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Policing and Crime Bill

Volume 778: debated on Wednesday 18 January 2017

Commons Reasons and Amendments

Motion A

Moved by

That this House do not insist on its Amendments 24 and 159, to which the Commons have disagreed for their Reason 24A.

24A: Because Lords Amendment 24 would involve a charge on public funds and Lords Amendment 159 is consequential on that Amendment; and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

My Lords, as the House is aware, Amendment 24 would require the Prime Minister to proceed with what is commonly referred to as the Leveson 2 inquiry into the relationships between the police and the media. When the House last debated this issue at Report stage on 30 November, I drew the House’s attention to the likely financial implications of the new clause, given that part 1 of the Leveson inquiry cost in excess of £5 million. In disagreeing with Amendments 24 and 159, the House of Commons has done so on the basis of financial privilege. This was the second occasion on which the Commons has rejected—both times by a substantial majority—an amendment to the Bill on this issue. The Companion to the Standing Orders makes it clear that in such cases the Lords do not insist on their amendment.

To that extent, I therefore welcome Motion A1 in the name of the noble Baroness, Lady O’Neill, but while Amendment 24B is clearly different in terms to Amendment 24, it none the less still seeks to bind Ministers’ hands and effectively compels the Government to proceed with part 2 of the Leveson inquiry. This is not how the Inquiries Act 2005 is intended to operate, and it is difficult to see why we should make special provision for one particular inquiry established under that Act. The 2005 Act already includes provision for changes to be made to the terms of reference of an inquiry and for the termination of an inquiry. Under the Act, the responsible Minister must consult the chair of the inquiry before changing the terms of reference or terminating the inquiry and must then notify Parliament.

In the same way as a Minister of the Crown is best placed to decide whether to establish an inquiry under the 2005 Act, we believe that the responsible Minister is also best placed to determine the public interest both for and against the continuation of an inquiry. Accordingly, we should not now be putting in place additional hurdles over and above those already set out in the 2005 Act.

I want to stress that, in putting forward Motion A, the Government’s case goes wider than simply one of cost. As I argued on Report, the Government are firmly of the view that, given the extent of the criminal investigations related to this issue that have taken place since the Leveson inquiry was established, and given the implementation of the recommendations following part 1, including reforms within the police and the press, it is appropriate that we now consider whether proceeding with part 2 of the inquiry is appropriate, proportionate and in the public interest.

It is for this reason that we launched a consultation on 1 November to help inform our further consideration of this issue. That consultation closed on 10 January, and it is estimated that we have received more than 140,000 individual responses as well as a petition estimated to contain more than 130,000 signatures. Noble Lords will be aware that an application has been made to judicially review the consultation. While I cannot comment on the ongoing legal proceedings, the Government have committed not to take any final decisions relating to the consultation until these legal proceedings have concluded.

Given the process that we have set in train for considering whether to proceed with Leveson part 2, and the fact that further legislation is not required should we decide to proceed with the inquiry, I put it to noble Lords that there are further good grounds for not continuing to press these amendments. As I have said, the elected House has already rejected an amendment on this issue on two separate occasions. I put it to noble Lords that we should not now send back to the Commons a revised amendment which would simply invite a further rejection. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

24B: After Clause 26, insert the following new Clause—

“Public inquiries into police conduct etc: requirement for approval for termination or changes

(1) A Minister of the Crown may not terminate, or change the terms of reference of, a relevant inquiry unless—

(a) each House of Parliament approves a proposal laid by the Minister for the termination or change, and

(b) the chair of the inquiry consents in writing.

(2) In subsection (1), “relevant inquiry” means an inquiry under the Inquiries Act 2005 whose terms of reference include matters relating to police conduct connected with the press industry.”

24C: Clause 150, page 171, line 16, at end insert—

“( ) section (Public inquiries into police conduct etc: requirement for approval for termination or changes),”

My Lords, we have been on this terrain a number of times. I understand the Minister’s objection that there should not be a charge on public funds. Therefore, these amendments do not propose any charge on public funds that has not already been agreed by Parliament. I therefore think that that reason does not now hold.

We know that the status quo is unacceptable and that the form of press regulation that we now have is unstable and needs to be clear in supporting freedom of speech and the future possibility of democratic debate. That is a wider question and I will not go into the details here.

However, there is a second procedural issue which the Minister needs to address. When Parliament has already reached agreement, as it has on this matter, surely it is not acceptable to have a retrospective consultation. Consultation should take place before Parliament determines a matter. In this case, the consultation is retrospective. For that reason, we should not leave matters as they are. I beg to move.

My Lords, I support the remarks of the noble Baroness, Lady O’Neill of Bengarve. If anybody is in any doubt about the need for Leveson 2, which was intended to be an inquiry into the potential for corrupt practice between the police and the press, let me say that, with the former Prime Minister, David Cameron, the then leader of the Opposition, Ed Miliband, and the former Deputy Prime Minister, Nick Clegg, I met with the family of Milly Dowler. The Sunday before that series of meetings took place, Mr Dowler received a phone call from Surrey Police to tell him that the News of the World had told Surrey Police at the time of Milly Dowler’s disappearance that it had hacked into Milly Dowler’s voicemail and retrieved information from it. Surrey Police did nothing at all to prosecute the News of the World over that issue, and it was only the day before that series of meetings that Surrey Police told Mr Dowler that it had known all along that the News of the World had hacked into Milly Dowler’s voicemail. This is the sort of matter that we have not got to the bottom of yet, and Leveson 2 should be held in order to establish what happened.

