Report (6th Day)
Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th, 13th, 15th and 16th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee
109B: After Clause 55, insert the following new Clause—
“Code of practice relating to non-criminal hate incidents
(1) The Secretary of State may issue a code of practice about the processing by a relevant person of personal data relating to a hate incident.(2) In this section “hate incident” means an incident or alleged incident which involves or is alleged to involve an act by a person (“the alleged perpetrator”) which is perceived by a person other than the alleged perpetrator to be motivated (wholly or partly) by hostility or prejudice towards persons with a particular characteristic.(3) The provision that may be made by a code of practice under this section includes, in particular, provision about—(a) whether and how personal data relating to a hate incident should be recorded;(b) the persons who are to process such personal data;(c) the circumstances in which a data subject should be notified of the processing of such personal data;(d) the retention of such personal data, including the period for which it should be retained and the circumstances in which and the procedures by which that period might be changed;(e) the consideration by a relevant person of requests by the data subject relating to such personal data.(4) But a code of practice under this section must not make provision about—(a) the processing of personal data for the purposes of a criminal investigation, or (b) the processing of personal data relating to the alleged perpetrator of a hate incident at any time after they have been charged with an offence relating to the hate incident.(5) A code of practice under this section may make different provision for different purposes.(6) A relevant person must have regard to the code of practice that is for the time being in force under this section in processing personal data relating to a hate incident.(7) In this section—“data subject” has the meaning given by section 3(5) of the Data Protection Act 2018;“personal data” has the meaning given by section 3(2) of that Act;“processing” has the meaning given by section 3(4) of that Act.(8) In this section “relevant person” means—(a) a member of a police force in England and Wales,(b) a special constable appointed under section 27 of the Police Act 1996,(c) a member of staff appointed by the chief officer of police of a police force in England and Wales,(d) a person designated as a community support volunteer or a policing support volunteer under section 38 of the Police Reform Act 2002,(e) an employee of the Common Council of the City of London who is under the direction and control of a chief officer of police,(f) a constable of the British Transport Police Force,(g) a special constable of the British Transport Police Force appointed under section 25 of the Railways and Transport Safety Act 2003,(h) an employee of the British Transport Police Authority appointed under section 27 of that Act,(i) a person designated as a community support volunteer or a policing support volunteer under section 38 of the Police Reform Act 2002 as applied by section 28 of the Railways and Transport Safety Act 2003, or(j) a National Crime Agency officer.”Member’s explanatory statement
This amendment confers power on the Secretary of State to issue a code of practice about the processing by the police of personal data relating to a hate incident other than for the purposes of a criminal investigation.
My Lords, Amendment 109B standing in my name is on the topic of non-crime hate incidents. In my opening remarks, I will also speak to the related government Amendment 109F. I am grateful to my noble friend Lord Moylan for tabling amendments in Committee that related to ensuring that guidance on the recording of non-crime hate incidents, and the retention of personal data in relation to these incidents, was subject to parliamentary oversight.
The Government understand the strength of feeling of many noble Lords on this matter, and I am grateful to all who expressed their views during the debate on this topic on 1 November. Having listened to the compelling arguments, we have tabled Amendments 109B and 109F, which draw strongly from my noble friend’s amendment in Committee. I am very confident that the government amendments reflect the spirit of his proposals in his original amendment and address the House’s concerns in relation to this matter.
I reiterate that the collection of non-crime hate incident data is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence, and is intended to give the police the means to understand tensions within communities before they escalate into serious harm. This data pertains to incidents which are not crimes. It can include location data, to know where repeat incidents of apparent tension and hostility may occur. In this respect, the data is vital for helping the police to build intelligence to understand where they must target resources to prevent serious crimes which may later occur.
The importance of such intelligence has been illustrated where it could have prevented real harm. The tragic case of Fiona Pilkington and her daughter, subjected to persistent abuse and in which the police failed to draw the links to repeated incidents of harassment until she felt forced to take her own life and the life of her daughter, is one such example. Of course, non-crime hate incidents may also include the collection of personal data. Some of these records will include an accusation of hate crime which has been made against a person but was not proven.
To address concerns relating to the collection of this data, the government amendments will ensure that the police’s processing of personal data in non-crime hate incident records is subject to a code of practice issued by the Home Secretary. The code will be subject to parliamentary scrutiny, with its first iteration being subject to the affirmative procedure, with the negative procedure applying thereafter.
The College of Policing is currently responsible for producing non-statutory hate crime operational guidance for the police to follow when processing data on hate crimes and non-crime hate incidents. The statutory code of practice, once in effect, will replace the relevant section of this guidance on non-crime hate incidents. The college’s guidance will remain in place until the new code enters into effect.
The code will apply only to incidents which the police have designated to be non-crime hate incidents. Where the police are carrying out investigations with a view to there being a prosecution, or where they assess that a prosecution is likely, the code will not apply. It is vital to ensure that the code will not inhibit the police’s abilities to gather evidence that is fundamental to the role of policing. My noble friend’s original amendment included a similar exception. The code will also not apply to data which contains no personal data at all; for instance, location data would not be in scope.
Amendment 109B provides the Secretary of State with the power to issue the code and prescribes some of the key provisions that will be addressed in it. The amendment provides that the code may cover whether personal data relating to a hate incident should be recorded; the persons who are to process such personal data; the circumstances in which a data subject should be notified of the processing of such personal data; the retention of such personal data, including the period for which it should be retained; the circumstances in which, and the procedures by which, that period might be changed; and the consideration by a relevant person of requests by the data subject relating to such personal data. This is not an exhaustive list and it might be expanded or amended during the formulation of the code of practice or in the future.
The precise content of the code of practice will be decided at a later stage. The Government will work closely with policing partners, including the College of Policing and the National Police Chiefs’ Council, when drafting the code to ensure that it meets operational requirements. Decisions relating to existing non-crime hate incident data will also be decided in due course as the process of drafting the new code begins.
We will also ensure that the content of the code fully reflects the recent Court of Appeal judgment in the Harry Miller v College of Policing case that was handed down on 20 December. The court found that the recording of NCHIs is lawful provided there are robust safeguards in place so that the interference with freedom of expression is proportionate. This is a very important point. The court did not consider that the recording of NCHI data was of itself unlawful; rather, it concluded that extra safeguards were necessary to ensure the protection of rights. The approach that the Government are adopting is absolutely in line with that. I can assure the House that this judgment will be reflected in the code.
As I said at the beginning, I am grateful to my noble friend Lord Moylan for bringing this important issue to the Government’s attention. I hope that he will see that the Government have taken these issues very seriously. The government amendments will address a significant number of the concerns raised by bringing parliamentary oversight to this process and enabling the production of a code of practice that will respect the operational importance of the police recording non-crime hate incidents to help keep vulnerable people and communities safe, while balancing this with the need to protect freedom of expression.
My noble friends Lord Moylan and Lord Blencathra have various amendments in this group, including to government Amendment 109B. It would be helpful to hear from them and other noble Lords before I respond. For now, I beg to move.
109C: After Clause 55, in subsection (1), leave out “may” and insert “must”
My Lords, I thank my noble friend for being a listening Minister and for the hard work she has put into bringing forward this amendment. She has explained what government Amendment 109B does. Essentially, it brings the guidance under which non-crime hate incident records are made by the police under statutory guidance to be issued by the Secretary of State. That is very welcome, but I have some questions to ask about the amendment and some points to make that appeared in my original amendment but do not figure in Amendment 109B.
The first is my Amendment 109C, which would make it mandatory for the Secretary of State to issue this guidance. That was the sense of the Committee when we debated it: that the Secretary of State should do this, not that the Secretary of State should have the option of doing it. But in the very first line of proposed new subsection (1) “may” appears, which I think should be “must”.
I will make it clear at this point that it is not my intention to press any of my amendments to a Division or to seek the opinion of the House, but I would like to hear my noble friend’s explanation of why “may” is, in her view, an appropriate word here when the sense of the Committee was that it should be “must”. The anxiety is not that the current Secretary of State will fail to issue the code of practice because, quite clearly, having brought forward the amendment it would be very strange if she did not act. The anxiety is that a future Secretary of State could, using “may”, revert to the status quo if they wished because there would be no obligation on them to maintain the code of practice. I would like to hear some assurance from my noble friend, and possibly even a word that she might bring forward this modest change at Third Reading.
My Amendment 109E affirms the importance of freedom of expression, especially in the light of the recent Court of Appeal decision in the Miller case. In the interests of brevity, I will not comment on this amendment further but leave it to more qualified noble Lords who might wish to comment on it after me, because I know that we have a very heavy day.
My Amendment 114E relates to the disclosure of non-crime hate incidents in response to a request for an enhanced criminal records check. Noble Lords will be clear, I am sure, that the question of recording these incidents is a wholly separate matter from their disclosure in response to the criminal record check. The government case on this point—if I may anticipate what my noble friend will say—seems to be that statutory guidance already covers disclosure and is more or less adequate the way it stands.
That is not entirely the case; not everyone is convinced. I will take a modest example. In arguments before the Court of the Appeal in the recent Miller case, counsel for the College of Policing said clearly that their client, the college, took the view that there were circumstances in which it would have been appropriate for the relevant police force to disclose this non-crime hate incident if Mr Miller had applied for certain jobs, for example working with transgender children. But of course the state of affairs today is such that any child is potentially a transgender child, so they were saying, effectively, that he would have been barred—because of the fluidity of a child’s decision-making about their gender—from working with children, because of this tweet that was objected to but which the court did not entirely agree should come under this restriction.
So, if the Government are not minded to adopt my suggestion in Amendment 114E, there is, at the very least, a strong case for them to review the existing statutory guidance to ensure that it is fully in line with the findings of the Court of Appeal—and on that matter again I would be very grateful for an assurance from my noble friend.
Amendment 109D, in the name of my noble friend Lord Blencathra, is one I have general sympathy with, but the noble Lord can surely make the case for it much better than I can, so I shall pass on. Perhaps I may make a helpful suggestion. It used to be the case—perhaps it still is—that a very large number of complaints that reach police forces are purportedly about fraud. A little while ago, to help police forces manage these complaints, many of which are not about fraud at all, the Home Office set up a central unit, Action Fraud, to which the complaints are referred before they are investigated, so that more expert eyes can look at them and, if they have substance, refer them back to the relevant police force for investigation. This is a model that perhaps could be applied to non-crime hate incidents. Again, I do not expect a commitment today from my noble friend, but something of this sort could make the system a great deal less variable and uncertain, which is one of the problems that afflicts it at the moment. Again, I would be grateful to hear anything the Minister might have to say on that.
Finally, before I sit down, I will ask my noble friend, when she wraps up, to answer two questions. First, will the Home Office ensure that the College of Policing ceases the practice set out in its current guidance, so that no more incidents are recorded while the new guidance is pending? Alternatively, what does the Minister envisage for this period, when we are waiting for the new guidance? Secondly, when the new guidance comes into effect—presumably with different criteria from the current guidance—what will happen to existing historic cases of non-crime hate incident records? Will they be retained as they are, will they be extinguished or will they be reviewed and modified in the light of the new guidance?
My Lords, it is a pleasure to follow the noble Lord, Lord Moylan, and to have put my name to his amendments both in Committee and here.
Those of us who put our names to these amendments, discussing the matter before Committee, had a number of concerns: first, the lack of any parliamentary oversight over a system in which the police were creating hate records against the names of people who had committed, it was agreed, no crime; secondly, that these records were categorised as hate incidents purely according to the perception of the complainant and that no other evidence or real inquiry was required; thirdly, that these records were disclosable in some circumstances, for example to potential employers, with all the damage that could imply for the subject of the record; and fourthly, and perhaps most importantly for some of us, that the creation of such records in such large numbers—some 120,000 over four years—without any effective oversight, and flowing from entirely lawful speech, would surely have a chilling effect on the exercise of free speech and therefore on public debate generally.
This is surely one of the most egregious potential consequences of such a process if it is not properly controlled. The case of Harry Miller demonstrates that, but there are many others, including that of a social worker called Rachel Meade who, the Times reported only last week, was facing disciplinary action and the sack for Facebook posts expressing gender-critical views. I observe that these have clearly been stated by the Court of Appeal to be protected beliefs under the Equality Act—so this is not a problem that has gone away.
The Minister mentioned the Harry Miller Court of Appeal judgment. I will quote from it briefly. The court said that
“the recording of non-crime hate incidents is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate.”
The court went on:
“The concept of a chilling effect in the context of freedom of expression is an extremely important one. It often arises in discussions about what if any restrictions on journalistic activity are lawful; but … it is equally important when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”
This is why Amendment 109E is before your Lordships’ House. It is to assert the primary importance of the Home Secretary’s code of conduct when it is drafted, stressing—and, indeed, insisting on—a proper respect for the fundamentals of free expression whenever the police are considering recording a non-crime hate incident. Those of us who support this amendment do so because we believe it is so important in the protection of public debate and free expression rights generally that your Lordships should insist that the principle is enshrined in terms in the legislation. The Minister may argue that this is taken as read and that this amendment is in some way otiose. I say in response that experience to date demonstrates the exact opposite.
My Lords, I will speak to Amendment 109D to remove the negative procedure for all subsequent revisions of this guidance. I shall do that in my capacity as chair of the Delegated Powers Committee, but first I want to make some brief comments in a personal capacity on this whole, in my view, iniquitous concept of innocent people being put on a criminal records database.
As other noble Lords have said, it seems that there are 120,000 people who have not committed any crime, have not been found guilty by a court of any description and yet are held on a database with other people who have been convicted of terrorism, paedophilia, rape, murder, armed robbery and every crime on our statute book. Some may argue that it is not really a criminal record, but if an employer asks for an enhanced criminal record check, the police hand over the names of innocent people whom the police have tried and convicted. I am not convinced that their system of control is as accurate as they claim it is.
If someone complains that they have encountered a hate incident—and we see a growing mountain of these bogus claims—the police investigate. Even when no crime has been committed, the police may decide that the person should be convicted of having done a non-crime hate incident—no magistrate, no proper judge, no jury, just the police.
I will now return to the amendment in front of us in my capacity as chair of the Delegated Powers Committee —your Lordships will be relieved to know that I am being relieved of that position on Wednesday of this week when a new chair is appointed. I welcome the Home Office taking responsibility for these guidelines. If we are going to put innocent people on a criminal records list, it must be done under regulations which have proper parliamentary scrutiny every time—as these will have, at least the first time they are made.
When the Court of Appeal in the Miller case announced that the College of Policing—not a statutory body but a private limited company, as we discussed last week—had produced and implemented partly unlawful guidance, the comment from an assistant chief constable at the college was:
“We will listen to, reflect on, and review this judgment carefully and make any changes that are necessary.”
That is all right then. There is no need to bother 650 MPs or 800 Peers; this assistant chief constable will write our laws. Thank goodness the Home Office realised that it is completely wrong for the liberty and reputation of the individual to be subject to rules written by a private limited company. Thus, I partly welcome—no, largely welcome—the Home Office amendment before us today, but I am afraid it adopts the usual ploy that the Delegated Powers Committee sees in so many Bills, namely the first-time affirmative ploy. This means that the Bill says that the first set of regulations will be made by the affirmative procedure but subsequent revisions will inevitably be minor and technical. Therefore, we need not worry our pretty little parliamentary heads about them and the negative procedure will suffice.
We have seen no evidence to suggest that any subsequent revisions to this guidance will be minor or technical. Indeed, they could be substantial. Suppose, in a hypothetical instance, that the first set of regulations stipulates that these records for non-crime shall be retained for two years. A year later the Home Office issues a revised set with just one word changed: delete “two years” and substitute “10 years” or “25 years”.
The Minister may say—we get this a lot from all departments—that Ministers have no intention whatever of doing that and in the Delegated Powers Committee we always say that the intention of the current Minister is irrelevant and what the law permits them to do is the only thing that matters.
This business of recording non-crimes is such a contentious matter that we suggest that the affirmative procedure must be used on every occasion. The net result of that will be that any time the guidance is revised a Minister—usually a Lords Minister as the Commons will probably bounce it through on the nod—may have to do a 90-minute debate in your Lordships’ House. It is not a very heavy burden to impose on the Government.
The Court of Appeal said:
“The net for ‘non-crime hate speech’ is an exceptionally wide one which is designed to capture speech which is perceived to be motivated by hostility ... regardless of whether there is evidence that the speech is motivated by such hostility … There is nothing in the guidance about excluding irrational complaints, including those where there is no evidence of hostility and little, if anything, to address the chilling effect which this may have on the legitimate exercise of freedom of expression.”
I simply say that so long as these rules remain, Parliament must approve all regulations on this matter, whether it is the first set of regulations, the second, the 10th or the 50th iteration of them.
My Lords, as other noble Lords have said, this is a contentious issue. The noble Lord, Lord Macdonald of River Glaven, may recall from his time in a previous role a report from the probation service called From Murmur to Murder—the noble Lord is nodding—when those in the probation service decided that they would engage with racist clients to challenge their abhorrent views, because of where it might lead.
From stalking to domestic violence, to murder motivated by hatred, including terrorism, we know that non-crime activity can provide indications of individuals’ journeys towards serious violence, but the recording of such intelligence must be subject to a statutory code of practice. I have sympathy with the noble Lord, Lord Blencathra, in insisting on the affirmative procedure for any changes once the original guidance is issued. We welcome the government amendments and thank the noble Lord, Lord Moylan, for raising the issue.
My Lords, I begin by saying how grateful I am to my noble friend Lady Williams of Trafford for the time that she has given me, and others, since the debate in Committee on 1 November and for bringing forward these amendments. Having said that, I have some observations to make, in particular about freedom of expression.
Events since the debate in November have made the need for proper regulation even more pressing. Since that debate, as we have heard, the Court of Appeal in Miller has stressed the danger of the chilling effect of police intervention on individuals minded to speak on controversial public topics. The president of the Queen’s Bench Division, in her very powerful judgment, said that the revised guidance published by the College of Policing, which was then before the court, did not
“go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally.”
