Police, Crime, Sentencing and Courts Bill

Lord Paddick Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, I too thank the Minister for explaining the Bill. When the noble and learned Lord, Lord Falconer of Thoroton, began, I was going to say that I broadly agreed with him on the size and complexity of the Bill. However, I am not sure that adding provision after provision is the best way of dealing with an already over-complex and lengthy Bill. That said, the Bill’s covering such a comprehensive area—anything to do with the four areas mentioned in the Bill’s title will be within scope—simply encourages people to add more and more provisions to it.

Far be it from me to be controversial, but I want to say from the outset that there are aspects of the Bill that deserve our support. But those worthy provisions are few and far between and are overshadowed by a vast number of measures that would undermine fundamental rights, increase existing discrimination or do both. These controversial measures, which have rightly received much publicity, particularly the erosion of the rights to free speech and assembly, mean that other measures that also deserve our attention have slipped through almost unnoticed—but not any more.

This is where this House comes into its own. In Committee, we on these Benches will question and challenge every provision in the Bill that demands scrutiny. But as the noble and learned Lord, Lord Falconer, has said, we are severely hampered in our duty by the sheer size of the Bill and the number of provisions it contains. With the best will in the world, and, in my case, having spent most of the Summer Recess going through the Bill, we cannot possibly do justice to the fundamental and far-reaching changes that it seeks to bring about when so much is contained in one piece of legislation. Can the Minister say why, after more than 10 years in government, it was necessary to cram so much into one Bill?

On the specific provisions, we welcome the police covenant but we need to understand how and why it is different from the Armed Forces covenant. Protecting police officers in vehicular pursuit of dangerous criminals is right, but so is protecting innocent members of the public caught up in the chase. Of course we need to do everything that we possibly can to combat serious violence, but how are the new duties different from the existing duties of crime and disorder reduction partnerships? Who is ultimately responsible: those partnerships, or elected mayors and police and crime commissioners? This legislation seems to further blur the lines as far as ultimate responsibility is concerned.

With all the homicide reviews that exist at the moment, what is the cost-benefit analysis of adding offensive weapon homicide reviews to that list? Of course the police may need to extract information from electronic devices such as mobile phones, but should, as the Bill says,

“any responsible person who is aged over 18”

be allowed to authorise such intrusion without the consent of the owner in certain circumstances?

In 2017, we told the Government that their changes to police bail were unworkable. Eighteen clauses of the Policing and Crime Act are now all but reversed, relegated to a schedule to this Bill. What has happened to the reasons why the limits on police bail were imposed in the first place?

Measures to combat child abuse are welcome, but why has it taken so long to bring about these changes and do they go far enough?

I applaud the sentiment behind increasing the maximum penalty for a minor assault, causing no injury, to an emergency worker. It should not be an accepted part of an emergency worker’s role, or that of a shop worker for that matter, to be assaulted. But as with all the many and various provisions in this Bill that seek to increase custodial sentences, where is the evidence that someone will think twice, in the heat of the moment, about assaulting a police officer because the maximum penalty has gone from one year to two years, particularly when this Bill also increases the potential maximum penalty for damaging a bunch of flowers placed on a memorial to 10 years’ imprisonment? What message does that send to our emergency workers?

We on these Benches support provisions where the evidence shows that they are necessary and that they will work. We do not believe in sending messages through legislation that will fall largely on deaf ears. It is the culture in society, and among some of the judiciary, that seems to accept assault as part of the job for emergency workers that needs to change. We need existing penalties imposed, rather than yet more conditional discharges or minor fines that ignore the existing or increased maximum penalties.

As the Minister attempted to do, noble Lords will notice I am going through the Bill systematically. I am only on Clause 46 of 117 clauses, and I have not even got to the most controversial parts of the Bill yet, so let me skip over those aspects that we will not be skipping over in Committee and simply highlight some of the most concerning aspects of the Bill in the home affairs arena.

Imposing conditions on public processions and assemblies not only unreasonably curtails the right to free speech and assembly but would place the police in a position that is likely to undermine the whole basis of British policing—that of policing by consent. Like the provisions on unauthorised encampments, there is little or no evidence that existing provisions are inadequate, and substantial evidence that this will add to further discrimination against minorities. We would also contest the Government’s assertion that the police have called for these changes.