On financial privilege, I agree with the noble Baroness, Lady O’Neill of Bengarve. Parliament has already committed to the expenditure for Leveson 2; the amendment simply says that it is Parliament itself that should decide that that money should not be spent. The amendment would not involve additional money which has not previously been committed.

However, there is an issue with the wording of the amendment. Our reading of the amendment, if correct, suggests that as the chair of the inquiry, Lord Justice Leveson could override the view of both Houses of Parliament, in that if both Houses voted not to hold Leveson 2 but Lord Justice Leveson himself disagreed with that, the inquiry would still go ahead. We feel that that is a defect in the amendment. Clearly, there will be an opportunity for that to be corrected if we support the amendment today and it goes to the other end, but I hope that the noble Baroness will consider that carefully in considering whether we are on firm enough ground to divide the House on the amendment.

I cannot stress strongly enough from our side how important we think Leveson 2 is and how it needs to take place. We will take every opportunity we are offered to ensure that the Government hold the Leveson 2 inquiry.

Like, I imagine, many other Members of this House, I have received an email from Margaret Aspinall in her capacity as chairwoman of the Hillsborough Family Support Group, asking me to support this amendment. I will not repeat the terms of the email, which I believe has been widely circulated, but it is an indication of the widespread and heartfelt concern that Leveson part 2 might not proceed.

The Leveson inquiry was set up with cross-party agreement and firm commitments from the then Conservative Prime Minister that Leveson part 2 would take place. Let us be clear: Leveson part 2 was in the agreed terms of reference of the Leveson inquiry. The words in the terms of reference for part 2 conclude with:

“In the light of these inquiries, to consider the implications for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies—and to recommend what actions, if any, should be taken”.

When the Lords amendment on Leveson part 2 was considered in the Commons last week, the Government said that,

“given the extent of the criminal investigations into phone hacking and other illegal practices by the press that have taken place since the Leveson inquiry was established, and given the implementation of the recommendations following part 1, including reforms within the police and the press, the Government must consider whether proceeding with part 2 of the inquiry is appropriate, proportionate and in the public interest”.—[Official Report, Commons, 10/1/17; col. 247.]

Those are words with which we are uncomfortable. They sound like the words of a Government who have already decided they do not wish to proceed with part 2 and are looking for their public consultation, which has now concluded, to give them a cloak of respectability for going back on previous firm pledges that part 2 of Leveson would take place.

The inquiries under the terms of reference of Leveson part 2 have not taken place, and thus neither have we had, nor, I would suggest, if this Government think they can get away with it, will we have the considered implications, in the light of those inquiries, for the relationships between newspaper organisations and the police, prosecuting authorities and relevant regulatory bodies with recommendations on what actions, if any, should be taken, called for and provided for under the terms of reference of Leveson part 2.

The Government appear in effect to have decided that they already know what would emerge from the Leveson part 2 inquiries and, likewise, what the recommendations would be without those inquiries taking place and recommendations being made. Frankly, it begins to look as though some powerful individuals and organisations behind the scenes know that they have something to hide and are determined to stop Leveson part 2 and, with it, the prospect of it all coming out into the open.

When the Lords amendment on Leveson part 2 was considered in the Commons, the Speaker certified it as engaging financial privilege, and that is the reason the Commons has given for disagreeing with it. Whether the amendment before us today would likewise be deemed as engaging financial privilege is not something on which I have any standing. However the amendment, which I saw for the first time only at a very late stage, does say that Leveson part 2 proceeds unless both Houses of Parliament and the chairman of the inquiry agree that it should not.

We are thus in a situation where, if both Houses decided that Leveson part 2 should not proceed—I sincerely hope they would not so decide—that decision would mean nothing if the chairman of the inquiry was not of the same view. I think that however strongly we may feel that Leveson part 2 should proceed, we are in difficult territory if basically we say that the view of the chairman of an inquiry that Leveson part 2 should proceed can override a decision by both Houses of Parliament that it should not proceed, particularly when at heart the issue is whether a clear and unambiguous promise made by a Conservative Prime Minister, with cross-party agreement, that Leveson part 2 would proceed can be tossed aside. That is the kind of issue that Parliament has to address and determine.

We feel very strongly that Leveson part 2 should proceed and that cross-party agreements and associated prime ministerial promises should be honoured and not ditched by this Government. We are unhappy with the wording of the amendment. However, whatever the outcome, we will continue to pursue all credible opportunities to ensure that the pressure is maintained and that Leveson part 2 takes place.

My Lords, many victims of phone hacking, harassment and press intrusion are relying on part 2 of Leveson to proceed and to provide answers to suspicions of corruption between the press and public officials, including the police. Many noble Lords will have received correspondence from the Hillsborough Family Support Group and from Jacqui Hames. Those letters are quite concerning and show the need for further understanding of what happened and what went wrong so that we can appreciate whether adequate measures are in place to ensure that that kind of activity does not happen again.

My family has an interest in part 2 being carried through, as promised by our previous Prime Minister. Dozens of other families and individuals have been affected and also want answers. It does seem fair that we have the inquiry. The misinformation by some newspapers leading up to the close of the consultation may indeed have led to a very large number of formulaic responses. I hope that Her Majesty’s Government will have the wisdom and moral courage to stand up for what is right in this situation and to go through with part 2. I find it very difficult to believe that financial privilege is really the reason for the current caution in this matter. I support the amendment.

