Lord Henley
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(12 years ago)
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Lord Henley
That this House do not insist on its Amendments 16, 17 and 18, to which the Commons have disagreed for their Reason 18A.
18A Because the Commons consider that the imposition of general restrictions of this nature on the exercise of powers of entry could undermine actions to protect public safety.
The Minister of State, Home Office (Lord Henley)
My Lords, the House will recall that Amendments 16 to 18 provide that powers of entry may be exercised only either with the agreement of the occupier of the premises in question or on the authority of a warrant unless the authority using the power,
“can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.
This restriction would be disapplied where the power of entry was exercised by a trading standards officer, a constable or a member of the Security Service, or in pursuance of the protection of a child or a vulnerable adult.
As I indicated on Report, we do not disagree with the sentiment behind these amendments. Indeed, we share their objective of seeking to roll back intrusive state powers and ensure that, where such powers are needed, they are subject to appropriate safeguards. However, although the amendments are well intentioned, we remain firmly of the view that they could hinder effective enforcement and, in so doing, undermine action to protect public safety. This view was shared by the House of Commons, which, following a reasonable debate, disagreed with your Lordships’ amendments without a Division. I note that during that debate in the Commons David Hanson said from the opposition Front Bench:
“My colleagues in another place supported the amendments, so that we could have this debate today … The Opposition will not support the amendments because we do not feel they are valuable”.—[Official Report, Commons, 19/3/12; cols. 531-32.]
As I have previously indicated, it is not what the amendments seek to achieve but the blanket approach that they adopt that creates the problem. They start off with a catch-all requirement that in all cases powers of entry may be exercised only with the consent of the occupier or on the authority of a warrant. They then go on to provide blanket exceptions to this rule.
The result is that the exemptions are either too narrow, in that they fail to capture important powers of entry that help to bring offenders to justice or save life and limb, or they are too broad. In particular, we are not persuaded that trading standards officers should in all circumstances, regardless of their motives for entry, be able to enter any premises, including people’s homes, without having either secured the consent of the occupier or obtained a warrant.
My noble friend has attempted, in part, to address the concerns that I set out on Report by seeking to add to the list of exemptions, which now includes an officer of the Serious Organised Crime Agency and by conferring on the Secretary of State a power to add further exemptions by order. In some respects we are offered an amendment in lieu that adds little to the existing provisions in Clause 40. The clause already contains an order-making power to enable additional safeguards, such as the requirement for a warrant or consent, to be added to the exercise of particular powers of entry. We do not need another delegated power to achieve a similar outcome.
In conceding that further exemptions are needed, my noble friend appears to accept that a case-by-case assessment of each power of entry is needed. That is what we are committed to doing. In conducting the review, the rebuttable presumption will be that for any powers of entry in respect of people’s homes, these should indeed be exercised only with consent or on the authority of a warrant. Where exceptions are fully justified, they will be applied on a case-by-case basis and not across the board for particular categories of state official. The review of all powers of entry will be completed, as we have made clear, within two years, and we will report to Parliament on progress at six-monthly intervals, as my honourable friend the Parliamentary Secretary made clear in another place.
The review of powers of entry will enable us to deal with the current stock of powers—the 1,300 or so powers that people complain about. Similarly, the gateway that has been established by the Home Office limits the creation of further new powers and is already making significant progress. For instance, greater safeguards have been added to all powers considered to date, including in respect of domestic dwellings, a requirement that entry is obtained either with the consent of the occupier or on the authority of a warrant, and a number of powers of entry have also already been repealed. I hope that that reassures the House that this Government are serious about dealing with the proliferation of powers of entry that we have seen over recent years and ensuring that they are subject to appropriate safeguards. When taken together, the measures that we have brought forward in this Bill and in the new gateway process will strengthen the rights and privacy of homeowners and businesses, provide greater legal certainty and ensure that legitimate law enforcement is not impeded in its duty to protect the public.
In outlining our approach, I have also set out why we cannot, in every case, demand that entry is effected only with the consent of the occupier or on the authority of a warrant and why providing a power to add exemptions simply underlines why a blanket approach will not work. I remind the House again that the Commons disagreed to these amendments after considerable debate without a vote and without seeking to offer any of its own amendments in lieu. Given that, it is time to bring this debate to a close and get on with implementing the provisions of the Bill. I commend Motion A to the House and invite my noble friend not to press his Motion A1.