She emphasised that
“additional safeguards should be put in place so that the incursion into freedom of expression is no more than strictly necessary.”
Finally, she said:
“Guidance should truly reflect what the police are expected to do and should not mislead by omission either the police who have to use it or the public.”
At much the same time as that judgment was being written, a similar matter came before the court in Strasbourg—the case of Dr Pal. It was decided against the United Kingdom on 30 November 2021—just two months ago. Dr Pal, a journalist, was arrested, detained and charged with hate speech in respect of a person called AB. Only when it came to the magistrates’ court did the CPS abandon the prosecution. Dr Pal then brought proceedings for wrongful arrest, or false imprisonment. The Strasbourg court observed that the arresting officer’s decision to arrest
“appears to have been based on the subjective viewpoint of AB”—
that is, the complainant himself —
“without any acknowledgement of the fact that the right to freedom of expression extends to information or ideas that defend, shock or disturb.”
The court said that
“there is no evidence that the criteria … relevant to the balancing of the rights to freedom of expression and the right to respect for private life … were taken into account prior to the applicant’s arrest. In particular, no consideration appears to have been given to the subject matter … and whether they could be said to have contributed to a debate of general interest.”
In short, there have been two important decisions from very senior courts which have stressed the vital importance of paying proper regard to freedom expression and to the need for those in authority to understand and reflect that the right to freedom of expression extends to ideas that may shock or disturb others. There must be fresh guidance, it must reflect those observations, it must be clear and decisive—and it must be soon.
My Lords, I thank the Minister for introducing her two amendments, which we welcome. It was fair of her to point out the legacy of the recording of non-crime hate incidents and the legacy of the Macpherson report on Stephen Lawrence’s murder. We welcome that the existing guidance will be turned into statutory guidance. I have one question for the Minister: what is the likely timetable for that statutory guidance to be available to be reviewed by Parliament?
On Amendment 114E in the name of the noble Lord, Lord Moylan, I have a genuine question, and this is not a party-political point: how would his amendment have an impact on domestic abuse cases? As I have said before to the House, I sit as a magistrate in both family court and the criminal court, and I deal with a lot of cases related to domestic abuse. While non-hate crime incidents are not recorded on the police national computer, we see information on call-outs and it is common to see information on text records between the parties, usually a man and a woman. Sometimes those text records go on for pages and are relentlessly abusive. How would that information be affected by his amendment?
Without having myself looked at the wording of the amendment, the original wording, which I think is preserved in the current amendment, would have excluded disclosure in relation to individuals but not in relation to groups. In the context of the original amendment, therefore, I think that point would have been covered. The noble Lord makes a very good point, and if I were pressing the amendment or the Government were intending to take it forward in any way, of course it would need to be reviewed to ensure that his point was properly addressed.
My Lords, I am grateful to my noble friends for setting out their amendments. I shall respond to them in turn. Amendment 109C seeks to impose a duty on the Home Secretary to issue a code of practice, while our amendment provides her with the power to do so. My noble friend Lord Moylan has pressed me on this issue. I assure the House that we certainly will issue such a code of practice; indeed, Home Office officials will shortly begin the process of drafting the aforementioned code. The permissible language in Amendment 109C is a common drafting approach but, as I have said, it is our firm intention to prepare and issue a code relating to non-crime hate incidents. As I said earlier, I can assure the House that decisions relating to existing non-crime hate incident data will also be made in due course as the process of drafting the new code begins.
My noble friend asked me if the College of Policing would pause the recording of NCHIs, as they are called, while the guidance was being formulated. The current non-statutory guidance on NCHIs will remain in place until the new code of practice enters into effect.
The noble Lord, Lord Ponsonby, asked about the timing of the amendment and when it would come into force. The reason why we have not issued a timescale is that the code will require careful drafting to ensure that it both meets the needs of the police and protects the public. Furthermore, as noble Lords will know, the Court of Appeal has only recently handed down its judgment in the Miller case and the code will have to account for that ruling. We do not wish to impose unduly restrictive timeframes on the process of drafting and publishing a code that will fully align with these objectives.
My noble friend has suggested, previously and again today, that a unit of some description could be set up to provide advice to police forces on whether specific incidents should be investigated by the police force as non-crime hate incidents. That suggestion requires further consideration, and I will try to give it my full consideration in due course.
My noble friend Lord Blencathra raised concerns that the amendments provide that the first iteration of the code is subject to the affirmative procedure, with the negative procedure applying thereafter. This point has been raised by the Delegated Powers and Regulatory Reform Committee, which he chairs so ably; I am sorry that he will be stepping down. We take the committee’s views very seriously. I will set out why we have adopted this approach.
As I have already indicated, in framing the code, we need to ensure that we have given effect to the ruling by the Court of Appeal in the Miller case. By ensuring that the first iteration is subject to the affirmative procedure, we are enabling both Houses expressly to approve the code, thus ensuring that this House can confirm that it is content that the code reflects that judgment.
It is appropriate that further iterations of the code are then subject to the negative procedure. We do not think there will be any further major rulings on the topic of non-crime hate incidents. Any further changes will thus simply reflect the routine need periodically to review such guidance. It would be disproportionate to require the affirmative procedure for every dot and comma change in further future iterations; indeed, the fundamental premise of the code will already have been expressly agreed by Parliament. We therefore do not believe that the affirmative procedure for future iterations would be an effective or necessary use of parliamentary time. I also confirm to my noble friend that we will respond to the DPRRC shortly.
Amendment 109E seeks to incorporate a specific reference to the importance of the right to freedom of expression within the list of matters that may be addressed in the code. When discharging her functions, including preparing this new code of practice, the Home Secretary must already act in compatibility with convention rights; a number of noble Lords rightly asked about this. That includes Article 10, which ensures a right to freedom of expression. It is therefore not necessary to include a reference to the importance of the right to freedom of expression, because this is already a given under the Human Rights Act. None the less, I assure noble Lords that the code will address issues around freedom of expression. Indeed, in my opening remarks, I noted that we will ensure that the content of the code fully reflects the recent Court of Appeal judgment in the Miller case.
Finally, Amendment 114E would prohibit the disclosure of non-crime hate incident personal data on an enhanced criminal record certificate. I cannot support such a blanket prohibition. The noble Lord, Lord Ponsonby, illustrated one of the reasons why. First, non-crime hate incidents are simply one form of police intelligence that sit alongside many others—missing persons data, evidence of anti-social behaviour, unproven allegations of sexual assault and perhaps domestic abuse. They exist in line with the police’s common-law powers to prevent crime and keep the Queen’s peace. There are rightfully circumstances in which police non-conviction information of various kinds will be considered for disclosure in enhanced checks which are used in relation to roles involving close working with vulnerable adults or children. Maintaining this regime is essential for safeguarding purposes.
Secondly, the rules surrounding disclosure of this type of data are already governed by the statutory disclosure guidance produced by the Home Office. The third edition of this guidance came into force on 16 November last year. Non-crime hate incident intelligence is not an exceptional form of police intelligence; it is simply a type of non-crime incident data collected by the police to prevent crime. That is why it is covered in the same statutory guidance. The statutory disclosure guidance has been tested by the courts and assists chief officers of police in making fair, proportionate and consistent decisions in determining when local police information should be included in enhanced criminal record certificates. Singling out this category of police data for non-disclosure would be inconsistent with the principles set out in the statutory guidance and, as such, unnecessary and disproportionate.
My Lords, does my noble friend agree that, since the guidance was published before the Court of Appeal decision, the guidance on disclosure should at least be reviewed in the light of the court decision and the reference to “chilling effect”, to ensure that it is fully compatible? Since that was so much part of the debate in the Court of Appeal—not simply recording but also disclosure—would it not make sense to review it?
My noble friend has jumped the gun on what I was going to say. We are confident that the statutory disclosure guidance, the latest version of which was published on 16 November, sets out clearly the criteria and principles which chief officers must have regard to in making decisions to disclose non-conviction information.
The safeguards in the statutory disclosure guidance are very robust. Should a chief officer consider that information ought to be disclosed in line with the guidance, the applicant is invited to make representations. Should the decision to disclose be confirmed following any representations given, that information will be included on the certificate that is sent to the applicant only. Importantly, the applicant also has a right to appeal that disclosure through the independent monitor, who considers cases where an individual believes that the information disclosed within an enhanced criminal records certificate is either not relevant to the workforce they are applying for or that it ought not to be disclosed.
A question was asked earlier about what will happen to people who already have their information—what can we do about that? It is important that drafting takes time; in Committee I spoke about the problem of the drafting of these guidelines and said I wanted good drafting. But I was a bit concerned, as the Minister said that free speech is already protected by the Human Rights Act, but that does not console me because free speech is under attack. We have heard of many instances of where non-crime hate incidents are being used to chill free speech and this—
On Report, questions and interventions are generally for points of elucidation and the Back-Bencher will have spoken before the Minister. That aside, in terms of what happens to historic cases, I think that will be determined upon the updating of the guidance. I will write to noble Lords as I think it is an important point as there may be many examples of it. I will write to the noble Baroness and put a copy in the Library because it is an important point of clarification.
Getting back to what I was saying about the safeguards, it is important that they balance the rights of job applicants with those of the vulnerable people they might have contact with. This goes back again to the point made by the noble Lord, Lord Ponsonby. Alongside the existence of this strict statutory disclosure guidance, I can reassure noble Lords further. As I mentioned in the previous debate, DBS records suggest that, in any event, it is rare for non-crime police information of any sort to appear on an enhanced criminal records certificate supplied to a potential employer. This type of information featured in only 0.1% of the 3.9 million enhanced checks issued by the DBS between April 2019 and March 2020.
My noble friend has also, helpfully, raised with me before today whether the government amendment may encompass disclosure within its remit by referring to the processing of data. While the Home Secretary’s code will set out the rules for those who process NCHI data, there is no obligation for the code to address every conceivable act of processing. We have been clear that the Government’s intention is to not include disclosure within the code of practice; as such, the issue of disclosure will not be covered or referenced in any way in the code of practice.
It is imperative that we do not set an unhelpful precedent by legislating in such a way as to undermine the police’s ability to build intelligence on possible offending and risk to life more broadly. I stress again the often vital role that this data plays in helping to safeguard the vulnerable. It is not there to enforce correct opinions—referred to by the noble Baroness, Lady Fox—nor is it there to serve a purpose unconnected with policing; rather, it is part of the police’s function to prevent crime.
In conclusion, again, I am most grateful to my noble friend Lord Moylan for raising these important issues. I hope that he can see that the Government have taken him very seriously; the government amendments, together with the assurances that I have given in response to Amendments 109C and 109E, will, I think, address the concerns raised, by bringing parliamentary oversight to this process while protecting fundamental police functions that are already subject to strong safeguards. I hope, therefore, that he will see fit not to press his amendment—he has indicated that he will not—and that he will support the government amendments as drafted. I beg to move.
Amendment 109C (to Amendment 109B) withdrawn.
Amendments 109D and 109E (to Amendment 109B) not moved.
Amendment 109B agreed.
109F: After Clause 55, insert the following new Clause—
“Further provision about a code of practice under section (Code of practice relating to non-criminal hate incidents)
(1) The Secretary of State may not issue a code of practice under section (Code of practice relating to non-criminal hate incidents) unless a draft of the code has been laid before and approved by a resolution of each House of Parliament.(2) The Secretary of State may from time to time revise and reissue a code of practice under section (Code of practice relating to non-criminal hate incidents).(3) Before reissuing a code of practice the Secretary of State must lay a draft of the code as proposed to be reissued before Parliament.(4) If, within the 40-day period, either House of Parliament resolves not to approve the code of practice laid under subsection (3)—(a) the code is not to be reissued, and(b) the Secretary of State may prepare another code.(5) If no such resolution is passed within the 40-day period, the Secretary of State may reissue the code of practice.(6) In this section “the 40-day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or (b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(7) In calculating the 40-day period no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.”Member’s explanatory statement
This amendment makes provision about the Parliamentary procedure applying to a code of practice issued by the Secretary of State under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and dealing with codes of practice relating to non-criminal hate incidents.
Amendment 109F agreed.
109G: After Clause 55, insert the following new Clause—
“Increase in penalty for offences related to game etc
(1) Section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose) is amended in accordance with subsections (2) to (4).(2) The existing text becomes subsection (1).(3) In that subsection—(a) after “conviction” insert “to imprisonment for a term not exceeding 51 weeks,”, and(b) for “not exceeding level 3 on the standard scale” substitute “or to both”.(4) After that subsection insert—“(2) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.”(5) Section 30 of the Game Act 1831 (trespass in daytime in search of game etc) is amended in accordance with subsections (6) to (8).(6) The existing text becomes subsection (1).(7) In that subsection—(a) for the words from “conviction”, in the first place it occurs, to “seem meet”, in the second place it occurs, substitute “summary conviction, be liable to imprisonment for a term not exceeding 51 weeks, to a fine or to both”, and(b) for “each of the two offences” substitute “the offence”.(8) After that subsection insert—“(2) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.”(9) In section 4A of the Game Laws (Amendment) Act 1960 (forfeiture of vehicles), in subsection (1), omit “as one of five or more persons liable under that section”.(10) The amendments made by this section have effect only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statement
This amendment increases the penalty for committing an offence under section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose) or under section 30 of the Game Act 1831 (trespass in daytime in search of game etc).
My Lords, I thank the right reverend Prelate the Bishop of St Albans for bringing these important matters to the attention of the House. I declare an interest here, as I am a member of the British Association for Shooting and Conservation, which is a member of the hare-coursing coalition.
In Committee, many noble Lords emphasised the need for early action to crack down further on illegal hare coursing. We have heard eloquent testimony to the cruelty involved and the harm and distress which this activity can cause to rural communities. As we have made clear, the Government are determined to take action. That is why we are taking an early opportunity to act by tabling these government amendments, which, I trust, following on from the debate in Committee, will be widely welcomed. They address most of the issues raised by the right reverend Prelate and, indeed, go further by introducing additional measures besides. It may be helpful to the House if I briefly outline them.
The purpose of our amendments is to broaden the circumstances in which the police can investigate and bring charges for activity related to hare coursing and to increase the powers of the courts for dealing with this activity on conviction. They do this by increasing the severity of the penalties for the relevant offences under the game Acts; introducing new criminal offences relating to trespassing on land with the intention of searching for or pursuing a hare with a dog; and giving the courts new powers to make orders on conviction in relation to the reimbursement of the costs of kennelling seized and detained dogs and the disqualification of offenders from owning or keeping a dog.
Let me set out the effect of the government amendments in a little more detail. First, Amendment 109G will increase the maximum penalties for committing an offence under Section 1 of the Night Poaching Act 1828 or under Section 30 of the Game Act 1831, and will remove the current difference in the maximum penalty that can apply, based on the number of people involved in committing the offence. These are offences most often used to prosecute hare-coursing-related activity, and it is therefore important that the courts should have available to them sentences appropriate to the severity of the harms which can be caused by such activity. In all cases, therefore, the maximum penalty will be increased to an unlimited fine and/or—for the first time—a custodial sentence of up to six months’ imprisonment.
Connected to this, we will also amend Section 4A of the Game Laws (Amendment) Act 1960 to give the court powers to order the forfeiture of a vehicle used in cases where fewer than five people are involved in committing an offence. That is important because of the essential role of vehicles in hare-coursing-related activity.
Turning now from existing to new law, Amendment 109H creates new offences relating to trespassing on land: specifically, trespass with the intention of using a dog to search for or to pursue a hare; facilitating or encouraging the use of a dog to search for or to pursue a hare; or enabling another person to observe the use of a dog to search for or to pursue a hare.
Amendment 109J provides for a further new offence of “being equipped” to commit one of these new trespass- related offences that I have just described. It will therefore be an offence for a person to have an article with them, when not at a dwelling, with the intention that it will be used in the course of, or in connection with, the commission by any person of the new trespass-related offence. These new offences will be punishable by an unlimited fine and/or up to six months’ imprisonment. The purpose of this new “being equipped” offence is to provide a basis for bringing charges in circumstances where someone possesses articles that are associated with hare-coursing and there is clear intention to engage in that activity but there is no element of trespass, because, for example, they are on the public highway. Together, these new offences are designed to increase the circumstances in which hare-coursing-related activity can be investigated and prosecuted. They have been developed in consultation with the police and the Crown Prosecution Service, and welcomed by them as a useful supplement to the legislation currently available.
I turn next to measures relating to the dogs used in hare-coursing. Amendments 109KA, 109L, 109M, 109N, 109PA and 109R strengthen the powers of the courts to make orders in relation to those convicted of certain hare-coursing-related offences. Dogs are a key element in hare-coursing-related activity, and these orders play an important part in addressing the availability of dogs for such activity.
First, Amendment 109KA provides for the court to order the recovery of kennelling costs incurred where a dog has been lawfully seized and detained in connection with certain hare-coursing-related offences. Kennelling costs can be very high. By providing for their reimbursement, we are seeking to reduce obstacles to the lawful seizure and detention of dogs used in connection with hare-coursing-related activity by the police. Such a recovery order can be made by the court whether or not it deals with the offender in any other way, such as through a fine or custodial sentence.
Secondly, Amendments 109L, 109M, 109N, 109PA and 109R provide new powers for the court relating to owning and keeping a dog. The court will be able to make a disqualification order on conviction, for such period of time as it thinks fit, preventing an offender owning and/or keeping a dog where they have been convicted of certain hare-coursing-related offences involving dogs. The amendments relating to dog disqualification orders contain provisions that aim to ensure their fair and effective operation. These include requirements and powers relating to the disposal of dogs, to termination of the orders and to safeguarding the rights of owners who are not the offender.
As many have noted, dogs are central to hare-coursing-related activity. The introduction of orders relating to dog disqualification therefore goes to the heart of the problem by making it possible to remove from convicted offenders access to a means of further offending. I hope that the right reverend Prelate will feel content that the government amendments substantially deliver his ambitions in relation to hare-coursing and that, on this basis, he and other noble Lords would be content to support the government amendments. I beg to move.
