Police, Crime, Sentencing and Courts Bill

Lord Deben Excerpts

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

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

My Lords, I am sorry to speak after the noble Lord, Lord Ponsonby. I wanted to hear what he had to say about his amendments and those in the name of the noble and learned Lord, Lord Falconer.

I speak first to the amendment to which I have put my name, Amendment 259B—on which I entirely agree with what the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, said—about excluding jurors from the operation of the provision permitting participation in criminal proceedings by remote live links.

The proposal in the Bill is that the problem of jurors taking part in criminal proceedings by live link should be dealt with by a requirement that all members of a jury taking part through a live link should be present at the same place. So the suggestion is that, by being present at the same place, the jurors would be able to decide a case whether or not they were physically present at the trial. I do not believe that suggestion is accurate or that it responds adequately to the difficulties posed by the proposal that jurors should be able to attend remotely.

In the last group we considered how important it is for jurors to be able to see and hear witnesses giving their oral testimony live, with a view to assessing the truthfulness of those witnesses and the accuracy of the evidence they give. That involves a very personal judgment about credibility and reliability. Reliance upon that judgment—the independent judgment of 12 citizens, as distinct from the individual judgment of a professional judge—is what marks out the jury system. I believe it is what has given the public confidence in the system that we all have. I do not believe that that judgment is capable of being reliably made by live link.

Post Covid, we can all see the attractions of remote hearings. As a barrister, I have appeared in many such hearings over this period, as I dare say others have—certainly the noble Lord, Lord Pannick, has. For hearings before judges alone, or before arbitral tribunals, they generally work well. Indeed, for many civil hearings, I suspect we will not go back to the system of all-oral hearings for a significant percentage of our work. That will be a matter for individual judges, arbitrators and lawyers, depending upon the particular circumstances of the cases before them.

However—this was the case that the noble and learned Lord, Lord Judge, made—even during the pandemic and despite the pressures of increasing trial backlogs, we have not gone down the road of holding jury trials without jurors being physically present to hear the evidence and being in the same place as the judge. In my view, that is for good reason, so I invite the Government to think again and to accept Amendment 259B.

On the other amendments, having heard the noble Lord, Lord Ponsonby, explain his amendment about the need for health-needs screening, I agree with the noble Lord and invite the Government to accept that, too. As for the amendment in the name of the noble and learned Lord, Lord Falconer of Thornton, I fully accept the argument that it would be unusual for the use of live links to be directed by a judge in a sensitive case involving children, but I can see an argument that some such cases might justify a direction. I see no reason not to leave it to the judge in any particular case to determine whether the use of live links would further or impede the interests of justice. In this regard, we need to remember that refusing a live-links direction may in many cases cause delay in the determination of those cases, and that such delay may lead to particular injustice in cases involving children, for whom an early determination of the issues surrounding their care is often of great importance. So, although I see the point of this amendment, I suggest that it is better to leave it to judicial discretion in cases involving children.

[Lord Deben (Con)]

My Lords, the Committee will know that, as a non-lawyer, I very often attend these debates because I do not trust lawyers to make decisions about themselves. I therefore intervene here because, on this occasion, lawyers have brought to the surface a most important issue.

I am interested in whether people believe that justice has been done, and it seems to me that extending, in these circumstances, the use of technology to overcome the presence of people in court has a fundamental issue for the generality of the public believing that justice has been done. I am a great believer in Zoom and Teams. They have made my life a great deal better and I have spent more time in the beautiful countryside of Suffolk than I had been able to do before, but I am very conscious of the fact that there are many things that you can do perfectly well—indeed, better—through these techniques and there are some things that you cannot. One of the things you cannot do is replicate the public’s confidence in the concept of a jury. The point, which was made by the previous speaker so adequately, is that it is different, and our system is different because we have this element.

I cannot believe that there are circumstances when it would be sensible for the jury to be in one place and the judge in another. Therefore, I wish to say to my noble friend, whose explanations throughout today and previous days have been remarkable—he has been able to defend some very peculiar things more effectively than most people have managed to do, certainly in the other House—simply this: we have here a position in which it is hugely important that the public should feel that justice is done. I do not believe they will if we do it this way.

As somebody who was a Minister for 16 years, I warn him that I see the civil servant here, who said to some Minister somewhere, “Better do this in case”. Some of the cases proposed are frankly incomprehensible, unlikely and totally beyond any sense—but it is the duty of civil servants to say, “Better not leave this out, Minister, lest it should happen and then we’d be in trouble”. I suggest to my noble friend that he would be in less trouble by not doing some of these things than he would be in the extreme possibility that he might need this power.