My Lords, I will speak briefly to the amendment in the name of the noble Baroness, Lady O’Neill. On two occasions, this House has previously considered the subject of whether Leveson 2 should proceed and, on both, came down firmly in favour of it going ahead. Whether or not the noble Baroness decides to test the opinion of the House today, it is important that the Government be reminded that your Lordships’ House is not going to let the matter drop.

Some very pertinent questions remain unanswered. I draw the House’s attention to just one of the terms of reference for Leveson 2 and the important issues that remain unresolved. The sixth term of reference is:

“To inquire into the extent of corporate governance and management failures at News International and other newspaper organisations, and the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International”.

It is essential that, in such a vital industry as the press, the extent and nature of corporate governance and management failures be established. This is underscored by the fact that many of the leading executives are still in post, have returned to their post or retain key roles in the industry. These include the chief executive of News UK, the editor-in-chief of Associated Newspapers and the director of legal affairs at the Telegraph, who had the equivalent post at Trinity Mirror during the phone hacking scandal and its cover-up.

The questions that need addressing are as follows. First, how did it come to be that phone hacking and the unlawful blagging of personal data persisted on such an industrial scale at certain titles for so long; in the case of News UK and Trinity Mirror for at least 10 years, and for several years after journalists at both companies were first questioned by the police under Operation Glade in early 2004? Secondly, how and why was phone hacking and the unlawful blagging of personal data covered up at some of the largest newspapers, in the face of emerging evidence that executives knew about the practice and some findings and admissions in the civil courts to that effect? Thirdly, is it appropriate that no executive has lost their job over the corporate governance and management failures that took place? Has there been a cover-up of the cover-up of wrongdoing?

I will not delay the House further as I suspect noble Lords would like to move on to other matters. Suffice it so say that there are several other topics that Leveson 2 is scheduled to examine and they are of equal importance to the one I have highlighted. Leveson 2 is needed to inquire into suspicious matters affecting our police, our newspapers and our politicians. Since the completion of part 1 of Lord Leveson’s inquiry, the case for part 2 has become even stronger.

My Lords, I declare an interest as a regular adviser to the press on regulatory matters. It has not yet been mentioned today, but your Lordships may wish to take into account that, since Leveson was instituted, there have been large numbers of criminal trials and civil proceedings in which the conduct of the press and the police has been on trial. I am far from convinced that the time, expense and use of judicial resources that will be required by Leveson part 2 are therefore justified. However, your Lordships do not need to decide that issue today—it is the very matter under consultation by the Secretary of State. If the Secretary of State’s answer is unsatisfactory to noble Lords, this House and the other place are perfectly entitled to, and no doubt will, reconsider the matter.

The noble Lord, Lord Rosser, mentioned the unsatisfactory element of the amendment of the noble Baroness, Lady O’Neill: that it appears to give Lord Justice Leveson a veto over the views of Parliament. I hope that when considering the consultation issues, the Secretary of State will privately talk to Sir Brian Leveson and take his view as to whether he thinks, with all of his enormous experience, that Leveson 2 would be justified. I cannot support the Motion of the noble Baroness, Lady O’Neill.

When I was young at the Bar there used to be a judge whose concurring judgments were commendably brief—he would simply say, “I agree”. I can say that about the speech of the noble Lord, Lord Pannick—I agree with him—and would add a few words. I declare an interest because I have given evidence in the consultation on why Section 40 is, in my view, arbitrary, discriminatory and contrary to freedom of speech and should not be brought into force. I have not given evidence on the other question in the consultation to which the noble Lord, Lord Pannick, referred, upon which many views have been expressed. I agree with what the noble Lord said about that.

As I have said again and again in debates in this House, Parliament has not shown itself to be fair minded in the way it amended two Bills in order to create a scheme to bully the newspapers into entering a regulatory framework other than the one now being admirably well conducted by Lord Justice Moses—IPSO. Contrary to what the noble Baroness, Lady O’Neill, has said, we now have an effective system of voluntary press regulation and the state and politicians ought to give it breathing space. I wish to make that clear.

When I was young I began believing in the philosophy of John Stuart Mill. That is why I am a Liberal. I remain a Liberal today, and that is why I am sympathetic to the Government’s position.

My Lords, I shall respond first to the point made by the noble Lord, Lord Pannick. He is right to assert that Sir Brian Leveson will be consulted formally in due course in his role as the inquiry chair before any decision is taken. The noble Lord also made a point about the cost and other issues that have already been addressed. Lord Justice Leveson said:

“Before leaving the Ruling, I add one further comment … If the transparent way in which the Inquiry has been conducted, the Report and the response by government and the press (along with a new acceptable regulatory regime) addresses the public concern, at the conclusion of any trial or trials, consideration can be given by everyone to the value to be gained from a further inquiry into Part 2. That inquiry will involve yet more enormous cost (both to the public purse and the participants); it will trawl over material then more years out of date and is likely to take longer than the present Inquiry which has not over focussed on individual conduct”.

On the point made by the noble Baroness, Lady O’Neill, about Parliament voting on part 2 of the inquiry, in fact Parliament did not vote on part 2; the inquiry was established by Ministers under the powers of the 2005 Act. Parliament voted on Section 40, but in this Motion we are talking not about Section 40, but about Leveson 2.

On the point made by the noble Lord, Lord Rosser, about the Government already deciding to abandon part 2, as I hope I have explained, we have not made a decision on this; we want to take a view on it as part of the ongoing consultation. It is five years since the inquiry was established and since the scope of part 2 was set. We think a consultation is needed before a decision is made on whether proceeding with part 2 of the inquiry, on either its original or its amended terms of reference, is still in the public interest. In response to the point from the noble Lord, Lord Pannick, as I said, we will consult with Sir Brian Leveson formally in his role as the inquiry chair before any decision is taken.