My Lords, I declare my interest as president of the Rural Coalition. It is a great delight to stand in the House and congratulate the Government on tabling these amendments to address this very serious rural problem of hare-coursing, which has affected so many landowners and farmers across these islands. In particular, I pay tribute to the noble Lord, Lord Sharpe of Epsom, who really listened to the debate, when people from every part of the Chamber spoke. I know that he has taken that back to others. I am hugely grateful to him for doing that.
I know that this is something that the Government were keen to do and that the consultations with Defra and others were ongoing during the passage of the Bill, so I am grateful that we will not see the delay we thought we would face and that we can offer protection to rural communities and, indeed, hares. I will not say much about the actual amendments—they have been laid out already before us—but I note that the changes the Government are bringing forward are the result of a long-running campaign. I pay tribute to organisations such as the NFU, the CLA and others, which have continually raised this issue and campaigned for a change in the law.
I also pay tribute to our rural police forces and our rural police and crime commissioners. I have been speaking to those in my area who work in my diocese, and this has been a real issue for them. It has been very helpful that they have provided input and feedback on the sort of legislative changes that would be most useful to assist them to be more assiduous in combating hare-coursing. I hope these amendments will go a long way to assist the police to do this.
Of course, there will be some other problems beyond the legislative changes, such as with local police resources and their ability to arrive on time and in sufficient numbers to deal with it. That being said, this is a victory for rural communities, rural police forces, hares and, I believe, Her Majesty’s Government; I strongly welcome it.
My Lords, I commend the government amendments, and congratulate the right reverend Prelate on his successful campaigning and all those behind it. It is great that we are seeing an awareness of the huge issues around wildlife crime, but this is very much a piecemeal approach, addressing one small element of wildlife crime, as important as it is. As the right reverend Prelate said, this is about the welfare of hares, as well as what is happening to people living in the countryside.
I ask the Minister—if he cannot respond now, I would appreciate a response by letter—whether the Government are considering doing something about the welfare of hares, particularly those being caught in spring and snare traps. There is a particular issue around Fenn traps approached by tunnels. There is guidance that says they should be restricted in size to the target species, but there is no legal provision on that. I am afraid there is some very disturbing documentation of hares, and pieces of hares, being found in such traps, and in Perdix traps. Think about what happens to an animal trapped by a paw and left to die, possibly for days, in terror and pain; I hope that that is something the Government are thinking about dealing with.
Briefly, on the wider issue of wildlife crime, I point any noble Lords interested in this to the Wildlife and Countryside Link’s annual report—there have been four of them now—on wildlife crime. It is the only summary available on the scale of the problem. As pointed out by that organisation, which is a coalition of 64 groups around the country, there is currently no recording of wildlife crime as a special category by the Home Office. That group is campaigning for that to happen. I hope the Minister might think about taking action on that.
Finally, we have a very solid law against the persecution of raptors, but we have to think about the use and application of that law, given that 60 hen harriers have been killed illegally or disappeared under suspicious circumstances on and around grouse moors since 2018.
My Lords, I congratulate the right reverend Prelate on his success in persuading the Government to change the rather difficult attitude they had in Committee towards his amendment. I also congratulate my noble friend on the Front Bench on his work in getting these amendments on the Order Paper. Amendment 109H refers to hares, but if somebody is accused of searching for or pursuing a hare and defends himself by saying, “Actually, it was a rabbit I was after”, what action can be taken? Does the word “etc” in the title of the new clause,
“pursue hares with dogs, etc”
cover the case of hares, squirrels or any other excuse that somebody might have?
I also follow the right reverend Prelate in congratulating and paying tribute to our police forces, who have a very difficult time. They will be at the sharp end of seizing and detaining dogs. Can my noble friend assure me that those who go in to seize and detain dogs will be given adequate protection? The people they are dealing with are some very nasty criminals, where high-money stakes are being played for, and in many cases they will stop at virtually nothing in order to get the dogs back, so the protection of those who go in to do that work is very important.
My Lords, we welcome these amendments, although, considering that the Government’s Action Plan for Animal Welfare, published early last year, said that the Government would bring in legislation to crack down on the illegal practice of hare coursing, it was a little disappointing that this was not included in the Bill from the very start. We too offer our congratulations to the right reverend Prelate the Bishop of St Albans on his sterling work in bringing forward amendments and continuing to press the Government on this issue. Also, as he and others have done, we praise organisations such as the NFU and CLA for their campaigning over many years on this issue. Also, the police: alongside the other issues noble Lords have spoken about, can the Minister confirm that the police will have the resources they need, not just financial but with numbers of wildlife officers, which is a problem? But, as I say, we welcome these amendments; it is good that our brown hare populations and our rural communities can now be better protected from this really barbaric practice.
I thank all noble Lords for their warm words, and in particular the right reverend Prelate for his—they are much appreciated. I also join in the general congratulations from around the House on the operations and the work of police forces, in particular—although it is always invidious to single anybody out—Lincolnshire police, who have been leading on Operation Galileo. In answer to the specific question from the noble Baroness, Lady Hayman, I cannot comment on police staffing, but I am sure that rural police forces will warmly welcome these amendments and take the appropriate measures.
In answer to my noble friend Lord Caithness, the decision to prosecute is a matter for the Crown Prosecution Service. In line with the Code for Crown Prosecutors, prosecutors considering whether to prosecute for any offence must consider whether the evidence can be used and is reliable and must be satisfied that there is enough evidence to provide a realistic prospect of conviction.
In the circumstances my noble friend outlines, and depending on the available evidence, if the CPS is not satisfied that there is a realistic prospect of conviction for the offence of trespassing on land with the intention of using a dog to search for or pursue a hare, it could still make a decision to prosecute for an offence under Section 30 of the Game Act 1831 or Section 1 of the Night Poaching Act 1828. These are not specific to hares but apply to any game and, in most circumstances, rabbits. Through these amendments these offences would carry the same penalties as the new trespass offence.
My noble friend’s second question was about who will keep the dogs under the offences outlined in Amendment 109. Again, it will be the court to decide, in making an order under Amendment 109M, who should keep the dogs. We would expect this usually to be the police or an animal welfare organisation. They do work closely together on such matters. The welfare of the dogs is obviously paramount. The police have made it clear that it will be a priority to ensure that dogs remain secure and protected at all times.
I cannot, I am afraid, answer the specific question from the noble Baroness, Lady Bennett, about traps. I am sure she is not particularly surprised about that. But I do warmly welcome her contribution to this wildlife-related debate.
Amendment 109G agreed.
Amendments 109H and 109J
109H: After Clause 55, insert the following new Clause—
“Trespass with intent to search for or to pursue hares with dogs etc
(1) A person commits an offence if they trespass on land with the intention of—(a) using a dog to search for or to pursue a hare,(b) facilitating or encouraging the use of a dog to search for or to pursue a hare, or (c) enabling another person to observe the use of a dog to search for or to pursue a hare.(2) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the trespass mentioned in that subsection.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.”Member’s explanatory statement
This amendment creates a new offence of trespassing on land with the intention of using a dog to search for or to pursue a hare or with the intention of facilitating, encouraging or enabling another person to observe the use of a dog to search for or to pursue a hare.
109J: After Clause 55, insert the following new Clause—
“Being equipped for searching for or pursuing hares with dogs etc
(1) A person commits an offence if they have an article with them in a place other than a dwelling with the intention that it will be used in the course of or in connection with the commission by any person of an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) (trespass with intent to search for or to pursue hares with dogs etc).(2) Where a person is charged with an offence under subsection (1), proof that the person had with them any article made or adapted for use in committing an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) is evidence that the person had it with them with the intention that it would be used in the course of or in connection with the commission by any person of an offence under that section.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section—“article” includes a vehicle and, except in subsection (2), an animal;“dwelling” means—(a) a building or structure which is used as a dwelling, or(b) a part of a building or structure, if the part is used as a dwelling,and includes any yard, garden, garage or outhouse belonging to and used with a dwelling.”Member’s explanatory statement
This amendment creates a new offence where a person has an article with them in a place other than a dwelling with the intention that it will be used in the course of or in connection with the commission by any person of an offence under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to trespass with intent to search for or to pursue hares with dogs etc.
Amendments 109H and 109J agreed.
Amendment 109K had been withdrawn from the Marshalled List.
Amendments 109KA to 109N
109KA: After Clause 55, insert the following new Clause—
“Recovery order on conviction for certain offences involving dogs
(1) This section applies where—(a) a person is convicted of an offence within subsection (5) which was committed on or after the day on which this section comes into force,(b) a dog was used in or was present at the commission of the offence, and(c) the dog was lawfully seized and detained in connection with the offence.(2) The court may make an order (a “recovery order”) requiring the offender to pay all the expenses incurred by reason of the dog’s seizure and detention.(3) Any sum required to be paid under subsection (2) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.(4) Where a recovery order is available for an offence, the court may make such an order whether or not it deals with the offender in any other way for the offence.(5) The following offences are within this subsection—(a) an offence under section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose);(b) an offence under section 30 of the Game Act 1831 (trespass in daytime in search of game etc);(c) an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) (trespass with intent to search for or to pursue hares with dogs etc);(d) an offence under section (Being equipped for searching for or pursuing hares with dogs etc) (being equipped for searching for or pursuing hares with dogs etc).”Member’s explanatory statement
This amendment provides for a court to order an offender to pay for the costs of seizing and detaining a dog where the dog has been lawfully seized and detained in connection with certain offences involving dogs.
109L: After Clause 55, insert the following new Clause—
“Disqualification order on conviction for certain offences involving dogs
(1) This section applies where—(a) a person is convicted of an offence within subsection (9) which was committed on or after the day on which this section comes into force, and(b) a dog was used in or was present at the commission of the offence.(2) The court may make an order (a “disqualification order”) disqualifying the offender, for such period as the court thinks fit, from—(a) owning dogs,(b) keeping dogs, or(c) both.(3) The disqualification order may specify a period during which the offender may not make an application under section (Termination of disqualification order) to terminate the order.(4) The court may, where it appears to the court that the offender owns or keeps a dog, suspend the operation of the disqualification order for such period as it thinks necessary for enabling alternative arrangements to be made in respect of the dog. (5) Where a court makes a disqualification order, it must—(a) give its reasons for making the order in open court, and(b) cause them to be entered in the register of its proceedings.(6) A person who breaches a disqualification order commits an offence.(7) A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.(8) Where a disqualification order is available for an offence, the court may make such an order whether or not it deals with the offender in any other way for the offence.(9) The following offences are within this subsection—(a) an offence under section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose);(b) an offence under section 30 of the Game Act 1831 (trespass in daytime in search of game etc);(c) an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) (trespass with intent to search for or to pursue hares with dogs etc);(d) an offence under section (Being equipped for searching for or pursuing hares with dogs etc) (being equipped for searching for or pursuing hares with dogs etc).(10) In section 171 of the Sentencing Code (offences relating to animals), after subsection (2) insert—“(3) See section (Disqualification order on conviction for certain offences involving dogs) of the Police, Crime, Sentencing and Courts Act 2022 (disqualification order on conviction for certain offences involving dogs) for orders relating to disqualification in the case of offences involving dogs under that Act, the Night Poaching Act 1828 and the Game Act 1831.””Member’s explanatory statement
This amendment provides for a court to make a disqualification order preventing an offender from owning or keeping a dog where the offender is convicted of certain offences involving dogs.
109M: After Clause 55, insert the following new Clause—
“Seizure and disposal of dogs in connection with disqualification order
(1) Where, on a court making a disqualification order, it appears to the court that the person to whom the order applies owns or keeps a dog contrary to the order, the court may order that the dog be taken into possession.(2) Where a person is convicted of an offence under section (Disqualification order on conviction for certain offences involving dogs) (6) by reason of owning or keeping a dog in breach of a disqualification order, the court by which the person is convicted may order that all dogs owned or kept in breach of the order be taken into possession.(3) An order under subsection (1) or (2), so far as relating to any dog owned by the person to whom the disqualification order applies, must make provision for disposal of the dog.(4) Any dog taken into possession in pursuance of an order under subsection (1) or (2) that is not owned by the person subject to the disqualification order is to be dealt with in such manner as an appropriate court may order.(5) But an order under subsection (4) may not provide for the dog to be—(a) destroyed, or(b) disposed of for the purposes of vivisection.(6) A court may not make an order for disposal of the dog under subsection (4) unless— (a) it has given the owner of the dog an opportunity to be heard, or(b) it is satisfied that it is not reasonably practicable to communicate with the owner.(7) Where a court makes an order under subsection (4) for the disposal of the dog, the owner of the dog may appeal against the order to the Crown Court.(8) In this section—“appropriate court” means—(a) the magistrates’ court which made the order under subsection (1) or (2), or(b) another magistrates’ court acting for the same local justice area as that court;“disqualification order” has the same meaning as in section (Disqualification order on conviction for certain offences involving dogs).(9) In this section references to disposing of a dog do not include—(a) destroying it, or(b) disposing of it for the purposes of vivisection.”Member’s explanatory statement
This amendment provides for a court to make an order for a dog to be taken into possession where a person owns or keeps the dog in contravention of a disqualification order made under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to disqualification orders on conviction for certain offences involving dogs.
109N: After Clause 55, insert the following new Clause—
“Termination of disqualification order
(1) A person who is subject to a disqualification order may apply to an appropriate court for the order to be terminated.(2) No application under subsection (1) may be made—(a) before the end of the period of one year beginning with the date on which the disqualification order was made,(b) where a previous application under that subsection has been made in relation to the same order, before the end of the period of one year beginning with the date on which the previous application was determined, or(c) before the end of any period specified under section (Disqualification order on conviction for certain offences involving dogs) (3), or subsection (5), in relation to the order.(3) On an application under subsection (1), the court may—(a) terminate the disqualification order,(b) vary the order so as to make it less onerous, or(c) refuse the application.(4) When determining an application under subsection (1), the court is to have regard to—(a) the character of the applicant,(b) the applicant’s conduct since the disqualification order was made, and(c) any other relevant circumstances.(5) Where the court refuses an application under subsection (1) or varies a disqualification order on such an application, it may specify a period during which the applicant may not make a further application under that subsection in relation to the order concerned.(6) The court may order an applicant to pay all or part of the costs of an application.(7) In this section—“appropriate court” means—(a) the magistrates’ court which made the disqualification order, or (b) another magistrates’ court acting for the same local justice area as that court;“disqualification order” has the same meaning as in section (Disqualification order on conviction for certain offences involving dogs).”Member’s explanatory statement
This amendment makes provision in relation to the termination or variation of a disqualification order made under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to disqualification orders on conviction for certain offences involving dogs.
Amendments 109KA to 109N agreed.
Amendment 109P had been withdrawn from the Marshalled List.
109PA: After Clause 55, insert the following new Clause—
“Section (Seizure and disposal of dogs in connection with disqualification order): supplementary
(1) The court by which an order under section (Seizure and disposal of dogs in connection with disqualification order) is made may—(a) appoint a person to carry out, or arrange for the carrying out of, the order;(b) require any person who has possession of a dog to which the order applies to deliver it up to enable the order to be carried out;(c) give directions with respect to the carrying out of the order;(d) confer additional powers (including power to enter premises where a dog to which the order applies is being kept) for the purpose of, or in connection with, the carrying out of the order;(e) order the person who committed the offence in relation to which the order was made, or another person, to reimburse the expenses of carrying out the order.(2) A person who fails to comply with a requirement imposed under subsection (1)(b) commits an offence.(3) A person guilty of an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.(4) Directions under subsection (1)(c) may—(a) specify the manner in which a dog is to be disposed of, or(b) delegate the decision about the manner in which a dog is to be disposed of to a person appointed under subsection (1)(a).(5) In determining how to exercise its powers under section (Seizure and disposal of dogs in connection with disqualification order) and this section the court is to have regard (amongst other things) to—(a) the desirability of protecting the value of any dog to which the order under section (Seizure and disposal of dogs in connection with disqualification order) applies, and(b) the desirability of avoiding increasing any expenses which a person may be ordered to reimburse.(6) In determining how to exercise a power delegated under subsection (4)(b), a person is to have regard, amongst other things, to the things mentioned in subsection (5)(a) and (b).(7) If the owner of a dog ordered to be disposed of under section (Seizure and disposal of dogs in connection with disqualification order) is subject to a liability by virtue of subsection (1)(e), any amount to which the owner is entitled as a result of sale of the dog may be reduced by an amount equal to that liability.(8) Any sum ordered to be paid under subsection (1)(e) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.(9) In this section references to disposing of a dog do not include—(a) destroying it, or(b) disposing of it for the purposes of vivisection.”Member’s explanatory statement
This amendment contains supplementary provisions in relation to a court making an order under the new clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to seizure and disposal of dogs in connection with disqualification orders.
Amendment 109PA agreed.
Amendment 109Q had been withdrawn from the Marshalled List.
109R: After Clause 55, insert the following new Clause—
“Disqualification orders: appeals
(1) Nothing may be done under an order under section (Disqualification order on conviction for certain offences involving dogs) or (Seizure and disposal of dogs in connection with disqualification order) with respect to a dog unless—(a) the period for giving notice of appeal against the order has expired,(b) the period for giving notice of appeal against the conviction on which the order was made has expired, and(c) if the order or conviction is the subject of an appeal, the appeal has been determined or withdrawn.(2) Where the effect of an order is suspended under subsection (1)—(a) no requirement imposed or directions given in connection with the order have effect, but(b) the court may give directions about how any dog to which the order applies is to be dealt with during the suspension.(3) Directions under subsection (2)(b) may, in particular—(a) authorise the dog to be taken into possession;(b) authorise the dog to be cared for either on the premises where it was being kept when it was taken into possession or at some other place;(c) appoint a person to carry out, or arrange for the carrying out of, the directions;(d) require any person who has possession of the dog to deliver it up for the purposes of the directions;(e) confer additional powers (including power to enter premises where the dog is being kept) for the purpose of, or in connection with, the carrying out of the directions;(f) provide for the recovery of any expenses in relation to the removal or care of the dog which are incurred in carrying out the directions.(4) A person who fails to comply with a requirement imposed under subsection (3)(d) commits an offence.(5) A person guilty an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale. (6) Any sum directed to be paid under subsection (3)(f) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.”Member’s explanatory statement
This amendment makes provision in connection with appeals in relation to orders made under the new clauses in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to disqualification orders on conviction for certain offences involving dogs and seizure and disposal of dogs in connection with disqualification orders.