Motion A1 (as an amendment to Motion A)
Lord Henley
My Lords, I start by saying to my noble friend Lord Marlesford and other noble Lords that I am grateful for the fact that he acknowledges that we are at least on the same side in that we seek to reduce the number of powers of entry and make sure that existing powers of entry have the appropriate safeguards where necessary.
I begin with a very brief history lesson. At the time when the noble Lord, Lord Butler, was Secretary to the Cabinet, I can remind him and the House that we had something of the order of 500 or 600 powers of entry. As my noble friend Lord Selsdon said, it was difficult to know exactly how many there were. Over the years, mainly after the noble Lord ceased to be Secretary to the Cabinet, we saw a rather dramatic growth in the number of powers of entry. Something of the order of about 700 new powers of entry crept in between 1997 and 2010. I am sure that there were very good reasons for many of them and that all of them went through both Houses of Parliament, because all of them would have needed primary legislation in one form or another to get them.
It might be that Parliament nodded in its duty and did not provide the appropriate safeguards and checks and balances when considering all those powers of entry. Because of the dramatic growth that we saw over those 13 years, the new coalition Government in 2010 made a commitment that we would review all existing powers of entry and do what we could to reduce those that were unnecessary, bringing in appropriate safeguards—a warrant or consent—where necessary. That is why we brought forward the provisions in this Bill in Clauses 39 to 46.
I make it clear to the House that those proposals were in respect of the existing stock of the 1,300 or so powers of entry that we had. On top of that, there is always the danger—because Governments do this—that new powers might creep in. That is why we brought in the new gateway approach in the Home Office, to be adopted by all other departments, to look at any new powers of entry that might come in and make sure that they were properly scrutinised and that Parliament looked at them appropriately as they came through in Acts of Parliament. I am grateful that my noble friend Lord Marlesford at least commended that gateway approach to the new powers, but we are largely talking about the existing powers and how we want to look at the existing stock and do what we can to reduce it.
My noble friend brought forward his amendment before. It went to the Commons, where they looked at it—and I have to say to the noble Lord, Lord Neill, that they did not look at it with a lack of respect. They gave it a very good hearing and debated it for some 45 minutes, and the fact that they did not divide on it was obviously a sign that they thought that there was sufficient agreement. It is not for the Government to decide whether matters are divided on. Certainly, considerable respect was shown to the amendment and it was debated in considerable detail in another place.
My noble friend in his amendment seeks to create a blanket approach to what should be dealt with and then accepts that that approach is wrong—and he admits it is wrong because he then brings in a blanket exemption, which surely contradicts the whole point of what he is trying to do. We are trying to conduct a review of the whole process, which will closely examine all the powers that we have and those that are necessary while adding further safeguards to others. That is the important thing. There might be some powers that we do not need—right, we will get rid of them. There might be some that we do need but which do not have the appropriate safeguards, and in that case we will look at them. We have made it clear that in conducting our review the default position will be that any powers that require entry to people’s homes must require their consent or be by warrant only. This amendment provides only a blanket rule across the board, which we do not think is the right approach.
I accept that there have been criticisms—
Lord Lester of Herne Hill
Can the Minister confirm that we are not in a vacuum while the review is taking place in that, if there were unnecessary and disproportionate searches or seizures, the Human Rights Act would require our legislation to be read properly to prevent them from being classified as unlawful searches or seizures?
Lord Henley
My noble friend is a great expert on the Human Rights Act and the House always defers to him when we discuss such matters. If there was a case of the sort that he implies, I am sure the courts would look at it in a manner that he thinks appropriate.
I am trying to make clear that we want to conduct a review over two years. I accept that there has been criticism from a number of colleagues, including my noble friend Lady Hamwee, who asked whether we could do it more quickly. The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lawson also implied that we should do it more quickly. We will try to do it as quickly as possible but, as my honourable friend said in another place, we will also update Parliament on a six-monthly basis about how we are getting on. We think that this approach is the better one—to go through all the powers one by one, from department to department. Obviously, some departments will have a bigger workload than others. I understand that my old department, Defra, has rather a lot of powers. No doubt we will encourage them to work harder, and I and my colleagues in the Home Office will encourage them to do that. I think that is the better approach, and my noble friend’s approach—to bring in a blanket approach, accept that it is wrong and then bring in blanket exemptions—is not the right way forward.
Lord Elton
Will there be an opportunity in both Houses to debate the combined report when it is laid before Parliament before decisions are taken on legislation?
