of caution about how we proceed. I will study the amendment in detail, as I said, but we must respect that speech that could be defined as hate speech, or perhaps is not, can often encourage individuals to take actions against people who they feel should not be within their communities or do not belong.

[Baroness Noakes (Con)]

My Lords, I support my noble friend Lord Moylan’s amendments in this group. Somehow, we have ended up in a position where freedom of speech—a precious part of our way of life—has been seriously constrained by something the police have invented themselves around perceptions of hostility. I find it incomprehensible that the Government have allowed the police to carve out this territory unchecked. Why has the College of Policing—a wholly unaccountable body—been allowed to invent a wholly new form of recording of behaviour that, by definition, is not criminal? Can my noble friend the Minister explain how we got here?

The recording of non-crime hate incidents is not trivial. It drains police resources from the other things they should be doing: reducing knife crime; actually solving crimes rather than recording them; or making women feel safe on our streets—just a few of the things that ordinary people think are more important. As we have heard, those who have non-crime hate incidents recorded against them are often completely unaware that it has happened, which, if nothing else, is a denial of justice. The information can be kept indefinitely and, most chillingly, can be reported to third parties under the Disclosure and Barring Service. This means that the police have created for themselves the ability to wreck people’s careers.

We live in a society where the expression of views that others disagree with is becoming dangerous. The case of Dr Kathleen Stock is the latest example of this. Disagreement is too often and too rapidly equated with hate or hostility. The mere existence of non-crime hate reporting fuels this intolerance. The police are actively encouraging non-crime hate reporting by giving a platform to people who claim to be offended by the views of others. It is a cancer in our society that we should eliminate before it becomes dangerously pervasive.

Amendment 106 is a complex amendment and I pay tribute to my noble friend Lord Moylan for his clear introduction of it. I hope that my noble friend the Minister will not hide behind a critique of the amendment but engage positively with the substance of the issues that my noble friend and others have raised.

Police, Crime, Sentencing and Courts Bill

Lord Cashman Excerpts

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

Moved by

[Lord Cashman]

266: After Clause 170, insert the following new Clause—
“Disregards and pardons for convictions etc. of certain offences
(1) The Protection of Freedoms Act 2012 is amended as follows.(2) In section 92 (power of Secretary of State to disregard convictions or cautions)—(a) in subsection (1)(b), omit “or”,(b) in subsection (1)(c), at the end insert “or”,(c) after subsection (1)(c), insert—“(d) any other offence which falls within subsection (1A),”,(d) after subsection (1), insert—“(1A) An offence falls within this subsection if the offence— (a) regulated, or was used in practice to regulate, sexual activity between persons of the same sex, and (b) either—(i) has been repealed or, in the case of an offence at common law, abolished, or(ii) has not been repealed or abolished but once covered sexual activity between persons of the same sex of a type which, or in circumstances which, would not amount to the offence on the day on which this subsection comes into force.(1B) Where an offence of the type described in subsection (1A) covers or once covered activity other than sexual activity between persons of the same sex, the offence falls within subsection (1A) only to the extent that it once covered sexual activity between persons of the same sex.(1C) In this section, “sexual activity between persons of the same sex” includes—(a) any physical or affectionate activity between persons of the same sex which is of a type which is characteristic of persons involved in an intimate personal relationship,(b) conduct intended to introduce or procure such activity.”,(e) in subsection (3)(a), before the words “the other person” insert “in respect of an offence mentioned in subsection (1)(a)-(c)”,(f) in subsection (3)(b), substitute the full stop with “, or”,(g) after subsection (3)(b), insert—“(c) in respect of an offence that falls within subsection (1A) the conduct constituting the offence, if occurring in the same circumstances, would not be an offence on the day on which this subsection comes into force.”” Member’s explanatory statement
The purpose of this new Clause is to extend the current disregard and pardon schemes in England and Wales to enable individuals who were convicted of or cautioned for offences because of engaging in same-sex sexual acts, of a kind that would be lawful today, to apply to have a conviction or caution disregarded and, if successful, be pardoned.