Amendment 109R agreed.
Amendments 110 and 111 had been withdrawn from the Marshalled List.
Amendment 112 not moved.
Amendment 113 had been withdrawn from the Marshalled List.
Amendment 114 not moved.
114A: After Clause 55, insert the following new Clause—
“Urgent review of offences under section 61 of the Sexual Offences Act 2003
(1) The Secretary of State must establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003, within one month of the day on which this Act is passed.(2) A review under this section must consider—(a) incidence rates and rates of reporting by victims;(b) charging and prosecution rates for the offence;(c) the adequacy of sentencing guidelines for the offence;(d) the adequacy of police investigations into reports of the offence;(e) reoffending rates, and rates of offenders who commit one or more other sexual offences following a charge or sentence for administering a substance with intent;(f) the impact of the offence on victims.(3) A report on the findings of the review under this section, and any associated recommendations, must be published within six months of the day on which this Act is passed.(4) Where a report is published under subsection (3) a Minister of the Crown must make a statement to each House of Parliament on the contents of the report and associated recommendations.(5) Within three months of a report being published under subsection (3) a Minister of the Crown must make a statement to each House of Parliament on action that has been taken in response to recommendations made.”
My Lords, this amendment was debated on Wednesday, so I intend to speak very briefly to it. The purpose of the amendment is to ask the Government to set up a review of drinks spiking and needle spiking in pubs and clubs. In her response, the Minister said that the Home Secretary has asked the National Police Chiefs’ Council to review the scale of needle spiking. My amendment is very modest; all it does is require the Government to go one step further and set up a review of this practice, about which there is much public concern. I wish to test the opinion of the House.
Amendment 114B not moved.
114C: After Clause 55, insert the following new Clause—
“Accountability of public authorities: duties on police workforce
(1) Members of the police workforce have a duty at all times to act within their powers—(a) in the public interest, and(b) with transparency, candour and frankness.(2) Members of the police workforce have a duty to assist court proceedings, official inquiries and investigations—(a) relating to their own activities, or(b) where their acts or omissions are or may be relevant.(3) In discharging the duty under subsection (2), members of the police workforce must—(a) act with proper expedition,(b) act with transparency, candour and frankness,(c) act without favour to their own position,(d) make full disclosure of relevant documents, material and facts,(e) set out their position on the relevant matters at the outset of the proceedings, inquiry or investigation, and(f) provide further information and clarification as ordered by a court or inquiry.(4) In discharging their duty under subsection (2), members of the police workforce must have regard to the pleadings, allegations, terms of reference and parameters of the relevant proceedings, inquiry or investigation, but are not limited by them, in particular where they hold information which might change the ambit of the proceedings, inquiry or investigation.(5) The duties in subsections (1) and (2) are subject to existing laws relating to privacy, data protection and national security.(6) The duties in subsections (1) and (2) are enforceable—(a) by application to the relevant court or inquiry chairperson by any person affected by the alleged breach, or(b) by the court or inquiry of its own motion, or(c) where there are no extant court or inquiry proceedings, by judicial review proceedings in the High Court.”Member’s explanatory statement
This would establish a duty of candour on members of the police workforce.
Amendment 114C would place a statutory duty of candour on members of the police workforce. It would create a duty on law enforcement to act at all times in the public interest and with transparency, candour and frankness, and to assist in court proceedings, official inquiries and investigations where the activities of members of the police workforce, including omissions, may be relevant. The issue was discussed at some length in Committee and I certainly do not intend to repeat all that was said then.
In his 2017 report on the pain and suffering of the Hillsborough families, Bishop James Jones proposed a duty of candour to address
“the unacceptable behaviour of police officers—serving or retired—who fail to cooperate fully with investigations into alleged criminal offences or misconduct.”
In June 2021, the Daniel Morgan Independent Panel, which I believe took eight years to report, found:
“There was not insignificant obstruction to the Panel’s work … the Metropolitan Police did not approach the Panel’s scrutiny with candour, in an open, honest and transparent way”.
The panel recommended
“the creation of a statutory duty of candour, to be owed by all law enforcement agencies to those whom they serve”.
The chair of the panel, the noble Baroness, Lady O’Loan, said in this House that
“the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing”.—[Official Report, 22/6/21; col. 134.]
Last June, the Government told us in this House that they were still considering the duty of candour in response to Bishop James Jones’s report four years earlier. We now have before us a flagship home affairs and justice Bill from this Government, which prioritises new offences against those who protest but is silent on the failures of justice highlighted in the Bishop Jones report and by the Daniel Morgan Independent Panel and the resulting call, both in the report and by the panel, for the statutory duty of candour provided for in this amendment. It is time for action and a decision, and an end to this seemingly never-ending continuing government consideration of this issue. I beg to move.
I have added my name to this amendment for four reasons. First, the need is clear: we need complete protection of victims and the public interest, and to make certain that recalcitrant are no longer able to delay. Secondly, the duty of candour is clear: there is no doubt about what it entails. Thirdly, the remedies provided in the proposed new clause are extensive and proportionate. Finally, there can be no reason for delay. Why does it need consultation? It does not. The proposed new clause and the need are clear; we should pass this amendment.
My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, and the noble and learned Lord, Lord Thomas, for tabling this amendment.
Briefly, a duty of candour would bring about a change of mindset and culture by requiring openness and transparency about what has happened in investigations. It would lead to a more efficient deployment of resources, which would have a beneficial impact on the public purse. It could very much help to contradict allegations of police corruption and will grow confidence in the leadership of the police service because there would be a statutory obligation of openness and transparency, and therefore an assumption there would be compliance with the law rather than a suspicion of cover-up or, even worse, corruption. The amendment is framed to protect all necessary matters but to enable a different positive approach to the delivery of policing. I support the amendment.
My Lords, I welcome that the opposition is united in support of this amendment.
The police have failed to own up to many of their mistakes. I personally have experienced police evasion, police spying and police deceit. It beggars belief that there is no duty of candour on our police force already. It actually imposes their own idea of what the law says and this is completely wrong, so I very much support this amendment.
My Lords, as a former police officer, I must tell the House that leaving the failure to abide by such a duty of candour to the police misconduct process, as the Government are asking us to do, is inadequate, as the decision on whether to investigate or take misconduct proceedings will be left in the hands of the police themselves.
If it is in the interest of the police that something is covered up, they will not investigate and they will not take action against the officers responsible. As the noble Baroness, Lady O’Loan, has just explained, her experience of the inquiry into the Daniel Morgan murder demonstrates beyond reasonable doubt the need for this amendment, and we support it.
My Lords, I have not thought an awful lot about this, but the principle, which seems unarguable, is that police officers should have a duty of candour. They are not the only ones who should; many other groups might want to adopt a similar approach, but so far as the police service is concerned, which is what this amendment is about, it is rather unarguable. How it works ought to be clearly thought through, which I guess is why the Government are consulting on it. The only question I had, which I have just discussed briefly with the noble and learned Lord, Lord Thomas, is how this would work with the criminal disclosure process and how that would impact on any ongoing prosecution or, obviously, any separate public inquiry. However, that is a matter of implementation rather than of principle. In general terms, I see no reason why it should not be implemented for the police; perhaps others may consider it too.
My Lords, in the Stephen Lawrence inquiry, one of the challenges we faced was that the police were investigating the police—they were marking their own homework. Although Kent Police did a fantastic job, nevertheless there were areas where they could not quite press hard enough. They were very good in what they did, but it was not adequate, and therefore we proposed in the Stephen Lawrence inquiry that, whenever there is an incident, it should be investigated by an independent body.
This amendment would enhance that on the whole question of duty of candour. Again, during that inquiry we were given all the papers. There was no hidden stuff, so for that I must again congratulate the Met. However, this amendment is vital in order to support independent police inquiries, whenever there are areas of great concern. I hope nobody sees this as either intrusive or doubting that most of our police forces really want to do the best for their communities and places. Nevertheless, a duty of candour would impose a very good way of saying what concerns some people about the police, so I support the amendment.
My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, for affording us this further opportunity to debate the case for a statutory duty of candour. They have rightly highlighted the importance of the police’s openness and transparency, which is a very serious matter. It is at the heart of public confidence in policing and ensures that the police are held to the highest standards; this is crucial to maintaining that confidence.
As I did in Committee, I start by highlighting the extensive work that has already been done and is ongoing to improve integrity and openness in policing. Back in February 2020, we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020 and, in so doing, has the force of law. It is worth quoting in full the relevant paragraph:
“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness.”
A failure to co-operate in this way constitutes a breach of the statutory standards of professional behaviour, by which all officers must abide, and could therefore result in a formal disciplinary sanction. I put it to the House at this point that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in this amendment, as they could ultimately be dismissed for a breach.
The duty to co-operate has been introduced since the issues that were highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel, which were later highlighted in its report. We are keen that this duty becomes fully embedded within the police workforce. The recently announced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a further test of this duty.
In addition to the standards of professional behaviour, the College of Policing’s code of ethics delivers a set of policing principles and ensures that ethics are at the centre of all policing decisions. The college is currently reviewing the code and intends to further promote a policing culture of openness and accountability. The Government are confident that the work of the college will ensure that candour is directly addressed through this review.
Noble Lords will be aware that a response to the Daniel Morgan Independent Panel and Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public authorities. Before the Government respond to these reports, it is clearly imperative that the Hillsborough families are given the opportunity to share their views. We hope that this happens as soon as is practicable.
Bishop James’s report also encouraged public bodies to sign the proposed charter for bereaved families. This has now been signed by the NPCC, on behalf of police forces, so that the perspective of the bereaved families is never lost. The charter commits forces to acting with candour, and in an open, honest, and transparent way, when facing public scrutiny, for example through public inquiries.
Regarding the point made by the noble Lord, Lord Paddick, the decision on disciplinary action is not just for forces. Of course, the IOPC can also call it in.
In conclusion, we believe that the existing legislation requiring officers to co-operate already amounts to a duty of candour, and this is complemented by the further commitments that policing has made to transparency and openness. That being the case—
The Minister has described a duty of co-operation, which is not the same as the duty described by the noble Lord, Lord Paddick, and others, in the amendment. It is not fair to explain that they are the same and that a duty of co-operation goes further than a duty of candour. They are two different duties and the obligation to comply with charters and standards is very different from the obligation to comply with the statutory duty.
I was making the point that, in some ways, the duty of co-operation goes further because of the sanctions afforded to it, though I know that the noble Baroness, Lady O’Loan, for whom I have the greatest respect, disagrees with me.
Regarding an officer resigning or retiring, if he or she is found to have committed gross misconduct, the chair of proceedings can decide that they would have been dismissed if they had not already left the force, so leaving the force is no longer a way out, since this automatically places the officer on the College of Policing’s barred list, preventing them from working in policing again.
I know that the noble Baroness does not agree, but I hope that the noble Lord will withdraw the amendment, although I am not sure that he will.
I thank all noble Lords who have spoken in the debate, particularly the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to the amendment. I also thank the Minister, speaking on behalf of the Government, for the Government’s response.
The fact that we are now four years on from Bishop James Jones’s report and the Government are still considering their response to the call for a duty of candour simply indicates what a relatively low priority this issue must be for the Government. The Government said in Committee, and indeed the Minister repeated it today, that:
“The Government have already made significant changes to ensure that officers can be disciplined if they mislead the public, and we are committed to properly consider and respond to the recommendations for a duty of candour, as highlighted in Bishop James Jones’s report.”—[Official Report, 3/11/21; col. 1255.]
In the light of what the Government have just had to say, which appears to be that they think that the steps they have taken are more significant than a duty of candour, there must surely now be a real likelihood that the Government will eventually decide against a statutory duty of candour, deciding that internal disciplinary codes and practices are sufficient, when, as the noble Baroness, Lady O’Loan, and others have said, they clearly are not. We now have a statutory duty of candour in the National Health Service.
I conclude by quoting the words of the noble Lord, Lord Pannick, in Committee, on 3 November 2021, which can be read in Hansard:
“The statutory duty of candour is vital not just to affect the culture of the police and enhance public confidence in policing but to give confidence to those police officers who face enormous internal pressures from their colleagues not to be candid. They need support; they need a statutory regime they can point to in order to justify to their colleagues what is required.”—[Official Report, 3/11/21; col. 1253.]
I wish to test the opinion of the House.
114D: After Clause 55, insert the following new Clause—
“Training on stalking
The Secretary of State must seek to ensure that every professional in the criminal justice system, including staff of the Crown Prosecution Service, probation officers, police officers, and other relevant public officials involved in any investigation or legal proceedings involving stalking, has attended and completed relevant specialist training.”Member’s explanatory statement
This amendment aims to promote the early identification of stalking, and better investigation and prosecution of the crime, by requiring the Government to implement the adoption of specialised stalking training for relevant public officials which is currently not mandated.
My Lords, I start by thanking several noble Baronesses who, for many years, have been trying to persuade Her Majesty’s Government to address stalking and understand it rather better than we have done hitherto. In no particular order, I thank the noble Baronesses, Lady Royall, Lady Brinton—who we will be hearing from in a minute—and Lady Newlove, and pay tribute to them for their persistence.
This is a simple and brief amendment, designed to ensure that the many agencies and individuals that encounter different forms of stalking know better what it is they are dealing with. There are two key messages that we need to take on board. The first is that stalking is carried out in England and Wales on an industrial scale. There were 1.5 million victims of stalking in 2019-20 in England and Wales. Only 0.1% of those instances resulted in a conviction. Around 77% of that 1.5 million experienced an average of over 100 stalking incidents before they actually plucked up the courage to report it to the police. For those noble Lords of a mathematical bent, 77% of 1.5 million is not a million miles away from 1 million, and if you multiply that by 100, you start to get some sense of the scale of what we are talking about. It is staggering.
The second point that it would be helpful to take on board is the complexity of stalking. Forensic psychologists and psychiatrists have developed the “stalking risk profile”, the authoritative tool used to understand and codify the different types of stalking. It outlines five different stalker types, and I shall briefly take noble Lords through them and explain why as I do it.
The five types are broken down by the prevalence of each in a clinical setting. What is relevant for today’s amendment is not the first and predominant stalker type, known as the rejected stalker, which has the highest prevalence of violence and will pursue the victim, often a former partner, for either reconciliation or revenge. The rejected stalker type is responsible for 54% of stalking incidents—by a strange coincidence, almost exactly the estimated amount of stalking incidents that are domestic-abuse related.
How about the other 46%? Before I go on to that, I pay tribute to the Government, the NPCC and College of Policing for the new national framework for delivery for policing violence against women and girls announced by Maggie Blyth last month. It is genuinely a very positive leap forward for dealing with stalking, primarily domestic stalking. However, even domestic abuse stalking is complex. Alongside the framework, as you can see on the College of Policing website, is a document called the “framework toolkit”, which breaks down by type of incident all the different types of stalking and harassment that are likely to take place; it then subdivides them into the myriad different laws and types of guidance that the police should consider when trying to work out what type of stalking incident this is. I am a lay man and I know a certain amount about it, but my observation would be that, in many cases, one would require a PhD in criminology to follow the decision tree of all the ways in which one might respond to an incident, and how best to deal with it.
What about the other four stalker types? We have the resentful stalker, which is about 15% of that 1.5 million. They often have a deliberate intent to cause fear or distress to a victim in response to perceived mistreatment. Legal sanctions often exacerbate their behaviour, and they frequently require psychiatric treatment. I would venture to guess that the resentful stalker is in many cases responsible for the shameful incidents that we hear about, whereby leading politicians, particularly female politicians in this country, from the other end of the Palace of Westminster, receive frequently hateful and disturbing threats to themselves and their safety, as well as that of their families and staff. Some 15% of stalkers are doing that.
The next category is the intimacy-seeking stalker. This is somebody who is quite frequently mentally unstable and wants to have an intimate relationship with the person they are stalking. You may recall one or two quite well-known women, usually, in the public eye, perhaps well-known journalists—in one instance, somebody who not infrequently appears on “Newsnight”, who has had the experience of being stalked by somebody in this category since they met briefly many years ago at university. I suspect that that individual has received not just 100 instances of stalking by this individual— I imagine it probably goes into the thousands.
The next category is the wonderfully named incompetent stalker, which represents about 11% of the 1.5 million. This individual tries to forge a relationship with the victim in socially inappropriate ways. Again, frequently, psychiatric help is required to try to make them understand what it is that they are doing.
In the fifth and last category is the predatory stalker. They stalk victims for sexual gratification, often in preparation for an assault, and sex offender treatment may be required. I suspect that in that category goes a certain rather infamous gentleman who until recently was in the police force but is now a guest at Her Majesty’s pleasure for a very long time indeed.
So how can the Ministry of Justice and the Home Office help those charged with protecting these 1.5 million victims, particularly the substantial number—46%—who are not being targeted by the rejected, domestic abuse-type stalker? The new framework makes a good start, but it does not make use of some of the very effective initiatives that are out there, such as MASIP, which I discussed briefly with the Minister this morning, or Lifeline, a specialist training course for individuals who have to look at stalking developed by the Suzy Lamplugh Trust. It is extraordinarily effective, and dovetails very effectively into Domestic Abuse Matters, which is the predominant domestic abuse training that police and other agencies are receiving.
I do not expect the Minister to stand up at the end of this and say, “Lord Russell and all the rest of you, you’re completely right, we’ve totally taken it on board and we’re going to do exactly what you ask”. I would be rather alarmed if she did. But what I would ask her and her colleagues and advisers to do is to carefully consider this problem—the scale and the sheer complexity of stalking, particularly non-domestic abuse stalking—because it not going to go away.