My Lords, I thank the Minister for her reply and other noble Lords who have helped illuminate the issue we recur to. The noble Lord, Lord Lester, is perhaps a little optimistic in imagining that IPSO is a model of self-regulation. Perhaps he meant to say a model of self-interested regulation. The point is that Leveson provides not regulation, but an audit of the standard of self-regulation. As we all know, IPSO has refused to have its process audited. Its so-called independent review of what it did was to terms of reference that it provided and funded by itself. Just as we think a free market requires companies that are—

I am sorry for interrupting the noble Baroness, but is she aware that the independent review was conducted by a very senior former Permanent Secretary?

I am aware of that and know him. I admire him and what he did in Northern Ireland. He is an admirable person. I comment just on the terms of reference.

Self-regulation is something anybody would concede can reasonably be subject to audit. We allow companies in a free market to proceed as they wish, but they have to have their accounts audited. It is no different when we say that a free press should also be willing to subject itself to proper standards of audit. That, in a sense, is the area of debate. We should be very careful to keep self-regulation distinct from audit.

Quality matters, as does Leveson 2. We will return to this terrain and I do not think this is the end of the story, but I will withdraw the Motion because it has one or two deficiencies we need to deal with. It is not at all adequate to imagine that we can deal with these matters by having a consultation after a parliamentary decision. That is essentially the reason why I feel strongly that this is not the way to go; however, I beg leave to withdraw the Motion.

Motion A1 withdrawn.

Motion A agreed.

Motion B

Moved by

That this House do not insist on its Amendments 96 and 302, to which the Commons have disagreed for their Reason 96A.

96A: Because Lords Amendment 96 would involve a charge on public funds and Lords Amendment 302 is consequential on that Amendment; and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

My Lords, when we last debated what is now Amendment 96 on Report in December, I pointed to its potentially significant financial implications. The House of Commons has disagreed with the amendment on the basis of financial privilege. Given the normal conventions of your Lordships’ House, I trust that noble Lords will not insist on it.

However, let me assure noble Lords that this is by no means the end of the matter. While, in the usual way, the House of Commons has cited financial privilege as the only reason for disagreeing with the amendment, it has never been our contention that this is the sole ground for our believing that the new clause should not be added to the Bill. The Government’s view remains that the amendment is premature in that it pre-empts the outcome of the review by Bishop James Jones into the experience of the Hillsborough families and the Government’s subsequent consideration of Bishop Jones’s findings.

The noble Lord, Lord Rosser, and others have argued that the issue goes wider than Hillsborough. We do not dispute that, but the experience of the Hillsborough families, which will include the issue of legal representation at the original and subsequent inquests, is highly relevant to the broader question and it is right therefore that we take Bishop Jones’s current review into account in deciding this question.

As noble Lords may have seen, the review’s terms of reference were published earlier today. They state:

“The Review and Report will cover the history of the Hillsborough families’ experiences throughout the whole period, ranging from the conduct of past police investigations, through their engagement with public authorities, to the current investigations”.

The report will therefore cover a wide range of issues, including, as I have said, the families’ experiences of the various legal proceedings. Bishop James Jones will present his final report to the Home Secretary, including any points of learning that he may choose to highlight for the Home Secretary’s consideration.

It is envisaged that Bishop Jones will complete his review and produce his report in the spring of this year. I can assure the House that the Government will then give very careful consideration to his conclusions and any points of learning contained in his report.

In the knowledge that this issue remains firmly on the Government’s agenda and that there will, I am sure, be opportunities to debate it further in the light of the report, I invite the House to agree to Motion B. I beg to move.

I accept that the Commons Speaker has also certified the Lords amendment on this issue of parity of funding as engaging financial privilege and that the Commons reason for disagreeing with the amendment is that it would involve a charge on public funds. I want nevertheless to raise one or two points with the Government in light of what the Minister has said.

During consideration of the amendment in the Commons last week, the Minister there referred to the report by Bishop James Jones and said:

“Our view remains that we should await the report, expected this spring, from Bishop James Jones on the experiences of the Hillsborough families. The Opposition have argued that this issue goes beyond Hillsborough. I do not dispute that, but the experiences of the Hillsborough families will have significant relevance for other families facing different tragic circumstances, and the issue of legal representation at inquests will undoubtedly be one aspect of those experiences. Bishop James’s report will provide learning that could be of general application, so it is entirely right that we do not now seek to pre-empt his review, but instead consider this issue in the light of his conclusions”.—[Official Report, Commons, 10/1/17; col. 249.]

Those words make it pretty clear that Bishop James Jones has not been asked to look at the general issue of representation and funding at inquests where the police are represented, which was the subject of the Lords amendment. He has been asked to look at the experiences of the Hillsborough families. The Minister in the Commons stated that the report would provide learning that could be of general application.

Will the Minister say quite clearly one way or the other whether the Government consider that the terms of reference which Bishop James Jones has been given require him also to look at the issue of representation and funding at inquests generally where the police are represented? Alternatively, if the Government consider the terms of reference to be ambiguous on this point, has Bishop James Jones now been asked by the Government to address in his review the issue of representation and funding for families generally and not confine himself to the experiences of the Hillsborough families? Bearing in mind the way the Government have used the existence of the Bishop James Jones review and the forthcoming report as an argument for not going down the road of the amendment that was passed in this House, which deals with the position at inquests generally, I think there will be some concern if, when the report comes out, it is clear that it relates only to the experiences of the Hillsborough families and that the issue of whether it should or could have wider implications for representation and funding for families at inquests generally has not been considered. I would be grateful for some very clear and specific answers from the Government to all the questions I have just asked.