[Lord Cashman (Non-Afl)]

My Lords, I speak in favour of Amendments 266 and 267 and pay tribute to the work of my noble friend Lord Lexden and Professor Paul Johnson of York in doing so. Due to the lateness of the time I want to focus exactly on what our amendments do: they are focused on the pardons and disregards scheme. In 2012 the scheme was introduced to enable those living with a caution or conviction for a now-repealed homosexual offence to have that caution or conviction disregarded. In 2017 a further scheme was introduced to provide those so cautioned or convicted, both living and dead, with a pardon. A pardon, aside from its legal status, is a strong, symbolic apology to each and every person who has been wronged.

However, the disregard and pardon schemes in England and Wales are significantly flawed because they encompass only a small fraction of the laws that, over the decades and centuries, have immiserated the lives of gay and bisexual people. For five years I have worked closely with my noble friend Lord Lexden and, as I said, with Professor Paul Johnson at the University of York.

Significant problems, as I said, remain in this disregard and pardon scheme. The amendments before your Lordships would cover, for instance, now-repealed criminal offences such as the offence of solicitation by men, which was used to entrap gay and bisexual men, sometimes for doing nothing more than chatting up another adult man. The amendments would also cover the offences in the repealed service discipline Acts, which were once used to prosecute and punish consensual same-sex relationships. Those living with cautions or convictions for these and other relevant offences would be able to apply for a disregard and, if successful, be pardoned. Those who have died will be posthumously pardoned.

It is important that I am absolutely clear on one point: no one who was cautioned or convicted in respect of conduct that would be an offence today would be able to attain a disregard or receive a pardon. Our amendments to the Bill contain the strongest safeguards to ensure that those who committed crimes that today remain crimes cannot take advantage of, or benefit from, the disregard and pardon scheme. Equally, the extension of the disregard scheme that we propose means that it should be decided on a case-by-case basis by the Secretary of State, who would grant a disregard only if satisfied that the conduct in question would not be an offence today.

I could speak longer and in greater detail on crimes that have been perpetrated against homosexual men and bisexual men over 500 years, but I will say nothing more. I beg to move the amendment.

[Lord Lexden (Con)]

My Lords, I endorse all that my noble friend Lord Cashman has just said. We have been close allies, as he mentioned, for five years, in a sustained campaign to bring far more gay people within the scope of a hugely important scheme, through which they can attain disregards and pardons for offences that have been rightly overturned by Parliament. The House will understand how earnestly we hope that the end of our campaign is at last in sight.

Our amendments include provisions originally incorporated in amendments to the Armed Forces Bill, now completing its passage through the House. The provisions in question have now been embodied in these amendments. This has been done on the advice of the two Ministers concerned—my noble friends Lady Goldie and Lady Williams—with whom most helpful conversations have been held.

I refer to the provisions that relate to the Armed Forces. More gay members of our Armed Forces need the belated release from past injustice that our proposal will provide. Many were routinely punished, sometimes with imprisonment, under the service discipline offences, for actions such as disgraceful conduct for engaging in consensual same-sex activity, even when, after 1967, this was perfectly legal for civilians. They must now have the redress that our amendments would provide. Medals have been restored to former gay service personnel. Their reputations must be fully restored, too, by the removal of the stains that they should never have borne in the first place.

It was through initiatives in this House that the disregard and pardon scheme was significantly extended, five years ago. It is immensely gratifying to know that wide support exists across the House today for the scheme’s further enlargement to bring redress to many more gay people who have suffered grave injustice, particularly former gallant members of our Armed Forces, who served our country in peace and in war.

--- Later in debate ---

I know that the noble Lord, Lord Cashman, and my noble friend Lord Lexden are impatient for this work to be completed. I am very impatient—we started this five years ago—and, in a nutshell, I do not want to let this legislative opportunity pass. If the noble Lord, Lord Cashman, would be content to withdraw his amendment today, I can assure him that the Government will give sympathetic consideration to the case that he and others have made ahead of the next stage.

[Lord Cashman (Non-Afl)]

My Lords, I thank all noble Lords who have spoken and pay tribute to the Minister, my noble friend Lady Williams. Brevity is the soul of wit, but tonight we have proven that it can also deliver that which is right and just. We will await the outcome of discussions and, as one would expect, reserve the right to bring forward proposals on Report if necessary. I beg leave to withdraw the amendment.