The reaction of the Government and statutory agencies to the incidence of violence against women and girls over the last three or four years strongly reminds me of the fable about the frog who was burned alive sitting in water that was gradually heating up, as incident after incident, story after story, heats up in this case the political temperature, until the politician in the bath suddenly finds that they are soon going to be in need of medical help, because they have allowed this situation to develop. Stalking has similar characteristics; it is not going to go away.
Many people in public life, especially the lady politicians we were referring to earlier, know exactly what it feels like to be stalked. Based on the law of averages, I would be astonished if some of the Ministers dealing with this, their advisers and extended teams, have not themselves personally experienced stalking in some form or another. Stalking is not selective when it chooses its victims.
This amendment is designed to strongly suggest to Her Majesty’s Government that, in order to avoid the equivalent of a dreadful Sarah Everard moment that is very specifically related to stalking, they should voluntarily choose to act proactively and put in place an effective and comprehensive approach to enable the sheer complexity and scale of stalking to be understood better—and they should do that now. I beg to move.
My Lords, I thank the noble Lord, Lord Russell, for his comprehensive introduction to this amendment and his explanation of the different types of stalking.
When Gracie Spinks was stalked and then murdered in June by a non-partner, her case was made infinitely worse by the behaviour of the police both before and after she died. In February, she had reported the worrying behaviour of Michael Sellers to her local police. Despite his behaviour escalating, she had no support from them. There are also issues about the behaviour of officers after her murder, and five have now been issued with IOPC disciplinary notices.
As the noble Lord, Lord Russell, outlined, the 2019-20 Crime Survey for England and Wales estimated that 3.6% of adults had experienced stalking in the last year. The noble Lord said that amounted to about 1.5 million people, of whom just under 1 million were women and over half a million were men. As around 46% of stalking is carried out by non-partners or former non-partners of the person, it is not covered by the domestic abuse legislation nor, because a large number of men are involved, the violence against women and girls legislation, and is therefore not covered by the new framework. The amendment asks for a strategy on stalking to ensure that front-line staff throughout the criminal justice system are trained and can identify, and respond appropriately to, potential and actual stalking cases.
I and others have been asking for a strategy and for comprehensive training on stalking for over a decade. Earlier this year, during the passage of the Domestic Abuse Bill, the Minister was kind enough to say that that Bill was not an appropriate vehicle for amendments about stalking because almost half of stalkers are not partners or former partners of the person they are stalking, and she proposed that we should table some amendments to this Bill. Yet at every stage the Government have resisted this.
For anyone, such as myself, who has been stalked or who knows the damage done to family and friends who have been stalked, it seems as if things are now going backwards. The case of Gracie Spinks, brutally murdered four months after she had reported the worrying and escalating behaviour of her stalker, demonstrates why training for front-line staff, including police, and an integrated strategy for managing the early identification of stalking and, particularly, fixated and obsessed people, are so important.
It is good that the Government have moved on domestic abuse and on violence against women and girls, and I thank them for it, but until this Government understand that stalkers continue to ruin their victims’ lives with escalating behaviour, resulting in cases of violence and murder, unfortunately they will not change anything on the front line for those trying to help these victims, who are mainly women.
I hope the Minister is able to help take this issue forward. Could she please say when is actually a good time to bring something forward? Ten years of warm words from Ministers is just not enough when staff in the criminal justice system are still not being trained even to recognise, let alone handle, stalking.
My Lords, I am proud to have added my name to this amendment, which I believe is vital. I thank the noble Lord, Lord Russell, for his kind words but, most importantly, for giving the stalking facts and figures, which are truly startling. The scale is huge and the complexity daunting, and he gave a brilliant and well-informed exposé of the problem.
It is true, as noble Lords have said, that great progress has been made in the last 10 years since stalking was first recognised as an offence. I am grateful to the Minister for her work and to noble Lords on all sides of the Chamber who have pursued this issue. I must also mention the indefatigable work and campaigning of Laura Richards, our mutual friend John Clough, the families of victims, and courageous survivors. My work at Oxford, for which I refer noble Lords to my interests as set out in the register, brings me into contact daily with staff and students who suffer from the insidious crime of non-domestic violence-related stalking. They live in constant fear alongside the 1.5 million other victims.
Among the progress that has been made, I am of course delighted that there is now a national strategy for the policing of violence against women and girls but, as has been said, that does not cover the vast number of people who are being stalked where the stalking does not relate to domestic violence. However, it is brilliant that violence against women and girls must now be a strategic priority for all police forces and that they will be assisted by a new local duty to tackle it as part of any work in partnership with other parts of the criminal justice system and all parts of the policing landscape. I celebrate that at last there is a truly national approach that should lead to the identification of the most dangerous and serial perpetrators of violence, more focused investigations, an increase in prosecutions and a reduction in the murder of women, serious harm and repeat victimisation.
Of course, there is a “but”, hence the amendment. We desperately need a strategy for all categories of stalking, and I endorse the comments made by the noble Baroness, Lady Brinton, and the noble Lord, Lord Russell. When are we going to have a more global strategy in relation to stalking?
Strategies are crucial and welcome but, like legislation, they have to be implemented in order to have their desired, much-needed effect. That requires systematic specialist training. As noble Lords will be only too aware, my long-standing concern has been about stalking in all its forms, not just that which involves domestic stalking. Training must be provided relating to all forms of stalking. There must be a national approach so that no matter where a victim seeks help and reports an incident, and wherever a perpetrator is apprehended, those who answer the phone and take whatever steps are necessary to support the victim and investigate a case must have similar experience.
As we know from the excellent inspections by HMICFRS, reports by experts and the evidence of survivors and the friends and families of victims, to date that has not been the case. These women, and sometimes men, have been utterly failed by the piecemeal approach to training. It is no exaggeration to say that countless women, such as Hollie Gazzard, would be still alive if there had been appropriate training, if their calls had been responded to in the proper manner and if the people answering the calls had understood what stalking was. Helen Pearson called the police 144 times over five years. If they had understood that she was a victim and was not wasting the police’s time, her situation could have been properly dealt with.
My strong preference would be to have a regulation in the Bill to provide for mandatory training, but I know from long experience that that would not be accepted by the Government. I first spoke about this in moving an amendment in February 2012, supported by the noble Baroness, Lady Brinton, when we secured agreement to create the offence of stalking. I have been told on countless occasions since then that the appropriate place for training requirements is in guidance—but guidance has ensured that only a few police forces have taken the need for training seriously and most have not, and women have been murdered and others have had their own lives and those of their families destroyed. Over the years it has been cruelly apparent that guidance is not enough.
With the ever-increasing focus on and understanding of the extent of the appalling violence against women and girls, including stalking, and with the appointment of Maggie Blyth to spearhead the policing strategy, I hope that the need for quality nationwide training will be understood and that it will be implemented. However, I would like an assurance from the Minister that the Secretary of State really will seek to ensure that the training takes place and, vitally, that there will be the necessary funding to enable it. I would also be grateful if she could explain what mechanism is or will be in place for that to be monitored, and how we as a Parliament can hold the Government to account on this vital issue.
My Lords, I pay tribute to the tireless work over many years of all three noble Lords who have spoken in this debate. Stalking remains widely misunderstood by many in the criminal justice system—specifically, how serious and complex it can be and how widespread it is, as noble Lords have explained. The amendment aims to remedy that situation, and we support it.
My Lords, I thank the noble Lord, Lord Russell, for tabling this amendment. I praise the tireless work of the noble Baronesses, Lady Royall and Lady Brinton, in this area. I am delighted to put my name to the amendment because of the work of Laura Richards, who has also worked tirelessly. Even though she is not in the UK, she still works tirelessly on podcasts, which I suggest that everyone listens to; they are brilliant in the stories that they cover, but it is very sad to hear the journeys that some women go through.
I will not add much more to what my colleagues have said. Stalking, on its own, is horrific. I really welcome what we now have on domestic abuse stalking and I thank the Minister for the conversations we have had. However, it scares me that this piece of legislation has been left to wander in the fields again. I feel we have taken 10 steps forward and 50 back. Listening to victims of this horrendous crime in my former role as Victims’ Commissioner—victims I am still listening to—I know that the problem with stalking is that you cannot see it. If you had a scab on your hand and we could see it, we could then do something tangible. Stalking is horrific and coercive, both mentally and physically.
When we look at amending and putting this legislation into place, the default is that we must train better. Now we are asking that we have a standard of training for non-domestic abuse stalking. I believe that every word from the noble Lord, Lord Russell, and the noble Baronesses, Lady Brinton and Lady Royall, adds to the quality of what this training should be. Unfortunately, if a stalking victim phones up, it will not be the first time; they will be at the end of their tether. In society and under Governments past and present, we have waited until somebody is murdered brutally—taken. That should not be the case, as the horse has already bolted.
I ask the Government to look at this again: please put this national strategy for non-domestic abuse stalking right next to domestic abuse stalking. Then it will not be piecemeal and all these agencies will fully get what happens to victims of stalking.
My Lords, the first Bill I can remember that dealt with this subject did so under the name of “harassment”. That was before 1997. This whole evil has grown extraordinarily since then. I am not aware of any real analysis of the reason for that exponential growth, but it is certainly important that the people who have to deal with it understand what is involved. Unless and until that is developed fully, the problem will probably continue to increase.
In the list of people in this amendment, I do not see mention of the judiciary. Does the noble Lord, Lord Russell, have it in mind? Obviously, judges have to understand lots of different things that come before them and the judicial training system has been developed very much over a number of years. It is very effective. If it is intended to include the judiciary, it would be very advisable to say that, because the judicial training system would take account of that and, no doubt, as he said, look for the resources required to do it properly.
My Lords, I add our strong support for this amendment. I pay tribute to my noble friend Lady Royall, the noble Lord, Lord Russell of Liverpool, and the noble Baronesses, Lady Newlove and Lady Brinton, along with many others, for their tireless efforts and leadership on this issue and their informative and inspirational words this afternoon.
The crucial point is that stalking is an offence that escalates. Victims and their families are being let down to an extent by the failure to recognise the seriousness of this crime—although, to be fair, that is improving—and the failure to manage serial and dangerous offenders. This Chamber has supported stronger action to tackle stalking perpetrators and protect victims in multiple pieces of legislation over the past few years, yet we find ourselves having to raise it again.
As the noble Lord, Lord Russell, pointed out, the amendment is a fairly moderate ask. Having said that, it is exceptionally important; it will make a huge difference to ensure that those interacting with stalking victims and investigating these offences have specialist training. The Minister should accept it and the Government should go even further in tackling this vile, criminal behaviour, on which the whole Chamber is united.
My Lords, I join others in paying tribute to the noble Lord, Lord Russell of Liverpool, and his ongoing determination on this subject. The noble Baroness, Lady Royall, must also be commended as she not only educated me on the whole subject, way back when, but has shown that same tenacity—ditto the noble Baroness, Lady Brinton, who regularly shares her story with us. I join the noble Baroness, Lady Royall, in commending John Clough and others for their untiring campaigning on this. I have met John Clough; he is a truly wonderful man.
I totally get the sentiment of what the noble Baroness, Lady Royall, and the noble Lord, Lord Russell of Liverpool, are saying. He and I spoke earlier; we reflected on the journey we have come on, since I got into your Lordships’ House almost 10 years ago, in terms of the perception and awareness of and attitudes towards domestic violence, domestic abuse and stalking. While domestic abuse was certainly on the radar, there was a clunking attitude towards dealing with it; stalking is one step behind it, but to say we have gone backwards is just not the case—we have made great progress. However, I acknowledge—I think he sees this—that we have further to go, particularly in training on stalking and domestic abuse. It is a most dreadful crime; the impact on victims can be so dreadful.
I talked at length in Committee about the many actions to address stalking that we are taking through the tackling violence against women and girls strategy. I will not go through them all again, but the Government are totally committed to protecting and supporting the victims of stalking. We are determined to do everything we can to stop perpetrators at the earliest opportunity. On the point of the noble Lord, Lord Russell, that the VAWG strategy does not deal with male victims, I say that it makes it clear that, while the term “violence against women and girls” is used throughout the document, it refers to all victims of the relevant offences, including stalking. I am glad he raised that, as it allows me to clarify it.
The noble Lord also brought up the point that stalking is not only an awful crime but a very complex and multifaceted one. We talked about that earlier as well—the resentful stalker who may go after politicians, the intimacy-seeking stalker, the incompetent stalker and the predatory stalker. They come in all forms. As he said, many are not former partners of their victims, including so-called intimacy seekers and predatory stalkers. Within each category, there is a wide range of different types of stalking behaviour. Therefore, the Government totally acknowledge that the police need to be well informed about the many characteristics of stalking and the stalker to effectively investigate stalking cases. He can rest assured—I know he does—that it is a priority for the Government. I empathise with the aim of this amendment, but it is important to acknowledge the progress that is being made in the work we are doing.
It is vital that the police are provided with the correct materials and training to deal with stalking cases appropriately. That is why, in 2019, the College of Policing released a set of new advice products on stalking for police first responders, call handlers and investigators. These make clear, for example—I say this in response to my noble and learned friend Lord Mackay of Clashfern—the key differences between stalking and harassment. A range of advice and guidance products has been published by the College of Policing for forces to deliver locally to help responders to investigate stalking effectively, understand risks and respond appropriately to stalking cases. I know that training is also available to the police from providers in the charitable and private sectors. The noble Lord, Lord Russell of Liverpool, and I talked earlier about the work of the Suzy Lamplugh Trust, which runs the National Stalking Helpline and has been piloting a new training course for police called “Stalking Matters”.
Within Her Majesty’s Prison and Probation Service, all new probation staff and prison offender managers are required to complete mandatory domestic abuse awareness online learning, which includes a specific module on stalking. The module has recently been updated and rewritten, based on current research, by subject matter and academic experts within HM Prison and Probation Service. A process map has been developed to set out a consistent approach to working with stalking in the probation service, which provides links to relevant support and guidance documents, as well as learning that staff can complete. Furthermore, the stalking practitioner guidance is being finalised; this aims to raise awareness of the nature of, and various risks associated with, stalking. It will also direct practitioners to the support that is available within HM Prison and Probation Service when working with perpetrators of stalking.
When we had an opportunity to speak earlier, the noble Lord, Lord Russell of Liverpool, and I talked about the complexity involved; while the report from Maggie Blyth was excellent, there is complexity in practitioner understanding. I will take that away and we can perhaps discuss it further; there is no point having these things if they are not readily and easily understandable.
I now come to training within the CPS. E-learning modules are available to prosecutors; these cover the stalking and harassment offences, with emphasis on building a strong case, working closely with the police and engaging with victims throughout the legal process. Alongside the online course, elements of stalking and harassment are also covered in tutor-led mandatory training on proactive disclosure and hate crime. This training supports the Crown Prosecution Service’s legal guidance on stalking and harassment and restraining orders, the joint stalking and harassment protocol, and the associated checklist that must be used by police and prosecutors to ensure that they are taking the correct action in stalking cases.
The noble Baroness, Lady Royall, talked about police resources. She will know that we have a substantial police settlement for 2022-23 but her underlying point, I think, is that we have to put it to good use, and that the Government’s priorities need to be reflected in the work that the police do. She and the noble Lord, Lord Russell, also talked about the importance of data, the monitoring of ongoing work and Parliament’s duty to hold the Government to account on the policies that they make.
Of course, the police, the CPS and the probation service are operationally independent of government. The noble Lord, Lord Russell, and I discussed earlier the issue of mandating what training they should receive, especially, as I have just set out, when there is so much good work happening already. There is always more to do, but I do not think that the mandating of training is the best way of doing this, given the good work that is going on. There is also a very real risk that, if we were to legislate for one crime type, it might then suggest to law enforcement agencies that it should be prioritised over others. I know that that is not what the noble Lord and the noble Baroness seek. Appropriate training for criminal justice system professionals on tackling stalking is vital, but so too is training on tackling domestic abuse, sexual offences and other crime types. We do not regard these as less important; neither, I know, do the noble Lord or the noble Baroness.
In acknowledging and empathising with the sentiment behind the amendment put forward by the noble Lord, I assure him that the training provided to professionals working with the criminal justice system on stalking is robust and helps to address issues such as early identification of stalking cases—but I also acknowledge that there is more work to be done. I hope that the noble Lord will be content to withdraw his amendment in the knowledge that I have addressed his concerns as far as I can, and acknowledging the work that has been done. I know that we will come back to these matters at a future occasion.
My Lords, I thank the Minister very much for what she said. As usual, she has been thorough and comprehensive. She said what I would have expected her to say, and I thank her for that. I understand that there is a certain point beyond which she is unable to go; I will come back to that in a minute.
I thank the noble Baroness, Lady Brinton, for reminding us—and me—that stalking affects a very large number of men, as well as women. It is easy to forget that, as there has been so much focus on violence against women and girls. The noble Baroness, Lady Royall, reminded us that we are at about our 10-year anniversary of trying to get Her Majesty’s Government to focus on this and acknowledge that it will not go away. As the noble and learned Lord, Lord Mackay, said, it ain’t getting better, it is getting worse, and we do not completely understand why this is so badly the case.
The noble Lord, Lord Paddick, was able to remind us from his own experience that guidance is not enough, in and of itself. The noble Baroness, Lady Newlove, reminded us of the role of champions such as Laura Richards, and others, who have been speaking up very effectively for the many victims—giving them a voice, trying to make us understand how they feel and what they have gone through. As she said, stalking is insidious. I suspect that, by the law of averages, we all probably know somebody who has been stalked, albeit that it is probably not a subject that we would readily raise around the dinner table. I suspect that, if we spoke to such people who we know—if they were prepared to open up about what their experience was like—and listened to them and watched the look in their eyes as they spoke about it, it would be pretty wrenching; that is the reality of it.