My Lords, I will make some brief observations. When the Government come to consider the recommendations concerning funding at inquests, I hope they will agree to the concept of parity of funding, for all the reasons that have been ventilated on previous occasions. But I repeat what I have said to your Lordships’ House before about the triggering mechanism: I do not believe that the police and crime commissioner should be the trigger for that. The coroner should be the trigger for it. There are three very brief reasons for saying that.

First, the coroner is much better placed to form a view as to the relevance and importance of the representation in question. I do not see that the police and crime commissioner would necessarily have access to the relevant information. Secondly and differently, in some inquests, where the conduct of the police or, indeed, the police and crime commissioner could itself be in question, there is a danger of a conflict of interests. Thirdly, sometimes the integrity of the decision of the commissioner will be in question. What happens when the commissioner is facing an election in short order? He or she may well make a decision influenced by the electoral consequences of that decision. All these things seem to suggest very powerfully that the trigger should be the decision of the coroner, not of the police and crime commissioner.

My Lords, the noble Lord, Lord Rosser, seemed to suggest that the Government are using the Bishop Jones report as some sort of excuse to not respond to what is suggested by the amendment. Of course, I will hear what my noble friend has to say, but as I understand the position, the question is being considered very seriously by the Government but it would be rather strange not to consider a report of this magnitude dealing with the best-known example of a series of inquests with improved legal representation before coming to the conclusion, to which they may or may not come, that a response to the amendment is appropriate.

I thank noble Lords who have made points on this Motion. My noble friend Lord Faulks is absolutely right that the whole point of establishing an inquiry or a review—one of such magnitude on an event that will be ever seared on people’s minds; that is, the horrors of Hillsborough—is to learn the lessons of that event so that they can be applied to similar cases in the future. The noble Lord, Lord Laming, is not in the Chamber, but I was reflecting on the lessons that local authorities learned from the terrible death of Victoria Climbié at the hands of her relatives. These reviews always have that wider learning that can be applied in the future. The terms of reference do not require Bishop Jones to look wider but the learning from the review will have wider application.

I understand the point made by my noble friend Lord Hailsham about the coroner. We talked at length both in Committee and on Report about an independent assessment of these matters. Of course, for me to respond about whether or not that is the right way would pre-empt the review so I will not go there. But I hope that noble Lords find those comments helpful.

Motion agreed.

Motion C

Moved by

That this House do not insist on its Amendments 134 and 305, and do agree with the Commons in their Amendments 134A and 305A in lieu.

134A: After Clause 143, page 164, line 9, at end insert—“Sentences for offences of putting people in fear of violence etc

(1) In the Protection from Harassment Act 1997 —

(a) in section 4 (putting people in fear of violence), in subsection (4)(a), for “five years” substitute “ten years”;

(b) in section 4A (stalking involving fear of violence or serious alarm or distress), in subsection (5)(a), for “five years” substitute “ten years”.

(2) In the Crime and Disorder Act 1998, in section 32 (racially or religiously aggravated harassment etc), in subsection (4)(b) (which specifies the penalty on conviction on indictment for an offence under that section which consists of a racially or religiously aggravated offence under section 4 or 4A of the Protection from Harassment Act 1997), for “seven years” substitute “14 years”.

(3) The amendments made by this section apply only in relation to an offence committed on or after the day on which this section comes into force.

(4) Where the course of conduct constituting an offence is found to have occurred over a period of 2 or more days, or at some time during a period of 2 or more days, the offence must be taken for the purposes of subsection (3) to have been committed on the last of those days.”

305A: In the Title, line 29, after “marriage;” insert “to increase the maximum sentences of imprisonment for certain offences of putting people in fear of violence etc;”

My Lords, the House will recall that Amendment 134 sought to increase the maximum penalty for the more serious stalking offence, where the behaviour of the offender puts a person in fear of violence, from the current five years to 10 years. The amendment would also increase the maximum penalty for the racially or religiously aggravated version of the offence from the current 10 years to 14 years. I would like to thank the noble Baroness, Lady Royall, but she is not in her place so I thank her in her absence, for introducing that amendment and explaining her concerns about the current maximum penalties during the debate on this amendment on Report.

The Government have reflected carefully on that debate and wish to ensure that the criminal justice system deals with these offences properly. The Government continue to keep maximum penalties under review and are ready to increase them where there is evidence that they are not sufficient to protect victims. Current sentencing practice suggests that, in the majority of cases, the maximum penalty of five years is sufficient to deal with serious stalking. In a small number of the most serious cases, however, courts have sentenced near to the current maximum. For those most serious cases, we are persuaded that judges should be able to pass a higher sentence than the current five-year maximum. This would afford greater protection to victims and be commensurate with the serious harm caused by these cases. The Government therefore tabled Amendment 134A, to which the Commons agreed, which replicates with some fine tuning the provisions of the noble Baroness’s amendment.