Police, Crime, Sentencing and Courts Bill

Lord Deben Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Lord Deben (Con)]

My Lords, if one is going to make a change of this kind, which, as the noble Lord, Lord Coaker, says, has not happened before, one has to have a very good reason for it. The Government have produced no good reason for it. What they have said is that there are many protests which are very difficult and awkward. There are protests which have embarrassed me considerably as chairman of the Climate Change Committee, because I have had to explain that they are right about what they are protesting against but should not be doing it in the way they are, so I think it reasonable for me to say that these amendments go far too far. We are a democratic society and if I cannot go outside here and make a noise to point out that I think a whole range of things that the Government —or any Government—are doing are unacceptable, then my human rights are very seriously impugned.

When I came into this House, I said that there were three things I wanted to talk about: the environment, Europe and human rights. I want to be able to go on protesting about the ludicrous policies on Europe. I want to go on protesting about some of the things which have not been done, and ought to be done, about the environment. I want to congratulate the Government on many of the things they have done on the environment and climate change, but I need also to have the opportunity of making it clear when one believes that what they have done is wrong. Dissent and protest are essential parts of democracy. These provisions go too far.

[The Lord Bishop of Leeds]

My Lords, I have a number of problems with this part of the Bill that are to do with form and content. The fact that these amendments were brought in at the stage they were seems an abuse of parliamentary scrutiny. Some of the debates we are having could have been sorted out had they been addressed in the normal way. That fits into a pattern of intimations about breaking the rule of law and the authoritarian complexion of the way in which some things are being done in, through or around Parliament. That is my problem with form.

On content, it seems that we would have to remove the statues of Gandhi and Mandela from Parliament Square were these provisions to go through. You cannot laud people later as being great and prophetic actors by exercising the right to dissent, at the same time as clamping down on that in the building over the road. We have heard a lot in recent debates about freedom, particularly in relation to Covid, freedom passes and things like that, but we cannot just pick and choose which freedoms are convenient to us in a democracy.

I say to the noble Lord, Lord Hain, that the dry run for Cable Street was actually the week before, in Holbeck Moor in Leeds. It would have been ruled out as well. There is a significant point to make about the word “significant”, which was mentioned earlier. How is it that in legislation we are able to use words that are so incapable of definition? If something is significant, it is “significant of” something. It is not just significant; that is meaningless as a definition. That is like when people write that something is incredible, which, if it was, would have no credibility; they actually mean the opposite. You can get away with it in ordinary parlance but not in legislation.

Police, Crime, Sentencing and Courts Bill

Lord Deben Excerpts

Consideration of Commons amendments
Thursday 31st March 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I think the noble Lord, Lord Cormack, is right to raise the important point about our constitutional obligations. I am tentative about what I am going to say because I am anxious not to act in defiance of an elected Chamber, not just for constitutional reasons but because democracy is very valuable, and we should have modesty in relation to our role in this place. However, I do feel that, at the very least, the Government are obliged to untangle some serious confusion about why the legislation in relation to protest is even necessary.

When it was originally introduced, there were grandiose claims that this was the Government responding to public concerns—a real clamour from the public—about dealing with new forms of protest. It is true that there has been a lot of anger in the public realm about new forms of protest. Anybody who objected to the amendments tabled by the Government was dismissed as “ignoring voters’ concerns”—just by objecting, in effect, they were being anti-democratic. Yet now the Minister comes back here and suggests that, in relation to the noise trigger, for example, it is a just a modest update of the law and it will not be used very often. It seems to me that the original motivation for these clauses has been lost, and we have ended up with a disproportionate and unnecessary commitment by the Government to deal with a non-problem.

There is perhaps some confusion because earlier this week, as people will have read in the newspaper, a mum was banned from driving for what was described as “nudging” some Insulate Britain protesters. She was trying to get her 11 year-old to school and was exasperated that the protesters would not move, and that the police were not acting to remove them. There was some popular backlash to the fact that this driver was the person who was prosecuted, and at a meeting I talked to people who said, “Well, the mum is not guilty of dangerous driving. The problem here was the failure of the police to police the protest.” They went on to say, “At least the Government are acting and bringing in a new law that will deal with this sort of thing.” When I explained the nature of the new laws that were being brought in, in relation to noise and static assemblies, they said, “What’s the good of that? That won’t deal with the problem of the mum and the motorway and the protester”, and they are right.

Despite reservations, I support the noble Lords, Lord Coaker and Lord Paddick, in the amended amendments that they have brought back, taking on board the modest comments that have been made. I think that these anti-protest clauses are being mis-sold to the public, who, when it is explained to them, do not see any connection between their clamour and these clauses being brought in by the Government.

If there is an issue with protest, it is possibly that the police have not consistently policed protests that have happened over the last few years with the powers that they have, and there is public concern about that. It seems to me that both these clauses, as illustrated by the points made from the Front Bench, will make the police’s job even more complicated and will compromise them politically because they will be accused of subjective interpretations of what is “too noisy” and what is the threat of a static demonstration. I think the Government will inadvertently help to politicise the police, and make the situation of protests more confusing, and they are not doing what I think they originally wanted to do, which was to assure the public that their concerns about new forms of protest would be honoured in legislation. These parts of the Bill do nothing useful for anyone.