The noble and learned Lord, Lord Mackay, made a very good point about the judiciary, with which I absolutely agree; the judiciary needs training just as much as the rest of us. However, for the judiciary to be able to exercise its duties properly, it is incredibly important that among all the different bodies charged with identifying when a case of stalking is serious enough to become the subject of a prosecution, the way that this is pursued and the case is put together, by people who know what they are doing, is as watertight as it is humanly possible to be. However well intended and well trained, if a judge is faced with a prosecution case that, frankly, is not watertight, then, however strongly he or she may feel that an injustice is being done, if the case being put forward is inadequate, the law must follow its duty, possibly deciding not in favour of the victim—and it would not be the victim’s fault. That is the essence of what we are trying to avoid; it is going on and it will continue to go on until we really grasp it.
I will not detain your Lordships. I had hoped that we would do this in 30 minutes, but we will do it in under 45 minutes. I thank the Minister again for what she said, and the noble Lord, Lord Coaker. There is a huge focus on the inputs in many of these interactions from the Front Bench: there is a long list of money for this, an initiative for that, this service having this and that service having that. To come back to the issue of data, in the future I would like to hear less about inputs and more about outputs. We need the evidence that these input are actually working and making a difference. I know we will come back to this subject, but I genuinely believe that, until and unless all the different bodies dealing with these distraught victims, who come to the police perhaps after 100 instances of insidious stalking, are equipped with the knowledge and experience they need to really grab hold of it and give victims some justice, it will continue to haunt us and, indeed, stalk us. I beg leave to withdraw the amendment.
Amendment 114D withdrawn.
Amendment 114E not moved.
114F: After Clause 55, insert the following new Clause—
“Offences motivated by hostility towards the sex or gender of the victim
(1) In this section—“relevant crime” means a reported crime in which—(a) the victim or any other person perceived the alleged offender, at the time of or immediately before or after the offence, to demonstrate hostility or prejudice based on sex, or(b) the victim or any other person perceived the crime to be motivated (wholly or partly) by hostility or prejudice towards persons who are of a particular sex; “sex” has the same meaning as in section 11 of the Equality Act 2010 (sex).(2) The Secretary of State must make regulations requiring the chief officer of police of any police force to provide information relating to—(a) the number of relevant crimes reported to the police force, and(b) the number of those crimes which, in the opinion of the chief officer of police, would be subject to subsection (4).(3) A court considering the seriousness of an offence arising from a relevant crime not included in subsection (4) must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor when determining a sentence.(4) Subsection (3) does not apply to—(a) an offence under the law of England and Wales which is for the time being specified in Schedule 3 to the Sexual Offences Act 2003, other than the offence specified in paragraph 14 of that Schedule (fraudulent evasion of excise duty),(b) an offence under the law of England and Wales which is for the time being specified in Part 6 of the Domestic Abuse Act 2021, or(c) an offence under the law of England and Wales which is defined in section 1 of the Domestic Abuse Act 2021 as “domestic abuse”.”Member’s explanatory statement
This amendment would require police forces to record data on crimes motivated by hostility towards the victim’s sex or gender, as well as requiring courts to take into account this hostility as an aggravating factor when deciding the seriousness of cases which are not sexual or domestic offences.
My Lords, one of the themes that has come up again and again when we debate this Bill has been the need to do more to protect women and girls from the violence they face on an all too frequent basis. I start by paying tribute to my noble friend Lady Bertin and others across the House who have already made some tangible improvements to the Bill to ensure it does more to tackle violence against women and girls. Today, I hope we can provide a platform to underpin this work by recognising the cause of much of this violence: the hatred, abuse and entitlement, the misogyny—for that is what it is—that some hold in their hearts towards women. If we want to restore confidence for women that the police and the criminal justice system want to keep them safe from those who would do them harm, we need to start by naming it and then doing something about it.
In January 2021, UN Women UK showed in a poll of 1,000 UK women that although 80% of women of all ages said that they had experienced sexual harassment in public places, 96% of respondents did not report these incidents and 45% said that was because it would not change anything. Too often when it comes to violence against women, society demands the perfect victim before we act. We question women. We talk of self-defence lessons and, most recently, flagging down buses if they are worried. We ask, “What were you wearing? Had you been drinking? Where were you going?” We make the violence and abuse they experienced about them and whether they have provoked, or what they did to keep themselves safe.
Amendment 114F seeks to flip the script and ask what the police and the criminal justice system can do to catch those who put women at risk—to stop making women responsible and to hold those who commit these crimes accountable. It would do this by building on years of policing good practice. It is perverse that, despite 3 million crimes being committed against women in just three years, our legal and policing systems do not routinely recognise what we all know is blindingly obvious: the deep-rooted hostility towards women that motivates many of these crimes. As a society we have rightly taken steps to acknowledge the severity of racist or homophobic crimes, but have not yet acted on crimes driven by hatred of women.
Those who have listened to previous debates on this matter will know of the work started in Nottingham to address this issue, driven by the former police chief constable, Sue Fish, and rolled out to other police forces in England and Wales, including North Yorkshire, and Avon and Somerset. By recording when crimes are motivated by misogyny and training officers to recognise and record it, they have seen a substantial increase in the confidence of women to come forward and report crimes—not catcalling, although we know that shouting abuse in the street is a criminal offence, but rapes, sexual assault and harassment. This is the case not just in Nottingham. Women’s Aid reports that police forces that are now recording misogyny have not seen an influx in reporting of wolf-whistling, but instead receive a growing number of reports of serious crimes—a sign of the challenge we face and the value in recognising misogyny as a problem.
My amendment is in two parts. The first should be uncontroversial, as it simply seeks to guarantee what the Government have already promised: that all police forces will collect and report data on crimes motivated by hostility towards the sex or gender of the victim. This means that crimes motivated by misandry could also be recorded, but the evidence from those areas taking this approach is that between 80% and 90% of the victims are women.
The National Police Chiefs’ Council has, in its new violence against women and girls framework, recognised the need to target resources on high-risk spaces. It has also supported this approach and included sex or gender in hate crime reporting. It knows that data is a central part of the fight against any kind of crime. Without it, police forces are left stumbling in the dark with no way of knowing where or how to best deploy their resources to keep people safe. Noble Lords will remember that, during the passage of the Domestic Abuse Bill, the Minister promised that this would happen by autumn 2021, yet here we are in 2022, albeit in January, still waiting for it to happen. With a quarter of all forces already doing this, the three-quarters of women in England and Wales who live in the other areas have a right to expect better. Putting this in the Bill will ensure that we get it right.
The second part of the amendment would use this information in our criminal justice system by allowing courts to consider whether misogyny—or misandry for that matter—was an aggravating factor when an offence was committed. Hate crime legislation protects people targeted because of their identity. We use it to send a powerful message that attacking someone simply because you do not like the colour of their skin or their sexuality is not acceptable and to give higher sentences accordingly. Yet hate crime law recognises that someone can be a victim of more than one type of hate crime, except if the part of their identity being targeted is their being a woman. Muslim women may be victims of hate crime because they are Muslim and because they are women. Some 42% of black and ethnic minority women aged between 14 and 21 report experiencing unwanted attention at least once a month. Many women and girls with intellectual disabilities also experience abuse for the dual reasons of their disability and their sex or gender. Including sex or gender in the list of characteristics protected, as this amendment would do, would close that loophole and mean that victims of these crimes would not have to fit a tick box to be seen.
Finally, the amendment would also ensure that this approach does not lead to lower sentences for offences involving serious sexual violence or domestic abuse. Building on the work done by my noble friend Lady Bertin and the clear definitions provided of serious offences involving violence against women and girls in this legislation, Amendment 114F specifically disapplies the sentencing provisions from serious sexual and domestic offences. For the avoidance of doubt, that is not because these crimes cannot be motivated by misogyny. We carve out certain offences from other hate crime laws around religion and racial hatred to ensure that sentences are not inadvertently reduced; rather, they are enhanced when tariffs are applied in court.
This carve-out also answers the concern the Law Commission set out: that in recognising how misogyny drives crime in our criminal justice system, there is no hierarchy of offences. I know that some of my colleagues around the Chamber will want to ask why we are using the phrase “sex or gender”. This is because our focus is on the perpetrator, not the victim. Currently, the Crown Prosecution Service says that a hate crime is
“any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice”.
Perception matters in hate crimes. Whether someone is born a woman or becomes one, if they are targeted for being a woman, being able to record that motivation will help tackle the cause and find those responsible for the harm. Excluding some women from this could give perpetrators a free pass. It risks valuable information about offending patterns being missed, and potentially gives perpetrators a chance further to demean a victim by claiming that they cannot experience misogyny because they are trans.
For too long, violence against women and girls has been consigned to the “too difficult” box and gone unaddressed. The police have started to recognise that this must change, led by the formidable work of Maggie Blyth, Sue Fish and others across the country. Now we must do the same. This amendment is our chance to show the same intent to tackle violence against women and girls wherever it occurs, rather than to continue to defer action; to learn from what works; and to ensure that the law is on the side of women, rather than on that of those who seek to abuse and harass them. It is time for deeds, not words. I beg to move.
Amendment 114G (to Amendment 114F)
114G: After Clause 55, in subsection (3), leave out “or gender”
My Lords, my Amendment 114G amends my noble friend Lady Newlove’s amendment and removes “or gender” from subsection (3) of her proposed new clause. When my noble friend tabled a different misogyny amendment in Committee, she constructed it using the formula “sex or gender”, and I argued against that formulation.
My noble friend’s new clause is headed “Offences motivated by hostility towards the sex or gender of the victim”, but the text of the clause is puzzling. Subsection (1) defines “relevant crime”, for the purposes of the new clause, in terms of
“hostility or prejudice based on sex”—
not on sex or gender. Of course, because it is the perception, that would also cover the perception of trans people. Sex has a definition, which picks up on that of the Equality Act 2010. When we get to subsection (2), which is about the recording of relevant crimes, that, too, because it makes no reference to gender, would clearly apply only to relevant crimes expressed in terms of sex, as set out in subsection (1).
Those of us who received the briefing this afternoon from the honourable Stella Creasy MP will have noted that it claims that this amendment refers throughout to sex and gender, but it quite clearly does not. Subsection (1), which governs subsection (2), refers only to prejudice or hostility based on sex. The problem is when we get to subsection (3), which is where my amendment bites. It states:
“A court considering the seriousness of an offence arising from a relevant crime”—
remember that a relevant crime is expressed in terms of hostility or prejudice based on sex—
“must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor”.
I really do not understand how that is supposed to work, and I do not think that “or gender” can fit with the definition of “relevant crime”, as it has been defined wholly in relation to sex in subsection (1).
In addition, gender is not defined in the proposed new clause. Sex is defined, in subsection (1), although sex is actually a relatively easy concept, for which most of us could provide a ready definition, but gender is a much more difficult concept. My amendment would remove “or gender” from subsection (3) of the proposed new clause, to make all of it make sense and not have an extraneous “or gender”.
We do not have time today to debate how “gender” is creeping into our language in a way which undermines women and women’s rights. I believe that it would be a mistake to add gender to the hate crime framework. That is because transgender people are already covered by the transgender identity element of existing hate crime law, so the use of “sex or gender” must mean that gender has a wider meaning, but there is no recognised wider meaning for gender—nor, as I pointed out, is one provided in the new clause. Legislating for gender separately from transgender identity, which already exists in hate crime legislation, will open up a Pandora’s box of gender identity which will have repercussions for women. I believe that it is best avoided.
To that extent, I disagree with the Law Commission’s recent report on hate crime, which tends towards adding gender to sex. The Law Commission’s final report is much more nuanced than its earlier report, and I am sure that that is the result of its consultation, to which it had very many responses, but I believe that the Law Commission has still only scratched the surface of the issues that will come in general once we start inserting gender alongside sex in our laws, because of the vagueness of the concept and its capability of meaning so many different things, many of which will undermine the position of women in our protection frameworks.
I do, however, agree with the Law Commission that the case has not been made for extending hate crime law in this area. The Law Commission expressly recommended against the part of Amendment 114F which would make hostility or prejudice an aggravating factor in sentencing. The consultation responses to the Law Commission’s draft report did not support making these changes, even with—or, in some cases, especially because of—the domestic violence and sexual offences carve-outs, which, as my noble friend Lady Newlove explained, have been incorporated in her new clause by virtue of subsection (4). The carve-outs themselves were found, inter alia, to add complexity to how the law worked and to be tokenistic; many other reasons were given by the Law Commission.
The Law Commission would probably approve of the additional recording that is contained in Amendment 114F, because it found that the evidence base supporting a change in the law is currently very thin. In Committee, several noble Lords cited with approval the recording initiative of Nottinghamshire Police, and my noble friend Lady Newlove has referred to it again, but the Law Commission’s report is clear about what has come from that exercise so far and that it is of very low evidential value, for various reasons explained in its report. So we still have a largely evidence-free area in the context of trying to make significant new laws. I am not clear that subsection (2) adds anything to what the Government have already said that they are prepared to do in respect of requiring further reporting by police forces.
When we debated this in Committee, I argued that we should not legislate until we had received the Law Commission’s report, and that we should also allow the Government to respond to that report. Of course, we now have the Law Commission’s very substantial final report, and it clearly recommends that misogyny should not be added to the hate crime laws. It suggests some alternative ways of dealing with the underlying problem. I hope that any noble Lord thinking of voting for my noble friend’s amendment today has had a chance to have a look at the very significant analysis included in the Law Commission’s report on this subject.
We also ought to allow the Government time to respond to the report. It has been out for only five or six weeks, and we cannot realistically expect a response to a very significant report, running to 600 pages, so soon. I look forward to what the Minister has to say about timing when she responds this afternoon. It clearly is important to get the Government’s response, but I do believe that we should wait for it, especially in the context of the fact that the Law Commission has not recommended that we go down the route proposed in Amendment 114F.
Those who want to make misogyny a hate crime believe that the treatment of women in our society remains a big issue that needs to be dealt with—and so do I. I just do not believe that Amendment 114F is the right solution at the right time. If, however, Amendment 114F is pressed to a Division, I believe it should be amended by my Amendment 114G in order to make it make sense. I beg to move.
My Lords, I rise to support the original amendment, moved so ably by the noble Baroness, Lady Newlove, and to oppose the amendment to the amendment from the noble Baroness, Lady Noakes, which she moved just now. I hope she will forgive me for saying that her introduction of her amendment displayed a great deal of confusion, which is being much magnified in debate, about the differences, in so far as they exist, between the words “sex” and “gender”.
Gender is causing no confusion in the law, but I would urge the noble Baroness and others to take the trouble to have a look at the first legal textbook written on this subject, called A Practical Guide to Transsexual Law; it is authored by Robin White of Old Square Chambers in London, who is a trans woman herself and extremely expert in cases arising from trans issues, and her colleague in the same chambers, Nicola Newbegin. If noble Lords are suspicious about a lawyer in your Lordships’ number recommending the reading of a legal textbook, I reassure them that it is not because I want to make them go to sleep while doing their reading before they go to bed at night; it is actually one of the most fascinating textbooks written in recent years—and it has the virtue of being short as well.
The issues described in that book, which have interested me since I introduced the first transsexual rights Bill in the other place when I was a Member there, have evolved greatly over the years. I would say to those who are suspicious or uncomfortable about these issues that young people—people born after 1995, to date at random—they do not understand the problem. To them, trans people are included among their friends, and it is “just a thing, not an issue”, to quote one of my own daughters on the subject. It is becoming increasingly common for young people to move in circles where trans men and women, and, for that matter, gender diverse men and women, are absolutely standard parts of the community.
The Equality Act, which has been in existence for a considerable time, says that you must not be discriminated against because of your gender reassignment as a transsexual and that you may prefer the description “transgender person” or “trans male” or “female”. There is much more I could read out to your Lordships that illustrates that the law has been in place and has been well understood for a long time.
Let us just consider what the noble Baroness, Lady Newlove, is trying to achieve in subsection (3) of her proposed new clause. I need to confess a sort of interest at this point, in that I am married to a circuit judge who tries criminal cases only. So perhaps I have a little bit more evidence in my mind—she certainly does not agree with everything I say, by any means— on how judges behave not just from my own practice but from a lot of discussion about these issues. The amendment provides:
“A court considering the seriousness of an offence … must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor when determining a sentence.”
Can one seriously suggest that a circuit judge, or a magistrate for that matter, does not understand what that means? If the judge understands what that means, surely it is as just as any other aggravating factor.
Let us look at it down the other end of the telescope. Five or six young women go out for a night out, and during the course of that night out an offence takes place in which there is hostility or prejudice towards the one of them who is a trans woman. Would it really be right for the other five to have an aggravated sentence brought upon the offender, if the hostility was towards them as women on the grounds of sex, but not that trans woman, if the hostility was shown to them on the grounds of gender? It is a nonsensical suggestion, and what is in the noble Baroness’s proposed new subsection (3) is just common sense—the sort of common sense that judges apply in the courts every day. So I would urge your Lordships to take the view that the use of the phrase “sex or gender” in this amendment is just good 2022 common sense and, if one is minded to support the amendment, one should support it in its original form.
My Lords, I want to take a slightly different view of this. We support misogyny being treated as a hate crime and, personally, I do not understand the arguments of the Law Commission in relation to domestic violence and sexual offences. The same objections could be made to existing hate crimes such as homophobia, but they exist alongside these serious offences without difficulty. I wonder whether proposed new subsection (4) in the amendment is necessary.
May I suggest an alternative way out of the gender debate? I wonder whether, in line with the Law Commission’s report on hate crime in relation to other aspects of hate crime, the words in brackets—“or perceived sex”—should be added to the word “sex” at the end of new subsections (1)(a) and (1)(b) proposed by the amendment. I am thinking of the following hypothetical example. A man who shouts demeaning and derogatory terms for a woman, indicating a hatred of women, and who without provocation attacks a stranger in the street, indicating that the attack is motivated by a hatred of women, should be charged with the aggravated misogyny offence, whether the assailant is mistaken in identifying the victim as a woman or not. It should not matter whether the victim is a woman or not; it is the motivation of the attacker that is important. If that motivation is hatred of women, it should be an aggravating factor.
However, despite my concerns about the wording of the amendment, we have waited long enough for this important and necessary change in the law. Any defect in the wording of the amendment can be addressed in the other place, and if the noble Baroness divides the House, we will support her.