However, we are going further. As I said during debate on Report, we are keen to retain consistency between penalties for related offences. The Commons amendment in lieu will also therefore increase the maximum penalty for the related Section 4 harassment offence of putting a person in fear of violence. In line with standard practice, Amendment 134A also provides that the increase in maximum penalties for these offences will apply only to crimes committed on or after the date of commencement. As the Commons amendment in lieu builds on Lords Amendment 134, I trust that in the absence of the noble Baroness, Lady Royall, the whole House will be content with the substitution. I therefore beg to move.

My Lords, I am sorry to say that I really disagree with my noble friend on this matter. There is absolutely no justification for increasing the maximum sentence, and I have two reasons for saying that. First, I do not believe that the increase will provide an additional deterrent. Either the person in question is rational, in which case a maximum sentence of five years is a sufficient deterrent, or they are not rational, in which case it will make precious little difference. I note my noble friend’s point that the judges have rarely sentenced at the higher end of the existing maximum. My other point is a general one. I am very concerned about overcrowding in prisons. There has been a tendency to increase the sentences imposed by the courts. The newspapers and Parliament are responsible for that in part, and I do not wish to see Parliament increasing the pressure on our prisons. This is a small contribution to that, and I am bound to say I am against it.

My Lords, I notice that in Amendment 134A the proposal is to increase the penalty from seven to 14 years for what is described as an offence,

“which consists of a racially or religiously aggravated offence under section 4 … of the Protection from Harassment Act 1997”.

Before we agree to this increase in the penalty, will the Minister enlighten us about what, particularly, a religiously motivated offence might be? Specifically—and I have asked this before in Written Questions and had unsatisfactory Answers from the Government—could such an offence be caused by a Christian preaching the supreme divinity of Christ and therefore denying the supremacy of Muhammad? Would various assembled Muslims be free to regard that as a religiously aggravated offence under this section?

I shall be very brief and say that, unlike, apparently, some noble Lords, we welcome the Commons Amendment.

My Lords, I shall make a clarification. Muslims accept all religions that preceded Islam and accept all the texts that preceded it. Therefore, there would be no likelihood of such an event occurring.

My Lords, to address the point made by my noble friend Lord Hailsham about the maximum penalties and overcrowding in prisons, the prison population has remained relatively stable since 2010. The Justice Secretary is clear that she wants to see more early intervention and a reduction in reoffending. To that end, we have launched a White Paper outlining our plans to make prisons places of safety and reform, and we have announced a comprehensive review of our probation system.

On the point that the noble Lord, Lord Pearson of Rannoch, made, I fear I will disappoint him again. It is a matter for the court and the CPS to determine the points that he makes.

Motion agreed.

Motion D

Moved by

That this House do not insist on its Amendments 136 to 142 and 307, to which the Commons have disagreed for their Reason 136A.

136A: Because legislation already makes provision for victims of crime and it would not be appropriate to alter that provision without further analysis of the benefits and costs involved.

My Lords, the elected House has disagreed with these Lords amendments by a substantial majority of 100. In inviting this House not to insist on these amendments, the Government recognise that there are legitimate concerns about the operation of the victims’ code—I stress that—and that there is scope for improvement, but I put it to noble Lords that seeking to shoehorn these new clauses into the Bill when they have not had the benefit of detailed scrutiny either in this House or in the other place is not an appropriate way forward. This House rightly prides itself on its effective scrutiny of legislation. In the case of these amendments, however, we have had what amounts to, at best, a short Second Reading-style debate on the case for strengthening victims’ rights.

While the underlying objective of these amendments—namely, improving the experience of victims and witnesses in the criminal justice system—is one we can all wholeheartedly support, the Government continue to have serious concerns regarding their substance. I welcome the fact that the noble Baroness, Lady Brinton, now wishes to focus on just two amendments rather than on all seven new clauses added to the Bill on Report but, as with the others, we foresee a number of problems with Amendments 137 and 138. I thank her for meeting me yesterday, together with the noble Lords, Lord Paddick, Lord Rosser and Lord Tunnicliffe, but, as we discussed in relation to Amendment 137, the victims’ code—a statutory code of practice—includes a wide range of entitlements for victims of crime, including being entitled to receive information on their case. For example, under the code, victims should be informed about: the police investigation, such as if a suspect is arrested and charged and any bail conditions imposed; if a suspect is to be prosecuted or given an out-of-court disposal; the time, date, location and outcome of any court hearings; and any appeal by an offender against his or her conviction or sentence.

In addition, if an offender has committed a violent or sexual crime and has been sentenced to 12 months or more in prison, victims can access the victim contact scheme to be provided with updates on important changes in offenders’ sentences—for example, if they have moved to an open prison, and how and when they will be released. Victims are entitled make a complaint if they do not receive the information and services they are entitled to, and to receive a full response from the relevant service provider. If dissatisfied with the response, they can refer their complaints to the Parliamentary and Health Service Ombudsman.

Amendment 137 also includes provision for children and vulnerable adults to give evidence in court via a live video link or from behind a screen. However, this is unnecessary as the Youth Justice and Criminal Evidence Act 1999 already provides a statutory framework for such measures and more.

The amendment would also require the police to inform victims of a suspect’s previous convictions which resulted in a custodial sentence and certain previous offences committed outside the United Kingdom. Currently, under the domestic violence disclosure scheme, police officers already have the power in the course of their duties to disclose previous convictions where it is necessary to prevent crime. Any disclosure must be proportionate to that end. However, the routine blanket disclosure provided for by Amendment 137 would be disproportionate and would not take account of the protections in the Rehabilitation of Offenders Act 1974 and the Data Protection Act 1998. It is not clear what the amendment would add to the police’s current powers to disclose information where it is necessary to prevent crime.