[Lord Deben (Con)]

My Lords, I do think that we ought to consider carefully what my noble friend Lord Cormack said, but it might lead one to a different conclusion. This House is increasingly treated as if it does not really matter at all. The Government are not taking seriously very simple suggestions, when making them is our job—suggestions to make Acts work properly. Today we have had an example of what the Government can do. I thought the noble Lord, Lord Russell, put that extremely well. The Government have recognised that the sensible, continuous pressure of the House of Lords has brought them to make alterations—not exactly as the noble Lord would like, but a good way in that direction. It is notable that it has taken us all this time to do it.

What worries me—I say to my noble friend Lord Cormack that this is a serious constitutional matter—is that the deal works only if the House of Lords believes that its debates and discussions are useful and taken into account by government. What I have seen here is wholly different. This is nothing to do with my noble friend Lady Williams; it is to do with the Government as a whole. When I was Secretary of State, I would say to my Lords Minister, “These are the five things I need. Those are the 10 things I’d like to have, but if their Lordships produce good arguments for other things, then you must give way to them, because that is the purpose”. What Lords Minister today is able to do that? Yet that was the deal; that was why we were here. This is a really serious issue. It is no good the Government saying in the end, “Well, we’ll just use the majority in the House of Commons to shut you up”, when the arguments we have been bringing forward are not great arguments of state or great arguments which clash; they are about making the law work.

The other change that has taken place in the House of Commons is that Members there do not debate these Bills any longer. They do not have the hours that we used to have. When I was a Member of that House, we used to have to have 100 hours of debate before you could get a guillotine. Now we do not have to have anything like that; guillotines are automatic. So if this House does not do its job and discuss these things in detail, they will not be discussed at all. That is the constitutional issue we face today.

I will address only the one thing which I think is very clear. It is incomprehensible to have a law which gives the police the right to stop a protest because it might be too noisy. The Notes of course make it ludicrous. I am very worried about the domestic arrangements of the noble Lord, Lord Coaker, if the only thing he can discuss with his wife is the laws as presented by this Government. If I started to discuss those with my wife, I think my domestic arrangements would be very unsuitable. I merely say that the reason you go on a protest is to draw attention to something. The noble Lord rightly said, and I think I said it myself when I intervened previously, that the more popular the cause, the more likely it is that there will be noise. If I had a protest about the unfair treatment of chihuahuas, I might not get many people with me and I probably would not be stopped—but a protest on, for example, the unsatisfactory dealings with Ukrainians coming to this country might raise huge numbers. Do the chihuahuas get a campaign but the Ukrainians do not—and who makes that decision?

--- Later in debate ---

[Lord Cormack (Con)]

I am most grateful. My noble friend makes a very powerful speech and makes it very sensibly. However, I would just point out that, at the time he was giving instructions and saying, “There are five things I want, but others I’ll give way on”, the House of Lords was a very different place. It had a massive, built-in hereditary Tory majority.

[Lord Deben (Con)]

I do not think that helps the issue. All that says is that we are a different place because Parliament has decided that we should be. I am not sure that we are necessarily a better place; I would not like to draw attention to that. I am merely saying that we are a place and that we are here to make certain kinds of decisions. I have more sympathy for my noble friend the Minister than I do for almost any other Minister and I admire her enormously—which is why I really find this difficult. I really wanted to be able to say today that I support the Government, but I cannot, as somebody who came into this House saying that I would concentrate on Europe—that has been difficult—the environment and human rights. One of the first human rights is that I can walk with lots of other people to say that something is wrong. For the police to have the powers to say that we cannot, because it might be too noisy, is wrong.

[Baroness Wheatcroft (CB)]

My Lords, I am very grateful to the noble Lord, Lord Deben, for voicing the fears which I suspect many in this House share. The Government’s majority at the other end, coupled with the attitude of the Executive, would render this House redundant if it could. Today we have seen the possibility of negotiation on a couple of amendments. However, as the noble Lord, Lord Deben, and the noble Baroness, Lady Fox, have said, the right to protest is absolutely crucial to human rights. That the Government should be taking the power, even only possibly, to curtail that right is surely something that this House should fight against.

I completely agree with the noble Lord, Lord Cormack, that there are conventions—there are—and, when dealing with conventional legislation, I have no doubt that we should abide by those conventions. But, as far as I can see, this Government are determined to take powers that are, in our democracy, unconventional. I therefore believe that it is not just our right but our duty to keep trying to tell them that up with this we will not put. They may not intend to use these powers—although quite what the Home Secretary intends is anybody’s guess; certainly not to let in Ukrainian refugees, as far as I can see—but, once they are on the statute book, another Government could. It therefore seems to me that there is no doubt about it: we should hold our ground, not on every amendment that this House passes but on those where we believe we have a real duty to stand up for the democratic rights of the country.