My Lords, I raised my opposition to a version of this amendment previously. For once, I was planning to keep out of the gender identity argument—although I agree with both the speech and the amendment from the noble Baroness, Lady Noakes—but I feel I must make some response to the noble Lord, Lord Carlile, who said that the concept of gender is causing no problems in the law or among judges. I am delighted about that, but let me tell you that the concept of gender is causing a huge number of problems for many women.
The judge advises that we need to talk to young people who include trans people among their friends. I point out that I have trans people among my friends and spend a huge amount of time talking to young people. There is not just one view on this; there are lots of views. One of the problems we have to recognise is that open debate about gender and trans issues is often chilled, for fear of accusations of hate or bigotry—and, ironically, most of the misogynistic abuse that I and other women have received in recent months and years has been on this issue of being gender-critical.
I will now go back to what I was going to say. My opposition to this amendment is based on a key concern: the need to avoid fuelling a narrative of fear that posits the idea that terrible and unimaginably horrific, but rare, instances of sexual violence and murder are part of a continuum of widespread misogynistic attitudes. This can too easily align everything from online trolling and catcalling to rape and domestic abuse under the label of misogyny—hatred of women.
There is limited time because we have very major things to discuss, so I will focus my remarks. I appreciate that the amendment from the noble Baroness, Lady Newlove, explicitly distinguishes between sexual violence crimes and other forms of crime that may be motivated by misogynistic intent, and that it is not an attempt to create any new criminal offences, being more concerned with the police recording and reporting of the number of crimes motivated by hostility towards sex and, sometimes, gender. This, we are told, is crucial to identifying patterns of behaviour and targeting police resources, so that we can build a national picture of violence against women and girls. However, hate crime legislation generally, as echoed in this amendment, in fact means that the data collected is based almost entirely on subjective perceptions and will not allow an accurate picture to emerge.
The amendment talks of a reported crime in which
“(a) the victim or any other person perceived the alleged offender, at the time of or immediately before or after the offence, to demonstrate hostility or prejudice based on sex, or (b) the victim or any other person perceived the crime to be motivated (wholly or partly) by hostility or prejudice towards persons who are of a particular sex”.
So this amendment would not help us understand data as fact but more how victims—or any other third parties—subjectively see either the motivation of the alleged offenders or the crime. To compound the issue, there is no legal or formal definition of “hostility”, so the CPS suggests that we use the everyday understanding of the word, which includes ill will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. This can lead only to the possibility of an ever- widening set of crimes being badged as misogynistic, with the only evidence being subjective.
The practical outcomes could be severe and serious, as the amendment would alter sentencing. This means, essentially, that, if someone thinks or feels that someone else is being hateful towards them, and the hostility in carrying out the crime is based on sex and explains their offence, that is enough for that person to be locked up in prison for longer. There is also a more insidious punishment: this amendment might mean that more and more behaviour—we know that we mean especially that of men and boys—is deemed to be misogynistic, destroying the reputation of those people once they are labelled as bigots who hate women, according to this categorisation, without necessarily being branded as such in reality.
According to the campaign literature sent out ahead of this discussion, this label of hostility via sex can be used to imply far more than hostility. However minor the original crime, if it is labelled as sex-based hostility we are told that it is an almost inevitable slippery slope and that this is the kind of person who will carry out, if they are not stopped, the most heinous crimes, such as rape, sexual violence and murder. Meanwhile, HOPE not Hate sent round a missive saying that this kind of sex-hostility is a slip road to far-right extremism.
Finally, the Fawcett Society claims that this amendment will give women protection from crime and help ensure the safety of women and girls. I say that it will not: if anything, it could distract the police from the practical, difficult but essential work of on-the-ground patrolling of streets, painstaking investigations, and so on, and the courage to see through those investigations and prosecutions. It might take valuable resources for the police away from policing if they are tangled up in the reporting and monitoring of staff and data which I do not think, as I have shown, is reliable. Consider one of the most gross examples of the abuse of women and girls: the grooming gangs that operated in parts of the north-west of England. Those women and girls would not have been helped one iota had those crimes been called misogynistic. The shameful neglect in the investigation and prosecution of that incident was surely not about whether it was seen as being driven by hostility to sex. This amendment avoids the real problem, is tokenistic and will not help women at all.
My Lords, I have put my name to this amendment and will speak very briefly, not least because I have the privilege of being one of the Deputy Speakers of this House. I would just remind noble Lords that we are at Report, and at Report we are not meant to give either Second Reading or Committee speeches—it is a discourtesy to the House to be discursive. That is all that needs to be said on that.
Some noble Lords may be familiar with a newspaper that is normally far too left-wing for me, the Daily Telegraph. There is an article in today’s paper by a gentleman called Charles Hymas, which says—and I have no reason to believe it is not true, since I understand that there are fairly close links between the aforementioned organ and the party in government—that there are quite a few quite senior Back-Benchers in another place who are very keen to use this amendment, assuming your Lordships pass it, to enable them to have a proper discussion in another place about this issue and to decide then, as our elected representatives, whether this case has sufficient merit to be put into law and in what manner and form that should happen. I suggest that they are rather better qualified to do that than we are.
Having said that, my Lords, I will support this amendment. I think we should send it back to another place for them to have another look. The other place is also a better place to have what can be an extremely contorted and overimaginative debate about gender and the relative merits of sex and gender.
As others have said, I am not sure that generationally we are the best-equipped assembly to opine on these subjects. That does not mean that we are not able to have a point of view, and I am aware that some noble Lords and noble Baronesses have a very strong point of view. I simply point out that, however strongly they may feel, there are a great many others of a younger generation, and down the other end, who feel differently. I support this amendment, because I think your Lordships should give the other place a chance to decide for itself.
My Lords, I hope the noble Lord does not think I am being discourteous to the House by making a short intervention in this important debate. We have to be very careful about legal definitions of sex and gender. Primarily, the definitions are not legal but are in fact biological, as I have said in this Chamber before. That is a problem. That is one of the reasons why I agree with what the noble Baroness, Lady Fox, just said. For example, we have to understand that there are situations in which there might well be problems with—whatever you call it—misogyny or hate. Take a transgender woman who was originally assigned as a male and still has the genes of a male, and possibly some of the hormonal function of a male, who competes in a sporting event. That is a difficult issue that has not yet been properly dealt with. Clearly, it is quite likely that from time to time those sorts of situations will cause considerable anger, hostility and all sorts of effects that might be an offence under the Bill. We at least need to record that and decide how we deal with it.
My Lords, I support the amendment, and I want to deal with one or two things that have come up in this discussion. The noble Baroness, Lady Noakes, suggested that the evidence base is very thin. The evidence base of women receiving threatening and abusive behaviour and sometimes assault, accompanied by expressions that make it very clear that it is directed at them as women, is substantial. I have just been receiving evidence for a working party in Scotland, and over this past year it has been shocking to see the extent to which this is a serious problem for girls and women. It should not be underestimated, and of course it is accelerated by social media, which is encouraging the kind of verbal assault that is so disgusting and disgraceful that it is hard to imagine women and girls having to deal with it in their daily lives. It really is endemic, so I do not think that what we are trying to do here can be minimised.
As for suggesting that we introduce a complicated debate about the comparatively very few women who are trans women and might be included in this, that seems just extraordinary to me. It is a diversion from the fact that women, who make up more than 50% of the population and are not a minority, are experiencing this on a daily basis. Let us get real about it.
The noble Baroness, Lady Newlove, has pointedly made something part of her amendment. She says that the focus of this is on the perpetrator. How does it come about that an aggravation is used? It is because there is evidence, in addition to the evidence of a regular crime, that it has been motivated by antagonism and hatred towards women.
Of course, misogyny is wider than simple, old-fashioned hating. It is about a sense of entitlement, usually by young men, towards women and their bodies. The ways in which women have to experience verbal nastiness of a high level undermine their self-confidence and self-expression, so this is really damaging in our society. The noble Baroness, Lady Fox, says it is a nonsense to suggest that this leads on to more grievous crime. I am afraid that it is not a nonsense, because we know that it normalises certain kinds of behaviours that then go undetected by the police.
I really want us to think seriously about how we stop this happening. When women say this has to stop, what is the answer? A misogynistic aggravation is not the answer; it will not solve all the problems, but it is a starting point to let women know that misogyny is taken seriously by the legislature. That is why I support this amendment to the Bill.
I did the first international case, with the noble Lord, Lord Pannick, on transgender/transsexual persons wanting to be treated equally, so I know the suffering there is for trans people. But I also know that a trans woman going about her business in the example given can experience exactly the same kind of abuse and threatening and abusive behaviour as any woman who was born a woman. That distinction is really not worth our diverting our attention from the generality that something pernicious happens towards women in our society and undermines equality and the gaining of equality that we are all struggling towards.
My Lords, acutely aware of the time, I will be extremely brief. It is a great pleasure to follow the noble Baroness, Lady Kennedy of The Shaws, and to agree with everything she just said.
I pick up a really important point from the noble Lord, Lord Russell of Liverpool. So many people have been campaigning on this issue for so long, with the noble Baroness, Lady Newlove, being such a powerful champion, and many other Members of your Lordships’ House as well. But I think we are looking tonight at two different kinds of amendments and two different structural issues. It is really important that we make it clear to those outside this Chamber that, as the noble Lord, Lord Russell, said, if we support Amendment 114F —I strongly support it—that will create the chance to have a debate in the other place. I want to make it clear to people that this is different from other amendments that will be considered later this evening.
My simple message to campaigners is that if Amendment 114F passes, as I hope it will, this is an opportunity for you to really make your voice heard in the other place. Write to your MP; make this a place where this debate is finally settled. I made a contribution in Committee, and back in March I made a contribution on the same issue on the then Domestic Abuse Bill. We really need to make progress, and this is an opportunity for this House and for people out there to get into this debate.
My Lords, I will be very brief, since I supported an amendment in November attempting to achieve a similar outcome. I commend the noble Baroness, Lady Newlove, on her tenacity in pursuing this issue. This amendment simply builds on best practice already established in policing, where forces need to recognise the causes of violence against women. It attempts to fill a gap in our hate crime legislation, where sex and gender are the only protected characteristics not recognised, and to send a clear message that women’s safety matters. I simply reinforce those points and all those that the noble Baroness, Lady Newlove, made. I support her amendment.
I was not going to intervene in this debate, but I will do so briefly. First, I will not stand behind anyone else in a queue of people showing respect and admiration to my noble friend Lady Newlove, so it pains me when I find myself on the opposite side of an argument to her. That said, I agree with so much that she said in the way she described the crimes and assaults that many women experience. I also agree with a lot of what the noble Baroness, Lady Kennedy, said.
I do not want to get involved in any kind of discussion about the difference between sex and gender. The point that I want to put on the record, not least because of what the noble Lord, Lord Russell of Liverpool, said, is that there is not a consensus among women that misogyny should be introduced as a hate crime. I would be very concerned if that were to happen, not because I am in any way not concerned about the violence, the hatred and some of the discrimination that women face but because I do not want us to cultivate a society in which women are universally seen as victims and all men as aggressors. That is a risk and a potential consequence of us pursuing this course. I put that on record and look forward to the way in which my noble friend the Minister responds to this debate.
My Lords, I too shall make a very brief intervention, in agreement with my noble friend Lady Stowell. I have some concerns that this is not the way to solve the problem of violence against women. I absolutely accept that misogyny does exist, I think women have good cause to be aggrieved about the increasing challenges we all face and the idea of misogyny as a hate crime certainly sounds attractive, but at a time when I have never known women angrier and more afraid, I think we have to ask whether this is really the right legislation to deal with our grievances. From my experience, women want better conviction rates for rape, better protection against domestic abuse and violence, and to be able to go for runs outside without fear of attack or even murder. With an average of two women murdered every week, that is what they want the police to focus on.
The Law Commission report says
“while we consider that there is a serious problem of crime that is connected to misogyny”—
I accept that too—
“we have concluded that the particular model of hate crime laws is unlikely to prove an effective response to misogynistic offending, and may prove more harmful than helpful, both to victims of violence against women and girls, and also to efforts to tackle hate crime more broadly. We suggest that reforms in other areas are more likely to result in tangible positive results.”
I agree, and I think there is a danger: we need to be careful what we wish for. There is every possibility that this kind of crime will get bogged down by bureaucracy and endless debate, none of which will improve the lives of women at all. The law of intended consequences may well be part of this. I just say to the noble Lord, Lord Carlile, that surely the example he gave is not correct, because transgender identity is already a protected characteristic. I was confused by that.
My Lords, I will not take up too much of the House’s time. I am a Covid baby—I have learned the culture of this House via screens—so I hope your Lordships will forgive me if I get the protocol incorrect, but I consider you all my noble friends. I am really struck by the amendment of the noble Baroness, Lady Newlove, and support it wholeheartedly because I have seen the benefit of hate crime legislation and the benefit of aggravated offences on the grounds of sexuality, disability and race. It is illogical to me that that is not extended to women when it exists for every other protected characteristic.
On a personal note, this issue of sex and gender is something that I have been researching for a very long time. I am the former CEO of Stonewall—since 2019 I have been free—but I have been thinking about these issues since 1998, when, as a student at St Hilda’s College, Oxford, we were debating whether transwomen should be allowed in that women-only college. So, I am slightly a 1980s baby, but have thought about these issues for a very long time.
I am often thought to be trans. I am not, but I am often thought to be. I do not have my tie on this evening because it is going to be a long night—and if, unlike the gentlemen, I have the option to drop it, I will—but when a woman has been told for most of her adult life to accessorise, she does get attracted to the tie racks in Liberty as an option for those accessories. I experience discrimination on the grounds of my gender, sometimes on the basis of my sex—because I am a woman and perceived to be a woman—but often on the grounds of my gender, my gender identity and my gender presentation. These things are complicated; they do not lend themselves to pithy statements.
I have huge sympathy with those who have very different views from mine on trans issues and I think there is probably more that we can talk about together than what divides us. We have become caricatures of ourselves by the medium of social media and I have a huge amount of respect for the noble Baroness, Lady Jenkin, and the work she has done around women in politics, but I know we disagree on this. I hope we can find ways to come together, but I think this amendment referring to sex and gender is wholly beneficial to women. I hope to support it, hope to see it taken back to the other place, and I thank the noble Lord, Lord Russell, for his support.
My Lords, we strongly support the amendment in the names of the noble Baroness, Lady Newlove, the noble Lord, Lord Russell of Liverpool, and my noble friend Lord Ponsonby of Shulbrede. We strongly support the amendment because, as my noble friend Lady Kennedy pointed out, misogyny sits behind much harassment and intimidating behaviour that, unfortunately, many women experience as a reality every day in our communities. It fuels behaviour that, far too often, escalates into serious offences. We have to repeat, again and again, that violence against women and girls does not occur in a vacuum.
I agree very much with what the noble Baroness, Lady Warwick, was alluding to and am proud of my own local police in Nottinghamshire, who have been leaders in this area, as the noble Baroness, Lady Newlove, pointed out. It was the first force, in 2016, to record misogyny as a hate crime. I can tell the Chamber that it made a very real difference in Nottinghamshire when the chief constable, Sue Fish, stood up and said she was going to make it a priority for her officers. It spoke to her officers in terms of how they dealt with it, but it also spoke to the women and girls, and indeed the men of Nottinghamshire, about the priority that was going to be given. It made a very real difference and continues to do so. Sue Fish should be congratulated on being the leader that she was and is.
This campaign to recognise misogyny as an aggravating factor in the same way that we recognise hostility against a person due to disability, race or other characteristics has been running for years. Now is the time for all of us to show some leadership, to close the gap in our law and to state clearly that we do not accept the status quo and that things must change. There is much support for this change and the Government should take this opportunity, an opportunity that exists for us now and that we should take.
My Lords, I was quite pleased to hear noble Lords saying that your Lordships’ House should curtail debate this evening: I have never experienced it in all my time as a Minister.
I start by thanking my noble friend Lady Newlove and the noble Lords, Lord Russell of Liverpool and Lord Ponsonby, for this amendment. It speaks to their continued commitment to tackling violence against women and girls and I know they have campaigned tirelessly on this issue. Given their sincerity and their deep and obvious desire to do what is best in this sphere, I am saddened that I am not going to give them much comfort on this amendment, and I shall explain why.
As noble Lords may be aware, last month the Law Commission published its final report, Hate Crime Laws. It is a weighty tome—some 545 pages—and, as always with the Law Commission, it is a thoughtful and well-argued document that warrants very close reading. On behalf of the Government, I thank the Law Commission for the thorough and intelligent way in which it approached the task that it was given. I assure noble Lords that the Government will give all the recommendations, of which there are 34, very detailed consideration. As is customary, a full government response will be published in due course; it will address each of the recommendations and I do not want to pre-empt that process.
However, ahead of that I should just draw noble Lords’ attention to what the Law Commission said on the specific issue which Amendment 114F addresses; namely, adding sex and gender to hate crime laws or, in common parlance, “making misogyny a hate crime”. In its report, the Law Commission was unequivocal that the course of action represented by this amendment would not be appropriate, as it would potentially prove detrimental to women and girls. Indeed, it noted that to add these characteristics to the hate crime legislative framework
“may prove more harmful than helpful”
and would be
“the wrong solution to a very real problem.”
I add that transgender identity is already covered in hate crime laws.
In coming to the conclusion it did, the Law Commission applied its usual rigour, dedicating almost three years of thought and careful deliberation to its work. It did so by examining, in exhaustive fashion, whether any legal models would be appropriate to making misogyny a hate crime. It did so on the premise that
“violence against women and girls is extremely prevalent and harmful”,
as noble Lords have said—eliminating all doubt, if there was any, that it did not in good faith stretch every sinew to find an appropriate solution through the hate crime framework. Finally, it did so while listening to and acknowledging the voices of many practitioners who are dedicated to tackling violence against women and girls before making its recommendations, independent of government or political considerations. In this regard, there are few greater examples of what might be called evidence-based policy-making.