Nor is it clear what the effect of the amendments would be. For example, Amendment 137 would enable a victim to refuse a compensation order made by the court but nothing is said about what the outcome of the refusal would be. If a compensation order has been made by the court, it should be enforced unless revoked. It is appropriate that offenders should compensate victims for the harm that they have done, and compensation orders provide a means for the criminal courts to include this in sentencing. However, sentencing is a matter for the judiciary, which makes decisions within the sentencing framework and based on relevant information about the offence and offender, including, in the case of compensation orders, the offender’s means. It would not be appropriate for resentencing to occur based on a victim’s ability to refuse a compensation order.

Similarly, victims would have a right to attend and make representations to a “pre-court hearing” to determine the nature of court proceedings. What hearings and the representations would concern is not explained. No definition is provided for the “adequate notice” that victims should be given of any court proceedings. Furthermore, Amendment 137 would impose obligations on the criminal justice agencies in respect of matters that are beyond their control—for example, delays caused by the defence.

Amendment 138, which concerns training, is also unnecessary. The training of all staff in the criminal justice system is already taken very seriously. General and specialist training is provided to the police, prosecutors, the judiciary and others depending on the type of work the individual undertakes. This includes training on the treatment of victims, as my noble friend Lady Chisholm outlined on Report.

Although the House of Commons has not sought to disagree with these amendments on the basis that they would involve a charge on public funds, they would undoubtedly impose additional demands on the taxpayer. Amendment 137 would significantly expand the existing criminal injuries compensation scheme so that it would apply to all victims of crime and not just eligible victims of a crime of violence as defined under that scheme. Indeed, it would go further by requiring compensation to be paid not just for a criminal injury, but also for “any detriment” caused by a criminal case.

Amendment 137 would also require the provision of full transcripts on request and free of charge to victims, which would be prohibitively costly. Additionally, the amendment would allow victims to receive legal advice where a judge considered it necessary, presumably with legal aid. The aforementioned pre-court hearings would be a likely candidate. We have been given no indication by the proponents of these amendments of the additional financial burdens that they would impose on criminal justice agencies or the implications for legal aid funding.

As I have said, we recognise there are concerns regarding the victims’ code. We know, for instance, that there are concerns about a lack of awareness among victims of their rights under the code, and we are considering how we might address that. Also, as part of the work looking at what is required to strengthen further the rights of victims of crime, we are considering how compliance with the code might be improved and monitored, and exploring how those responsible for the delivery of rights and entitlements might be held accountable for failings. We want to ensure that any future reform proposals are evidence-based, fully costed, effective and proportionate. While the amendments are well intended, those are qualities that they do not possess.

There is already an established legislative framework providing for the rights of victims of crime. As I have indicated, there is scope for improvement in strengthening the rights of victims, ensuring that agencies are fulfilling their duty and are appropriately trained to deliver those rights, and considering how delivery is monitored. Given the difficulties with the amendments, I put it to the House that it would be inappropriate to legislate further in advance of the Government setting out our strategy for victims, which we intend to do within 12 months. I further assure the House that we will take the appropriate action to give effect to the strategy, including bringing forward any appropriate primary legislation. I ask that the House await the outcome of this work rather than rushing ahead with this untested and uncosted package of measures. I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

Leave out from “136” to end and insert “and 139 to 142, and do insist on its Amendments 137, 138 and 307.”

My Lords, I thank the Minister and her predecessor, the noble Baroness, Lady Chisholm of Owlpen, for being available for meetings and discussions during the passage of the Bill. I am very grateful for their assistance.

I can think of no better way to start the debate on the victims’ code and support for victims than to pay tribute to Jill Saward, who died two weeks ago. I extend my sympathy to her husband Gavin and her family on her untimely death at the age of 51. Jill was the first person to waive her anonymity having been the victim of a brutal rape and sexual assault in 1986, and her photograph was all over the Sun newspaper just days after the incident, something that is perhaps pertinent to our debate earlier about Leveson 2. The judge in the case sought to justify giving the defendant who did not take part in the rape a longer sentence than those who did by saying that Jill’s trauma,

“had not been so great”.

Two years later she led the campaign for anonymity for victims from the moment of assault, but chose to waive her own right to anonymity and published her account, Rape: My Story, an incredible, hard-hitting and moving book.

She was a brilliant and dedicated campaigner as well as a wise counsellor. Until she died, most people never knew how many victims of assault, rape, stalking or domestic violence were contacted by her privately, and she supported them through their experience. I know that Jill provided considerable support for Claire Waxman, a survivor of repeated stalking and the founder of Voice4Victims, in her campaign to inform Ministers and parliamentarians of failings in the current system, which has resulted in the amendments that have been put before your Lordships’ House and another place.

In the Commons consideration of Lords amendments last week, the Minister said:

“These amendments ignore the extensive reforms and modernisation we are undertaking to transform our justice system … The amendments would result in an unstructured framework of rights and entitlements that is not founded on evidence of gaps or deficiencies … Some amendments are unnecessary because they duplicate existing provisions and practices, or are being acted on by the Government already … We are looking at the available information about compliance with the victims code and considering how it might be improved and monitored.”.—[Official Report, Commons, 10/1/17; cols. 249-50.]

The reason I raise this is that we feel very strongly because the Conservative manifesto 2015 said:

“We have already introduced a new Victims’ Code and taken steps to protect vulnerable witnesses and victims. Now we will strengthen victims’ rights further, with a new Victims’ Law that will enshrine key rights for victims”.