Lord Henley
I would hope that, as and when each power of entry is looked at, we will remove it as appropriate. I can assure my noble friend that we have already moved about 30 or so as part of the review. Most of those will require only secondary legislation to do that. It will be an ongoing process. As I made clear earlier, we will give a six-monthly update to Parliament on how we are doing this. At the end of that process I cannot give a commitment as to exactly what we will do. Certainly I am sure that my noble friend and others will hold us to account if we do not keep to that two-year programme. As I said, we want to do it more quickly if we can.
Lord Butler of Brockwell
My Lords, I agree with a great deal of what the Minister has said, but would the Government’s objectives not be better achieved if they proceeded on the basis that powers would lapse unless a positive case could be made for them, rather than that they should remain unless a case is made to remove them?
Lord Henley
My Lords, I am a great fan of sunset clauses, and I would be more than happy to do that. It is a matter for Parliament; with any new power that comes in, Parliament must decide whether a sunset clause should be brought in. It is not within the scope of what we are debating now to bring in a sunset clause for all 1,300 powers of entry that exist. That is not the aim of my noble friend’s amendment, and it is not an idea that has been put forward by anyone else. I am sympathetic to sunset clauses, and I know that the noble Lord is sympathetic, but let us consider that with new powers that come in. It is not something that we can debate at this stage.
With those assurances about what we are doing and with the assurance that we will continue to update Parliament on how we are getting on with this, I hope that my noble friend feels able to withdraw his amendment.
Lord Marlesford
My Lords, I am most grateful to all noble Lords who have taken part in the debate. The House of Lords is always quite impressive, but the quality of the experience, knowledge and wisdom that have been shown by noble Lords speaking has been terrific. There has been a psychological thing that probably happens to all of us: there are those who want to do something and get on with it and those who say, “Well, let’s wait”. There is a place for both. However, on this question of how long it would take for a review, when my noble friend Lord Selsdon says that it took 18 months just to count the powers, I just wonder how far they will get in examining each of the 1,300 powers in 24 months.
I want to emphasise just one or two things. The first is that we are not aiming to remove any powers of entry. All we are saying is that we believe that the powers of entry, with certain exceptions, should be subject to agreement or to warrant as far as the occupier of the premises is concerned. The second—and this is where the amendment has changed—concerns what is found or felt about the provision before the powers have all been examined. My amendment does not interfere at all with the Bill’s current provision for a review. That provision will continue and it will be good to have it—I wish it godspeed, and we shall look forward to getting the reports. In the meanwhile, however, we will have achieved something. We will also have given the Government an opportunity so that if it transpires that a power has been trammelled by being subject to agreement or warrant and that has been counterproductive or undesirable in the public interest, the Government will be able to come back ad interim with an order to correct it. That is what I mean in describing the way that I have removed the blanket imposition.
In view of the comments of people such as the noble Lord, Lord Butler, and the noble and learned Baroness, Lady Butler-Sloss, I think that the general tenor is really such that the Government could do better. I would like to see whether the opinion of the House supports that approach.
“(2A) For the purposes of this section A ought to know that A’s course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress.”
Lord Henley
My Lords, I shall speak also to Commons Amendments 133A to 133C. The House will recall that at Third Reading in this House the Bill was amended to introduce two new specific offences of stalking and stalking involving fear of violence. These new offences are set out in new Sections 2A and 4A of the Protection from Harassment Act 1997. I acknowledged at the time that the new Section 4A offence needed better to reflect the psychological trauma experienced by victims. I indicated that the Government would bring forward further amendments to address this point when the Bill returned to the Commons to consider the Lords amendments.
These additional amendments were duly approved by the Commons on 15 March and it now falls to your Lordships’ House to agree to them. The amendments made in the Commons to Amendment 51, which I brought forward at Third Reading, widen the new Section 4A offence so that a course of conduct amounting to stalking that causes serious alarm or distress, which has a substantial adverse effect on a victim’s usual day-to-day activities, is also captured. These changes will mean that when a stalker’s course of conduct causes their victim to, for example, change where they socialise or to ask their friends or family to pick up their children from school because they are afraid of running into their stalker, the Section 4A offence could be made out and therefore, on conviction, result in a sentence of imprisonment of up to five years. I am confident that through these changes we have further strengthened the protection of victims of stalking. We are also sending a clear message to perpetrators that this behaviour will not be tolerated.
I am convinced that we now have workable and effective laws to bring the perpetrators of stalking to justice. Elfyn Llwyd, who chaired the recent independent inquiry on stalking, said in the debate in the Commons that the new provisions,
“show that the Government have carried out a listening exercise, and we will now have firm laws. They will prevent lives from being ruined and, crucially, from being lost”.—[Official Report, Commons, 19/3/12; col. 553.]
