Police, Crime, Sentencing and Courts Bill

Lord Sharpe of Epsom Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 8th December 2021 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

2: Clause 7, page 9, line 15, at end insert—
“(za) publish the strategy,”Member’s explanatory statement
This amendment requires specified authorities to publish a strategy prepared under Clause 7.

[Lord Sharpe of Epsom (Con)]

My Lords, this group of amendments responds to various recommendations made by the Delegated Powers and Regulatory Reform Committee. I am grateful to my noble friend Lord Blencathra and the other members of the committee for their careful scrutiny of the Bill. These amendments address issues across the Bill, but I hope the House will agree that it would be convenient to take them together.

Amendments 2 to 10 in Clauses 7 and 8 give effect to the DPRRC’s recommendation that provision for the publication of local strategies to prevent and reduce serious violence should be made in the Bill rather than in regulations. The amendments therefore require relevant authorities to publish their strategies, but this is subject to certain safeguards. These safeguards are that material should not be included in the strategies if the specified authorities consider that it might place the safety of any person in jeopardy, prejudice the prevention and detection of crime or the investigation or prosecution of an offence, or compromise the security of, or good order or discipline within, an educational, prison or youth custody authority. I am sure that noble Lords would agree that these are important caveats.

Amendments 36, 42, 65 and 95 respond to recommendations by the DPRRC relating to the parliamentary scrutiny of statutory guidance. Here we have accepted the committee’s recommendations in part only. There are various powers in the Bill for the Secretary of State to issue guidance in relation to the serious violence duty, offensive weapons homicide reviews, powers to tackle unauthorised encampments, and serious violence reduction orders. The DPRRC recommended that such guidance should be subject to the negative procedure, or, in the case of the SVRO guidance, the affirmative procedure.

The purpose of guidance is to aid policy implementation by supplementing legal rules. A vast range of statutory guidance is issued each year and it is important that guidance can be updated rapidly to keep pace with events. There is nothing to prevent Parliament scrutinising guidance at any time. It is therefore the Government’s view that it is not necessary to make specific provision for parliamentary scrutiny for most forms of statutory guidance, and there are plenty of precedents for this approach. To take one recent example, the Domestic Abuse Act 2021 enables the Secretary of State to issue guidance to the police in relation to domestic abuse protection orders; they are required to have regard to the guidance. Such guidance is not subject to any parliamentary procedure, and the DPRRC did not comment on that fact when the legislation was going through this House last Session.

Amendments 67 and 68 relate to the powers to attach conditions to a diversionary or community caution, specifically those which relate to the maximum hours of unpaid work, number of attendance hours and level of financial penalty. Clause 100 as currently drafted provides that only regulations increasing the maximum financial penalty and the maximum number of unpaid work or attendance hours attached to a caution will be subject to the affirmative procedure. The DPRRC recommended that regulations decreasing these maxima should also be subject to the affirmative procedure and, having considered the committee’s arguments, we agree.

Finally, Amendment 83 responds to the committee’s recommendation that the power for the Secretary of State to activate a problem-solving court pilot indefinitely should be subject to the affirmative resolution procedure. This amendment gives effect to the committee’s recommendation by separating the power to extend indefinitely from additional powers granted to the Secretary of State under Schedule 13. As such, this amendment ensures that the Secretary of State’s power to specify which courts are pilot courts for the 18-month pilot period, the cohort of offenders to be subject to the pilot arrangements, and the ability to extend a pilot for a specified period of time, will continue to be subject to the negative procedure.

I am sorry that the noble Lord, Lord Blencathra, could not be here today.

[Noble Lords]

He is here.

[Lord Sharpe of Epsom (Con)]

He is here—my apologies. In light of all I have said, I hope the House would agree that we have responded positively to the relevant recommendations from the DPRRC and will support these amendments. I beg to move.

[Baroness Whitaker (Lab)]

My Lords, I speak on behalf of my noble friend Lady Lister, who had to go to catch her train because of the postponements, and also on my own behalf.

We wanted to raise a point on government Amendment 56, which, as the Minister said, requires guidance for the police on unauthorised encampments to be laid before Parliament. This is of course welcome, but my noble friend says that she wanted to return to the current draft guidance statement that the police, alongside other public bodies,

“should not gold-plate human rights and equalities legislation”

when considering welfare issues.

When she pressed the noble Baroness, Lady Williams, on this in Committee and asked her what it meant—because, on the face of it, it appears to be an invitation to put human rights and equalities considerations to one side—I believe the noble Baroness, Lady Williams, said that the phrase was “novel” to her and she wrote to my noble friend Lady Lister about it.

In her letter, she explained that this phrase had been used in government guidance on unauthorised encampments since March 2015. But, when my noble friend Lady Lister followed the link in the letter to this guidance, it turned out to be called:

“A summary of available powers”—


which we do not think quite amounts to statutory guidance, and therefore perhaps was not subject to consultation at the time. Certainly, members of the Joint Committee on Human Rights were not aware of it, because they wrote a very forceful letter to the Minister on 17 November in which they

“strongly advise that the Government reviews the language and tone of its draft guidance with respect to its human rights obligations. Human rights are a minimum standard, which apply to all people equally. We do not and cannot ‘gold-plate’ human rights.”