That is what the amendments we have set before your Lordships’ House today are intended to do. Apart from the fact that the Minister seemed to contradict himself somewhat during that debate, we are clear that, although the victims’ code gives victims entitlement to support, it does not ensure that that support is provided by the agencies. It is the lack of statutory duty for the agencies and the criminal justice system that is the problem.

The Code of Practice for Victims of Crime uses the words “should” and “may” repeatedly when talking about the services while, when it is talking about victims, it talks about entitlement. It is that gap that the amendments are intended to resolve. The results of that gap are all too evident. Do not take my word for it. The criminal justice joint inspection report, Meeting the Needs of Victims in the Criminal Justice System, states that,

“there were some excellent individual examples of good practice across criminal justice sectors”,

but that,

“there were unacceptable inconsistencies in the service provided to victims—depending on the type of offence, where they lived or the degree to which local policy support and reinforce service provision. Given that the Code of Practice for Victims of Crime … provides a standard which should transcend all these variables, there is clearly more work to do”.

Last year, the Public Accounts Committee published a report on the needs of victims and a victims’ law, stating:

“The … system is bedevilled by long standing poor performance including delays and inefficiencies, and costs are being shunted from one part of the system to another … The … system is not good enough at supporting victims and witnesses … Timely access to justice is too dependent on where victims and witnesses live … There is insufficient focus on victims, who face a postcode lottery in their access to justice due to the significant variations in performance”.

The Victims’ Commissioner, the noble Baroness, Lady Newlove, in her report of January 2015, said that almost 75% of respondents to her survey of victims consulted during the review were unhappy with the response they received, and over 50% found the relevant agency’s complaints process difficult to use.

I am very grateful for the Minister’s statement that there is work to do on the victims’ code. Since the amendments started their passage through Parliament, Voice4Victims has been flooded with new issues raised by victims on the process failing them, not just the reason why those families and individuals were victims. Ivy, who was 45, was encouraged to report to the police ongoing sexual violence by her partner. She did so, but the officer said that he did not believe her. A second officer dismissed her claims and said that she was overreacting. Later, she was further violently assaulted by her partner, including suffering broken ribs and severe bruising. At the following multiagency meeting, she was told by the police that she was now assessed as being at high risk of being murdered. To cut a long story short, she had to move 170 miles away from her home. The victim had to move because the police could not guarantee her safety. Victims are being let down by the system.

I thank the Minister for the statement she made earlier. The key points to satisfy me not to call for a vote on my amendment are that we need to undertake a review within a timescale. I am grateful for the review that is to report back within 12 months. As important, I am grateful to the Minister for saying that she will ensure that any review will make sure that there is a statutory responsibility for the fulfilling of duties by the agencies and that appropriate training and services delivered are monitored. Victims—from Jill Saward, 30 years ago, who started the movement for victim support, right through to Ivy and the many others around her today—deserve better, and they deserve action soon. I beg to move.

My Lords, I rise to support my noble friend Lady Brinton and associate those on our Benches with her remarks on Jill Saward. The Minister acknowledged in her remarks that there are legitimate concerns about the victims’ code, and that is why there was a Conservative Party manifesto commitment for a new victims’ law to ensure that the victims’ code is given effect. That is what my noble friend is trying to achieve through the amendment. We trust that the Government’s review will result in more effective protection for victims and more compliance by the police and the other agencies with the victims’ code. If the Minister can give that commitment, we will be prepared to accept the Government’s intention to ensure that the victims’ code is not simply a matter of words but will have some effect and that victims will be better cared for by those agencies in the criminal justice system.

My Lords, we, too, support the objectives behind the amendment that was moved so eloquently by the noble Baroness, Lady Brinton, for the reasons that she herself set out. We also associate ourselves with the comments made by the noble Baroness about Jill Saward.

The issue is that the current victims’ code is not legally enforceable and there is clear evidence that it is not being applied and acted on by the relevant agencies to the extent that was clearly intended—to the detriment of the victims it was intended to help. The amendment provides for victims’ rights to be placed on a statutory footing and for the Secretary of State to address the issue of training for all relevant professionals and agencies on the impact of crime on victims.

I share the view that the Government, in the statement made by the Minister today, have been considerably more helpful and constructive in their response than they were during consideration of the Lords amendment in the Commons last week.

Finally, I, too, express my thanks to the Minister for her willingness to meet us. I hope that we have reached a stage at which there will be some accord on this issue.

My Lords, I do not think that there was a lack of accord. In fact the whole way through these discussions I felt that we were seeking the same ends; it was just a matter of how we got there. I add my tribute to that of the noble Baroness to Jill Saward. I read about her the other day, and what she went through was absolutely heart-breaking as well as devastating while her father and then fiancé were downstairs. How she gathered the strength to not only waive her right to anonymity but help so many other people is quite inspiring and not something that everybody would feel able to do.

Following discussions today, yesterday and previously, we have reached a consensus on this and I hope that the words that I read out have given noble Lords confidence as we move forward to publishing this strategy within the next 12 months. I thank all noble Lords for their part in this debate.

I thank all noble Lords who have spoken in this debate, and thank again the Minister for the words that she said from the Dispatch Box, which meet my concerns at the moment. I shall be interested to see the result of the review and consultation. If we feel that there is not strong enough legislation coming through afterwards, I suspect that more amendments will appear in further course. In the meantime, I beg leave to withdraw the Motion.

Motion D1, as an amendment to Motion D, withdrawn.

Motion D agreed.