Before bringing forward these amendments in the Commons, my officials discussed them with the National Association of Probation Officers and Protection Against Stalking. These organisations share the concerns raised here at Third Reading about the psychological impact that stalking has on victims. As many of your Lordships will know, both NAPO and PAS have said that they support the changes we have made.
I know that that view was widely shared on all sides of this House, but it is clear that the noble Baroness, Lady Royall, has some lingering doubts, if I may put it that way, that have prompted her to table two further amendments to the Commons amendments. I seek to reassure her that those amendments are unnecessary.
The noble Baroness’s amendment to Amendment 51C seeks to include a further limb to new Section 4A to cover cases where a stalker causes a victim to fear for their personal safety or that of another. I can assure the House that where such stalking behaviour causes the victim serious alarm or distress such that it substantially affects their day-to-day activity, then it could meet the threshold for the Section 4A offence. The threshold would also be met where the behaviour causes the victim to fear violence. A third party who is made to fear for their safety could also have recourse through the existing criminal and civil law, including by pursuing an injunction or a restraining order in appropriate cases.
The Government consider that the Section 4A offence should be reserved for cases where a stalker causes the victim to fear, on at least two occasions, that violence will be used against them or where a stalker causes their victim,
“serious alarm or distress which has a substantial … effect”
on their,
“usual day-to-day activities”.
It is right that this offence, carrying a maximum sentence of five years’ imprisonment, is reserved for those stalking behaviours that are more serious and have greater impact on their victim. Of course, all cases of stalking are serious and can wreck lives, but it is important that we maintain a clear distinction and escalation between the two new offences. Prosecution under Section 4A should be reserved for the worst cases. Such cases should already be captured in the Section 4A offence and adding this limb could lower the threshold too far. If the stalking behaviour does not cause the victim to experience one of the effects as set out in Section 4A(1), a prosecution under Section 2A would be more appropriate.
Again, officials have discussed this amendment with NAPO, Protection Against Stalking and with the Association of Chief Police Officers’ stalking lead. We have expressed our view that such cases could be captured in the existing Section 4A offence as amended in the Commons, and that this should be highlighted in police training. To ensure that this issue is properly understood by police and prosecutors, officials will involve ACPO, NAPO, Protection Against Stalking and others in developing training and guidance. Officials will meet them soon to agree how to work together. I am convinced that this issue can be addressed without further changes to the legislation. We now need to get the Bill on the statute book and to work with partners to ensure that these new offences are fully effective in protecting the victims of stalking and bringing offenders to justice.
I end by saying that I am indebted to all Members of the House who have worked with us to shape this legislation. Together, we have across all parties developed workable legislation that will support the police and the courts in eradicating this awful crime. This will make a real difference to victims. I again pay tribute to noble Lords on all sides of the House, including the noble Baroness, Lady Royall, the noble Baroness, Lady Howe, who is not in her place, and my noble friend Lady Brinton, for their tireless efforts in raising these issues and ensuring that stalking victims will be properly protected by these new laws. I commend Motions B and C to the House and invite the noble Baroness not to press her Motions B1 and B2. I beg to move.
Motion B1 (as an amendment to Motion B)
Baroness Hamwee
My Lords, what we have heard today emphasises the need for training for the police and maybe other agencies, and the need to be alert to behaviour that may escalate, having started as apparently comparatively innocent. I was relieved to hear my noble friend say that these amendments are unnecessary and grateful for his explanations. Reading them earlier today, it seemed to me that they were covered in both senses. The two sets of behaviour described, of which individual B was the subject, would fit within the new sections. As regards a third party, it is likely, depending on the degree of seriousness, for other criminal offences to be involved.
As I say, I am glad to know that the amendments are unnecessary and that such behaviour will be covered. If legislation is adequate, it is important that it is not expanded to cover explicitly this sort of example because matters that are not explicitly included might then be thought to be excluded. Therefore, if the legislation covers, perhaps in a fairly technical way, the behaviours that are of concern, it could be damaging in a wider sense to spell out those behaviours in the legislation.
Lord Henley
My Lords, I can respond relatively briefly and will deal, I hope, with most of the points. First, to protect the honour of the Home Office, I correct just one point made by my noble friend Lady Brinton. She talked about there being a department in the Home Office known as “Death and Violence”. I can assure her that that is not the case. The Home Office team that leads on this is called Interpersonal Violence, which I hope my noble friend will accept is a better name than the suggestion that she put forward.