Amendment 266 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Cashman Excerpts

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

Any male who wishes to transition is free to do so. In a tolerant society I would expect our approach to be, “Wear what you want, change your names and pronouns as you like and, of course, express your gender identity”. However, none of this changes someone’s sex, and people should not have expectations of the same rights as women. If any trans prisoners are mistreated in the male estate, prison authorities should punish perpetrators and protect the victims, of course. But we need to untangle this humane response from the often-bullying demand that we deny biological reality or that the rights of transgender women can be used to sideline women’s rights to single-sex provision—an important and hard-fought-for right which I as a woman am not prepared to sell out just for political expediency or because it is unpopular. If necessary, special provision should be made for transgender prisoners, of course, and maybe the details, as people have described them, are not what one would want. However, an attempt at resolving this in a humane way is why this amendment is so important. It is a practical and pragmatic solution for transgender prisoners who feel unsafe on the male estate, but it does not force women to give up their rights, or compromise women and same-sex provision on the women’s estate.

[Lord Cashman (Non-Afl)]

My Lords, I rise to speak against this amendment. We should remind ourselves that when we talk about trans women and trans men, we are talking about men and women who have faced very difficult choices about their identity and whom they believe themselves to be. Once they face that choice and make the decision, the transition is a very lengthy process and, again, it is not undertaken lightly because, as we have heard, so often it leads to gender reassignment.

I occasionally go on Twitter. I have read the tweets and received messages from people who, in relation to what we are discussing tonight, have said that if they thought that they were going to prison as a trans woman or a trans man, they would rather commit suicide than face what they believe would be inhumane treatment within the United Kingdom Prison Service. We have to deal with these fears. We are being asked to deal with fears on both sides of this argument, and I want us to deal with both equally. The balancing of rights always poses for us the greatest problem, but I believe that the Ministry of Justice, in its policy on assessing trans prisoners, has got it absolutely right.

It is late and we have other important work to do, so I will begin to wind up. But I wish to associate myself wholeheartedly with the comments of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick. I could go through the policy section by section stating why I believe it is right. I am not going to do that, but if your Lordships wished to return to it, I would do so.

I will finish with these reflections. This amendment, even though it has been placed in good faith and, as the mover said, with good intention, deeply concerns me because it perpetrates the stereotype of trans women and trans men as sexual predators—as a threat to other women, and trans men as a threat to the wider society. It also, as was said in debate on the previous amendment, creates further inequalities; it does not reduce them.

[Baroness Meyer (Con)]

My Lords, I support this amendment, and the first thing I want to say is that we are talking only about men who have not transitioned to women, which is quite different.

Although we have come a long way since the 2007 Corston report to improve conditions for women in prisons, we are now failing them. Indeed, something has recently gone badly wrong. Women prisoners have a right to the security of a single-sex space. By definition, women are deprived of this security if men are admitted to their prison, including trans women prisoners of male sex, whether or not they have the benefit of a GRC. By the same token, a women’s prison is no place for vulnerable at-risk males. Prison policy must provide for the protection of everybody, and this amendment makes that clear.

How then have we allowed prison policy to be captured by a concern for the protection of trans prisoners at the cost of imprisoned women’s most fundamental rights? There is no balance or fairness in that. The answer of course is that government departments have allowed themselves to be influenced, even intimidated, by noisy and modish pressure groups, whose wilful ignorance of basic science has all the features of a cult.

I have never visited or been to a prison, but as a woman I can imagine how it must be to be incarcerated and threatened. On this note, I very much support this amendment and thank my noble friends Lord Blencathra, Lord Farmer and Lord Cormack for tabling it.

Police, Crime, Sentencing and Courts Bill

Lord Cashman Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Cashman (Non-Afl)]

My Lords, it is a great pleasure to speak in support of these two amendments and to follow the Minister, who has, throughout the six years, made it seem a bit like fun, and so time flew past. Joking aside, her commitment from the very beginning has never been in question.

To put these amendments into context, for nearly 500 years this House routinely passed hateful legislation that damaged, and in many cases destroyed, the lives of gay people. Many of the measures that this House passed, century after century, are well known. The Acts of 1533 and 1855 are now infamous, but a battery of lesser-known laws ensured that gay people were systematically fettered within a vile and oppressive regime of regulation that prevented them living full lives.