Likewise, the British Association of Social Workers has written:

“We do not accept that this”—


gold-plating—

“is reasonable guidance. The wording is of no assistance to social workers or other professionals.”

It sees it as a

“disturbing attempt to water down fundamental human rights in relation to Romani and Traveller people”.

In her letter, the Minister wrote of the

“necessary balancing of the interests and rights of both Travellers and settled residents”.

But we ask her—or the appropriate ministerial colleagues —to look again at this wording in the light of the JCHR’s and the British Association of Social Workers’ responses. It would appear that they were not consulted when the “gold-plating” phrase was originally used in 2015 and I ask now whether anyone was consulted.

Also, does the 2015 document constitute statutory guidance as such? If the answer is no in either case, that strengthens the case for reconsidering the use of the term. As the body established by Parliament to provide an oversight of human rights issues makes clear, human rights

“must not be side-lined or undermined for administrative convenience”.

Will the Minister therefore give an undertaking to look again at this, ask the relevant Minister to do so, and report back to us before the Bill completes its passage through this House?

--- Later in debate ---

[Lord Rosser (Lab)]

My Lords, I too will be brief. As has been said, this group includes government amendments relating to recommendations from the Delegated Powers and Regulatory Reform Committee that the Government have accepted. It includes the requirement that strategies under the serious violence reduction duty are published, and that guidance on the series violence duty, police powers under Part 4 and serious violence reduction orders must be laid before Parliament. However, the Government have not accepted every recommendation of the DPRRC, and on some they have gone only half way. For example, the DPRRC recommended that guidance on serious violence reduction orders should be subject to the affirmative procedure, but the Government have made it subject only to the negative.

Like other noble Lords, I extend our thanks to the noble Lord, Lord Blencathra, and the Delegated Powers and Regulatory Reform Committee for the invaluable work that they do and no doubt will continue to do. We welcome the amendments in this group that go some way towards accepting a number of recommendations from the DPRRC, but it is interesting to note that, in its report on the powers in the Bill to introduce unpublished strategies and guidance without parliamentary scrutiny, the DPRRC said:

“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.”


This group of amendments introduces some improvements into the Bill, which we welcome. On that basis, we hope that the Government will be in listening mode over the next few days of debate on Report. Perhaps the next Bill that appears before us will not have such powers in it to begin with.

[Lord Sharpe of Epsom (Con)]

I thank all noble Lords who have participated in this brief debate. I do not know whether my noble friend Lord Blencathra was in his place when I started speaking, but I was praising him and his committee—I also praise him for his stealthy entrance. He asked about statutory guidance. As I said in my brief introduction, all the guidance will now be laid before Parliament, as the noble Lord, Lord Beith, noted, and the SVRO guidance will be subject to the negative procedure.

The noble Baroness, Lady Whitaker, asked the most detailed question, on behalf of her noble friend Lady Lister. She asked specifically about the comments on the gold-plating of human rights. I have a copy here of the letter that was sent to the noble Baroness, Lady Lister, and it is very clear that this is about balance:

“This language has been used in HM Government guidance on unauthorised encampments since March 2015,”


as the noble Baroness noted, but it was not statutory guidance; the Bill now provides this.

“That guidance made clear that human rights legislation does not prevent action to protect local amenities and the local environment; to maintain public order and safety; and to protect public health - for example, by preventing fly-tipping and criminal damage.


The necessary balancing of interests and rights of both travellers and settled residents reflects the position regarding qualified rights in the Human Rights Act 1998/European Convention on Human Rights … and the need to maintain good community relations under the Equality Act 2010. But operationally in the past, this may have been misunderstood by some public bodies.”


We have published in draft the guidance to be issued under Clause 65, so it is open to anyone who wishes to comment on the document to do so. We will, of course, continue to take any such comments into account before promulgating the final version of the guidance. With that, I hope that I have answered the questions, and I beg to move.

[Baroness Whitaker (Lab)]

Before the Minister sits down, who was consulted on this “gold-plating” terminology?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not know; it goes back to 2015. We will look it up for you.

Amendment 2 agreed.

Moved by

[Lord Sharpe of Epsom]

3: Clause 7, page 9, line 17, at end insert—
“(7A) A strategy under this section must not include any material that the specified authorities consider—(a) might jeopardise the safety of any person,(b) might prejudice the prevention or detection of crime or the investigation or prosecution of an offence, or (c) might compromise the security of, or good order or discipline within, an institution of a kind mentioned in the first column of a table in Schedule 2.”Member’s explanatory statement
This amendment means that specified authorities may not include certain material in a strategy published under Clause 7(7) as amended by the amendment in the name of Baroness Williams of Trafford at page 9, line 15.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

5: Clause 8, page 10, line 37, leave out “may”
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 10, line 37, page 10, line 38 and page 10, line 39 have the effect that specified authorities are required to publish a strategy prepared under Clause 8.