I thank the noble Baroness, Lady Royall, for accepting that this matter has been driven by Parliament. It has been cross-party and I pay tribute to all those in this House and another place—the right honourable Elfyn Llwyd and others—who have led the work on this. Perhaps I may also say how important it is that we work with others; and that is why we will continue to talk to NAPO, Protection Against Stalking and ACPO about how we bring in the right training. As the noble Baroness will be aware, my right honourable friend the Prime Minister made it clear on International Women’s Day that training will be provided, and we will work with those bodies to develop that training. It is because we are providing it that we do not believe that the noble Baroness’s amendments are necessary or appropriate. It is because we believe that we have come to a considerable degree of consensus on this that now is the moment to move on and get this Bill on the statute book.
All that I want to do at this point is respond to one matter in the example that the noble Baroness gave regarding Mary and the problems she faced. The noble Baroness said that Mary did not change her daily routine and therefore would not be captured by new Section 4A. As the noble Baroness made clear, Mary on that occasion kept records of her stalker, she did not sleep and had to speak to the police. All those are examples of day-to-day activities being affected. Therefore, new Section 4A certainly could apply in that case, and that is why it is important that we provide the police with exactly the right training, and is why I am trying to give the commitment that we will work with the bodies that we have been talking about to make sure that the right training is evolved.
I should also take on the point made by my noble friend Lady Brinton about the need within the Home Office and Ministry of Justice to make sure we change the culture appropriately—that obviously also applies to the police—in terms of understanding the importance of these matters and ensuring that prosecutions are, when appropriate, pursued with vigour, if necessary at the higher level provided by new Section 4A, or by new Section 2A in much more minor cases. I dealt with the example given by the noble Baroness because I wanted to make it clear that new Section 4A could apply even in that case.
I therefore feel that the noble Baroness’s amendments are not necessary. I hope that she will not press them and that the Bill can move on to the statute book with due speed.
Lord Mackay of Clashfern
Is the noble Lord prepared to say that the Government’s view is that the amendment of the noble Baroness, Lady Royall, is in fact included in the interpretation of their Amendment 51C?
Lord Henley
My Lords, my understanding and what I was trying to get over is that, with the introduction of appropriate training in how the police prosecute in these matters, her amendment is not necessary. I therefore think I am right in saying that what I have said would be covered by my noble and learned friend’s point.
Baroness Brinton
I apologise for casting aspersions on the Home Office. I got my departments muddled. Unfortunately, it was the Ministry of Justice that has a department with such a name.
Lord Henley
I, as always, speak for Her Majesty’s Government when I am at this Dispatch Box, but on this occasion I cannot honestly answer for the Ministry of Justice. All that I was trying to do was clear the name of my department, but I am sure that other Justice Ministers will in due course be able to respond to my noble friend’s point.
Baroness Royall of Blaisdon
My Lords, I am grateful to the Minister and to the noble Baronesses who participated in this debate. The Minister and the noble Baroness, Lady Brinton, quite rightly spoke of the critical value of training for the police and other members of the criminal justice system. It is clear that in the case cited by the noble Baroness, that of Claire Waxman, training that will bring about a change of culture is an absolutely necessary and vital part of ensuring that in future the perpetrators of stalking are truly brought to book and the new offence that we are introducing is properly used against them.
I realise that the Minister says that the case of Mary would be covered by the amendments being brought forward by the Government, and he says that my amendments are not therefore necessary. The intervention of the noble and learned Lord, Lord Mackay, is of course extremely valuable because the Minister has clearly said that it is his interpretation of the government amendments and the Bill as it stands that those cases would be covered. However, a lot of what the Minister has rightly said—and I, too, am glad about the consensus that we have achieved on the Bill—depends on the quality of the training that will be provided to the people involved in the criminal justice system. I am glad that ACPO, NAPO and Protection Against Stalking will be involved in the discussions on training but, frankly, the words of my amendments are almost belt and braces. We are often told by Bill teams and parliamentary counsel that one should not include in a Bill matters that are otiose, but I do not regard the words that I propose as otiose. It is belt and braces to ensure that while training is important, should it fall down for whatever reason, those words will be in the Bill to ensure that people such as Mary, Sally Evans and others mentioned to me by NAPO, ACPO and other charities are properly covered. Before us is a great opportunity. I pay tribute to all Members of this House and indeed the Government for moving as far as they have gone in this Bill. The consensus that we have achieved is terrific. However, I should like to ensure that the belt and braces are there, and I therefore seek the opinion of the House.
Lord Henley
That this House do agree with the Commons in their Amendments 133A, 133B and 133C.