Police, Crime, Sentencing and Courts Bill

Lord Cashman Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I remember looking at this 307-page Bill—or at least it was 307 pages to begin with—in August and wondering how on earth to tackle it. I was reminded that the way to eat an elephant is one piece at a time, which is the approach we took. This was about five Bills stapled together, except the PPO could not staple them together because it was too big. The Bill returns to the other place considerably improved, although you cannot make a silk purse out a sow’s ear—these are separate metaphors; I am not mixing them—or should I say a boar’s ear in these days?

I shall not resist what the Minister has said about the Bill. As far as we on these Benches are concerned, the existing legislation to control protest was adequate, and the measures that we have removed from the Bill were not necessary in the first place. The majority of the police consider that a lack of police officers is the limiting factor when it comes to policing of protests rather than a lack of legislation.

I would normally thank the Minister and the Bill team for their engagement, but, certainly, I am not alone on these Benches, at least as far as the home affairs side of things is concerned, in feeling that the Government have not reached out to us as much as they could or should have done. None the less, we have all been in this together over a considerable period, and I am grateful for the time that the Government have given in allowing us to debate these issues.

I thank the Official Opposition, both the leadership and Back-Benchers, the Cross- Benchers, non-affiliated Peers and the Greens for their support and co-operation. In particular, I thank Elizabeth Plummer and Grace Wright for their invaluable help on the Bill, as well as all the outside organisations which helpfully provided us with briefings. We would not have done any of this without that help, and we hope that the Government will see the improvements that we have made to the Bill as improvements when it is considered by the other place.

[Lord Cashman (Lab)]

My Lords, as other noble Lords have said, the Bill has been much improved. I pay particular thanks to the noble Baroness, Lady Williams of Trafford, for working over six years with me and my friend, the noble Lord, Lord Lexden, in widening the pardons and the disregards for historical homosexual offences, including in the Armed Forces. It is truly historic when a state apologises for what it has done and reaches back over 500 years. It is the end of a six-year campaign that the noble Baroness, Lady Williams, has been an active part of. I cannot thank her and the Bill team enough, and indeed colleagues and the team in the Armed Forces. I also put on record our thanks to Professor Paul Johnson, the country’s leading expert on this. Finally, it might have been a six-year campaign, but some of us have campaigned for more than 33 years, not for ourselves but so that injustices can at last be put right.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will try not to repeat too much of what my noble friend Lord Paddick said. He pointed out—it is not a new point—that this has been a long and difficult Bill. I am bound to say that we must all hope that such a mammoth Bill, with such a wide range of diverse topics shoehorned into a single piece of legislation, will never be put before Parliament again. It has taken too many days, with too little time for the content involved and too much pressure, not just on MPs and Peers but on parliamentary staff, officials and those many organisations that seek to brief us about legislation. For us here, there have been too many early starts and too many late nights. It has been a very difficult experience.

None the less, I completely agree that the House has done its job well. We are very grateful to the ministerial team and their officials. On justice issues, I am, of course, particularly grateful to the noble Lord, Lord Wolfson, for the care, courtesy, approachability and engagement, not to say humour, that he has shown in our discussions. We have had some significant successes, from our point of view, on breastfeeding voyeurism and common assault in the context of domestic abuse. We have had some limited progress—my goodness, it is limited—on IPPs. That is clearly not the end of the story.

On Home Office issues, we are grateful to the noble Baroness, Lady Williams, for her care and the comprehensively courteous way she has dealt with the House, although I am bound to say that I share my noble friend Lord Paddick’s view that we have felt that she has not been able, on behalf of the Government, to make the concessions she perhaps might have liked to have made in some areas.

These Ministers illustrate the pressure there has been on all of us. In this context, I mention the tireless and efficient work of my noble friend Lord Paddick, who has borne the brunt of days and weeks of debate over many hours and days of sitting, and there have been many more days of preparation.

Before the Bill finally passes, we on these Benches regard it as largely profoundly regressive. On human rights issues, the House must expect Liberal Democrats and others in the Opposition to continue robustly to defend individual liberty in a way that we do not believe the Bill does. On justice, we will keep the pressure up for a humane sentencing system dedicated to rehabilitation and reform, combined with increasing use of community sentences. We will continue to work on women’s justice, where it seems that we are accepting very slow progress when we should be looking for dramatic improvement.