A complex system of police cautions appears to make the police judge and jury in their own court, while removing useful provisions such as on-the-spot fines for minor offences, such as dropping litter, and simple cautions where the salutary effect of being arrested and detained by the police is sufficient to deter vast numbers of otherwise law-abiding citizens from transgressing again.

For reasons of time, I will leave my noble friends to talk about most of the justice provisions, but serious crime reduction orders are yet another provision that undermines fundamental principles of British justice and are likely to impact disproportionately on minority communities. To allow the police to stop and search someone, for a renewable two-year period, on the basis of no information or intelligence whatever that they have anything on them that they should not be in possession of, simply because an accomplice convicted with them had a knife on them, even if it was not used in the course of the offence and even if no evidence was presented during the trial but because subsequently, on the balance of probabilities, the judge thinks that the accomplice, who the defendant was with, may have had a knife, is as unreasonable as it is complicated. The Minister said that this would be applied to those convicted of knife crime. Perhaps she would clarify that this is the case, because that is not my understanding. It is for somebody convicted of any offence where it is believed on the balance of probabilities that one of the defendants had a knife in their possession at the time.

I have been able to touch only the surface of this Bill; goodness knows what Back-Benchers in this debate are going to do with only five minutes. This Bill, quite rightly, is going to take some time, and we on these Benches are not going to let it pass without thorough scrutiny of each and every provision that demands this House’s attention.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I am not sure whether the knocking sound behind us has been someone trying to get in or someone trying to get out of the Chamber.

The House recently established a new Justice and Home Affairs Committee, which I am lucky enough to chair. We are currently looking at new technologies and their application in the law—wider than the Bill, but very pertinent to it and to crime prevention and reduction, and to policing and sentencing. Artificial insemination—

[Lord Paddick (LD)]

Oh!

[Baroness Hamwee (LD)]

I hope Hansard does not repeat that.

Artificial intelligence has huge potential benefits and raises huge concerns, and it is not anticipating the work of the committee to refer to them this afternoon. For instance, collaboration between authorities—Part 2 of the Bill—requires the sharing of information. Will this contribute to profiling and predictive policing? Predictive policing algorithms identify likely crime hot spots; officers are deployed there, and so more stop and search takes place and more crime is reported. It is a feedback loop; a self-fulfilling prophecy which can teach the algorithm to alert the user to particular geographical areas, communities and ethnicities. It has been put to the committee that it is important to involve at a very early stage of the process, and in a meaningful way, members of the communities that are likely to be at the sharp end of these algorithms, and not to leave it to people such as the witness or me—a white, middle-class, university-educated person, who is unlikely, one hopes, to be profiled as a future risk—because even with the best will in the world, we might not spot some of these problems and risks. A tick-box exercise is not enough.

Trust in systems translates to trust in authorities and in government itself—or, of course, the converse. The Bill permits the disclosure of data, but who owns it? What consents are required? Who knows about disclosure? We all expect some information—for instance, that between us and our medical professionals—to remain confidential. Transparency is important at an individual level, as well as more broadly. A defendant, or indeed someone questioned, will find it difficult to establish what technology—what combination of facial recognition technology, number plate recognition, predictive techniques—has led to his being identified as a suspect. If he cannot identify it, he cannot challenge it. How are we to ensure governance, regulation, accountability and scrutiny on an ongoing basis in the case of machine learning?

The technology has to be procured, and it will be procured from the private sector, whose interests are not the same as the public sector’s, and it is differently regulated, if at all. How can we be sure that purchasing authorities in the public sector understand what they are procuring? In the US, some police departments accepted a free trial of body-worn cameras, but they came with an obligation to be part of the manufacturer’s data ecosystem, including an obligation to use that company’s software and store data on its servers.

It is said that we need “human override”, but humans can get it wrong too. Human operators need to understand the limitations of particular technology to avoid overreliance on it or misinterpretation; they need to retain their critical factors.

These issues apply to identification, the extraction of information from electronic devices, monitoring and more that is in the Bill. They are the context for the development of policing and sentencing, such as the new cautions; for scrutiny, both general and in particular cases; and for our assessment of ethical considerations. We should be clear that there are clear principles to be applied. The National Audit Office has just reported on the national law enforcement data programme from a value-for-money point of view, of course, but there are other costs. The NAO mentioned, as I have, trust and the cost of damaging it. AI impacts society, communities, democracy and individual rights. We must be clear about what we are doing and why.