Turning now to the report itself, it noted that the majority of consultation respondents opposed adding the characteristics of sex and gender to these laws. A majority of specialist organisations which responded to the consultation were also opposed in one way or another. It noted, for example, that the largest sexual violence support organisation in England and Wales, Rape Crisis, rejected proposals to recognise sex and gender in any format within hate crime laws. Other women’s advocacy organisations made support conditional on certain models being pushed that meant, as the commission puts it—and I think this goes to the heart of the matter—
“Even amongst those who supported hate crime recognition in this area, there was very little consensus as to what form it should take.”
My noble friend Lady Stowell of Beeston echoed that point.
I sense from our own previous debates on this matter that consensus on the seriousness of the problem obscures the huge complexity over its solutions, and this debate demonstrates that. On terminology alone, a majority of the Law Commission’s consultation respondents opposed the inclusion of both sex and gender. Others stated they would prefer excluding such characteristics altogether unless they focused solely on women. It is clear that there is little agreement on how to implement change here in a manner that is widely accepted and fair. Amendment 114G, in the name of my noble friend Lady Noakes, serves only to illustrate all too well the lack of agreement on this question.
Understandably, this House ought to make the distinction between what might be popular and what might be necessary. However, the principal problem the commission found is that each possible option for adding sex and gender to hate crime presented unacceptable trade-offs. That is why there is so little agreement on the specifics, even among advocates. One key stakeholder concern was the finding that simply adding these characteristics in the same manner as those already represented would make it harder to prosecute crimes that disproportionately affect women and girls, like rape and domestic abuse. I do not need to explain to noble Lords why that is an intolerable unintended consequence.
I mentioned that the Law Commission was thorough. Inevitably, then, it turned its attention to legal models which might exclude some types of crimes and include others only where misogynistic hostility might be more apparent or did not include the same risks to prosecutions—public harassment, for example. This created a not unsubstantial problem that one of the central drivers of the review was to create parity across groups protected by hate crime laws. Creating a system where some crimes were excluded only as they concerned sex or gender runs directly contrary to this. None the less, the commission explored the possibilities.
This brings me to what I suspect Amendment 114F seeks to get at. It too applies the recognition of these characteristics only to certain offences. The Law Commission’s assessment of a number of models—akin to what is tabled here—similarly found them to be unsuitable. Specifically, it notes that recognising sex or gender only as it concerns certain offences gives rise to at least four problems. First, it would risk suggesting the excluded offences, such as domestic abuse, are by default not misogynistic or are somehow less important. Secondly, it is tokenistic to apply hate crime laws only to certain offences and especially where to do so would exclude the vast majority of most harmful crimes impacting women and girls. Thirdly, it would make the law more complex when a central aim of the review was to simplify it. Fourthly, it would treat sex and gender differently to the other protected groups in hate crime laws and therefore simply repeat the same principal problems of inequality that prompted the review in the first place.
I also want to address the elements of this amendment that concentrate on regulations for the collection of police data on such crimes. I can confirm that such provisions are unnecessary. There is already the capability for the Home Office to ask forces to collect data, subject to a dialogue with them about the feasibility of its collection. It is noteworthy, however, that the received wisdom about the success of pilots by forces to collect this data on their own initiative was not backed by the Law Commission’s review. Nottinghamshire, which the noble Lord, Lord Coaker, mentioned, had not been associated with increased reporting of hate crimes, and that is disappointing.
I know we all share a commitment to tackling violence and abuse against women and girls. That is not in question here tonight. The proposal to make misogyny a hate crime is a well-intentioned expression of this aim. But, in the face of a clear and objective analysis of the issue by a panel of experts, which has unequivocally recommended against a change in the law of this kind, and ahead of the wider government response to the detailed report, I cannot advise your Lordships to accept this amendment. Instead, I ask my noble friend to withdraw it.
I believe I should deal with my amendment to my noble friend’s amendment before she gets into winding up. Much as I would love to wind up the whole debate, I will confine my remarks to my amendment, which simply sought to remove “or gender”. I think that is the smaller issue that we are dealing with today. The bigger issue is whether this is an appropriate addition to our hate crime framework in law. I will leave my noble friend to wind up on that, and I beg leave to withdraw my amendment.
Amendment 114G (to Amendment 114F) withdrawn.
My Lords, I will get it right this time—I have only been here 12 years.
I thank everybody who has participated in this amendment. I just want to say that this amendment has no bearing on the definitions of sex and gender. It creates no new criminal offences at all. As with religion, which is certainly not biological, targeted hostility would aggravate an existing and proven offence and with the courts deciding that aggravation has been proven as a fact, the courts are capable of dealing with it. I thank the Minister but, unfortunately, I still wish to test the opinion of the House.
Clause 56: Imposing conditions on public processions
115: Clause 56, page 48, line 29, leave out subsections (2) and (3)
My Lords, I move this amendment on behalf of my noble friend Lord Rosser; it is also in the names of my noble friend Lord Dubs and the noble Viscount, Lord Colville of Culross. I will be reasonably brief on this group of amendments, because, unlike the ones we are to reach later today, we have had prior debates on, and scrutiny of, some of these provisions.
The group covers the existing protest provisions in the Bill, but this amendment focuses on one particular priority issue, namely, the imposition on public processions conditions related to noise. Indeed, the clause targets protests for being too noisy. It provides a trigger for imposing conditions on public assemblies, public processions and one-person protests if a protest is too noisy. Many noble Lords in this Chamber will know that many people would have fallen foul of the conditions in this proposed new legislation had it indeed been the law at the time. I certainly have been on numerous demonstrations, as have many noble Lords behind me —and, I am sure, some in front of me—
Whatever: they will have been on various demonstrations. Whether they were on behalf of the Countryside Alliance or not, the principle would have been the same and noise would have been a part of them. Has democracy collapsed in the face of noisy protests over the last couple of centuries? It has not. At some of the protests that I have been on—and, I am sure, at those that many noble Lords have been on—the noise has been phenomenal. It has been part of the object of them. Never have any Government of any colour sought to ban protests on the basis of noise or to put conditions on the basis of noise.
Protests are noisy—whether it is local families protesting the closure of a leisure centre or a march in front of this Parliament, protests make noise. The more well attended a protest is, the more popular support an issue has, in general, the noisier it will be. These clauses do not restrict protests for being violent or out of control or for causing damage; these are peaceful protests, but they can be restricted because somebody, in someone’s mind, is too noisy. The clause provides that a protest can trigger these conditions if the noise generated might cause
“serious unease, alarm or distress”.
It is an exceptionally low and vague threshold, as many noble Lords pointed out in Committee.
The Government have sought to do something about that. They have recognised it and thought, “This is a bit of a problem; they are quite right about some of the vagueness of this and about some of the definitions”, so the Government have brought forward a series of amendments, which are in this group. Without reading this to noble Lords—because they can read it for themselves—we can look at proposed new subsection (2ZC) in government Amendment 116, I will just leave this open and hanging in the air. If that clarifies what “noisy” means in the context of a protest, when it talks about people connected to organisations in the vicinity,
“not being reasonably able, for a prolonged period of time, to carry on”
their activities, the courts are going to have a field day. That is the clarification; that is the way in which the Government seek to do something about it. Even the Government recognise that vagueness is a problem. They are trying to do something about vagueness with a clarification that is equally vague, but which allows them to say that they have tried to address the problems raised in Committee.
Of course, the Government always have to balance protests with the rights of people to go about their lawful business. Balance is always important, but the right to protest in this country has never, ever had to have a condition placed upon it that is about noise. It never has. The noise generated at protests that I have been on has been immense, but never have the Government turned round or panicked and said that they needed to impose conditions on that in some way in order to do something about the protests. These are very serious amendments that we have put forward. These are very serious debates that will take place from now on, on the existing clauses and then on the new clauses. They involve the fundamental right of people to protest. Making noise is a fundamental part of the freedom to protest properly in a democracy.
My Lords, I also put my name to Amendments 115 and 123, because I am still concerned about the Minister’s assurance in Committee on Clauses 56 and 57 that the threshold for the police to impose these conditions on noise would be very high. However, the threshold in Clause 56(3) that the noise caused by protesters could cause reasonably firm people to suffer serious unease seems subjective, and a low threshold. I fear that it will put the police in an invidious position.
I refer the House to the JCHR report recommendations on these clauses. It says:
“Using multiple terms that are open to wide interpretation, such as ‘intensity’ and ‘serious unease’, leaves an excessive degree of judgment in the hands of a police officer … It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.”
I urge your Lordships to support Amendments 115 and 123.
My Lords, I rise to support the Government on this matter. It rather caught me by surprise that I was going to but, having studied the amendments with some care, I am on their side. As regards Amendment 116, these provisions are a serious improvement on what went before. I am bound to say that I was very uneasy with what went before but Amendment 116 addresses some of the concerns. I have two drafting points to make, which could be addressed in the House of Commons if the Government were so minded.
First, I absolutely agree with those who worry about the word “significant”. “Significant” is pretty trivial; it is not “substantial” or “serious” and, speaking for myself, I rather hope that the Government substitute “substantial” or “serious” when the Bill gets to the House of Commons.
My second point concerns proposed new subsection (2ZC). Here, I do not think that the Government have gone far enough, because what is being contemplated in that provision as it stands—I am sorry, I simply do not agree with the noble Lord who spoke from the Opposition Benches on this—is a total inability to carry on the work in the vicinity of the noise. But we should also address circumstances where there is a considerable inconvenience to ordinary citizens, which takes me to my fundamental point: of course demonstrators have the right to demonstrate, but ordinary citizens also have rights to go about their ordinary business, to work, to enjoy reasonable tranquillity and to expect others to respect that. It seems that the law has gone too far in favour of a demonstration, and that is very unfortunate. On the whole, I therefore support the Government in this matter.
It is true that if I was drafting this thing, I would have done it slightly differently. I agree with the noble Lord, Lord Coaker, about unease. What does unease mean? The noble Viscount, Lord Colville, makes the same point and I agree. I also agree on the concept of not being able to carry on proper business. That is slightly doubtful to my way of thinking as well. However, on the whole, although I came initially to think these things had gone too far, I now think that the Government are broadly speaking right in trying to bring about a better balance between the rights of demonstrators and ordinary citizens.
Could I just mention to the noble Viscount, Lord Hailsham, that these are ordinary people who protest? These are people who quite often just do not agree with the Government. I support a lot of protests that happen at the moment; there are sometimes protests that I do not support, but I support those people’s right to protest. On noise, I agree completely with the noble Lord, Lord Coaker. How do the Government seriously think that protest is going to happen without noise? That is a fundamental part of it, whether it is drums, chanting or singing, or just talking through a megaphone. These provisions really are so oppressive. I have attached my name to Amendments 122, 133 and 147. These clauses should be deleted from the Bill. They are repressive and plain nasty, and they really have to go.
My Lords, I have added my name to the amendments in this group standing in the name of the noble Lord, Lord Paddick, particularly those related to striking out Clauses 56, 57, 58 and 62. Briefly, in my view the Bill represents the biggest threat to the right to dissent and non-violent protest in my lifetime. It is deeply reactionary. It is an authoritarian attack on the fundamental liberties of our citizens.
If enacted in past generations, it would have throttled the suffragettes and blocked their ability to rattle Parliament’s cage to secure votes for women. It would have prevented antifascists stopping Mosley’s bullying, anti-Semitic blackshirts at Cable Street in the East End of London in 1936. It would have thwarted anti-apartheid protests that I led, in 1969 and 1970, which successfully stopped all white South African sports tours—a success which Nelson Mandela, then on Robben Island, hailed as a vital stepping stone in the ultimate defeat of apartheid. It would have prevented the Anti-Nazi League protests that stopped a resurgent and anti-Semitic, Islamophobic and fascist National Front in its tracks between 1977 and 1980, and in the early 1990s, similarly, the BNP. If Boris Johnson and Priti Patel want to be on the wrong side of history, the Bill is certainly the way to do it. I hope that this House will resist them.
My Lords, if one is going to make a change of this kind, which, as the noble Lord, Lord Coaker, says, has not happened before, one has to have a very good reason for it. The Government have produced no good reason for it. What they have said is that there are many protests which are very difficult and awkward. There are protests which have embarrassed me considerably as chairman of the Climate Change Committee, because I have had to explain that they are right about what they are protesting against but should not be doing it in the way they are, so I think it reasonable for me to say that these amendments go far too far. We are a democratic society and if I cannot go outside here and make a noise to point out that I think a whole range of things that the Government —or any Government—are doing are unacceptable, then my human rights are very seriously impugned.
When I came into this House, I said that there were three things I wanted to talk about: the environment, Europe and human rights. I want to be able to go on protesting about the ludicrous policies on Europe. I want to go on protesting about some of the things which have not been done, and ought to be done, about the environment. I want to congratulate the Government on many of the things they have done on the environment and climate change, but I need also to have the opportunity of making it clear when one believes that what they have done is wrong. Dissent and protest are essential parts of democracy. These provisions go too far.
My Lords, I have a number of problems with this part of the Bill that are to do with form and content. The fact that these amendments were brought in at the stage they were seems an abuse of parliamentary scrutiny. Some of the debates we are having could have been sorted out had they been addressed in the normal way. That fits into a pattern of intimations about breaking the rule of law and the authoritarian complexion of the way in which some things are being done in, through or around Parliament. That is my problem with form.
On content, it seems that we would have to remove the statues of Gandhi and Mandela from Parliament Square were these provisions to go through. You cannot laud people later as being great and prophetic actors by exercising the right to dissent, at the same time as clamping down on that in the building over the road. We have heard a lot in recent debates about freedom, particularly in relation to Covid, freedom passes and things like that, but we cannot just pick and choose which freedoms are convenient to us in a democracy.
I say to the noble Lord, Lord Hain, that the dry run for Cable Street was actually the week before, in Holbeck Moor in Leeds. It would have been ruled out as well. There is a significant point to make about the word “significant”, which was mentioned earlier. How is it that in legislation we are able to use words that are so incapable of definition? If something is significant, it is “significant of” something. It is not just significant; that is meaningless as a definition. That is like when people write that something is incredible, which, if it was, would have no credibility; they actually mean the opposite. You can get away with it in ordinary parlance but not in legislation.
My Lords, I am fully in support of the amendment, of course, to which I have put my name. I have served on the Joint Committee on Human Rights, and we have condemned this provision and said that it should not be part of the Bill because it is a breach of fundamental human rights. I have been on quite a lot of demos, and I would probably run foul of this legislation if it went through unamended. I cannot think of any demo that I have been on where we did not try to make noise, because that is part of what being on a demo means. I wonder whether the people who drafted the wording have ever been on a demo themselves—I do not believe it. Those of us who have been on demos know that the noise is encouraging; it tells spectators, who often join in support anyway, what we are about and what we seek to do. This is an absurd idea.
I think of the span of history—my noble friend Lord Hain contributed to this discussion—and there are so many important changes that started with noisy demos. How did some of those changes happen? Without noisy demos, a lot of changes do not happen. One looks at the suffragettes and all sorts of important demos; this is the nature of our democracy, and this Government are trying to trample all over it.
My Lords, I support very much what the noble Lord, Lord Coaker, said on this provision. There are a lot of good things in the Bill, but this is certainly not one of them. People watching this—the public—will think that somehow the Government have lost common sense. The idea that anyone can go on a demonstration and not make noise shows such a lack of common sense that I really do not understand how anyone could possibly have put this forward.
The noble Lord, Lord Hain, mentioned all sorts of demonstrations and historical events that have been helped by noise. Every Saturday, the Zimbabwean diaspora turn up outside the Zimbabwean embassy, sing very loudly and play their drums and music in a loud way. Who is going to decide whether that is bringing unease to people? It certainly brings unease to Mnangagwa in Zimbabwe, I hope. This is something on which I am sure the Minister is sitting there and thinking, “Why on earth are we doing this?” I hope that, even at this stage, the Government will not press these ridiculous amendments.
My Lords, I wish to associate myself strongly with the splendid speech made by my noble friend Lord Deben, who was absolutely right. I hope that I would have been one of those protesting at the time of the Great Reform Bill—I do not know, but I hope that I would have been—but I was in those great crowds from the Countryside Alliance, and I took part in those peaceful demonstrations. Like my noble friend, I have found some of the demonstrations of recent years wholly unacceptable, because they really have interfered with ordinary, decent people going about their business. Sticking yourself to the roof of a train or a road seems something that we should deal with—but not noise.
The noble Baroness, Lady Hoey, was right when she talked about Zimbabwe. Do we wish to see regimes like that continue to repress their people? Is not it right that those living in this country should have a right to make life a little uncomfortable for those who live in the Zimbabwean high commission? It is just silly to put this in. A Bill that is injected with a dose of stupidity is not a very good Bill.
There is so much that I support in the Bill, but the Government have got it wrong here—this is not sensible, and nor is it practical. Are they really going to try to ensure that every demonstration not composed of deaf mutes has everybody arrested? Really, how stupid can you get? I beg of my noble friend who will reply to this debate to take this one away. There are many good things in the Bill, but this is not one of them.
The city of Bristol is a city of activists and protesters, and it has been so for a very long time, particularly at the time of the Great Reform Bill. Many protests nowadays focus on College Green, in the shadow of the cathedral; as a result, I am well aware of the passion and commitment of Bristol activists, and the very real hurt and trauma when protests are mishandled.
Often protests can be annoying, and often they are disruptive—but that is the point. Public spaces, like College Green in Bristol and Parliament Square, are places which are felt to belong to the public, and which have been places where decision-makers like us are confronted by people’s concerns.
The Church often preaches good disagreement, not least because the alternative in our own history has often had rather dire consequences. We can sometimes be guilty of thinking this is just code for respectful, quiet debate in decision chambers. But good disagreement also rests on truly listening and being confronted with truth and with pain. Such things are not always quiet, or orderly.
There is a noble history and tradition of highly disruptive and even angry demonstrations and protest within the Church. The biblical model of the prophet, rising up to rebuke, denounce and criticise was rarely quiet, and rarely popular with those in power. Christian and Jewish tradition show that being a prophet is a dangerous profession. The powerful do not protest on the streets; the powerful have no need to, since they control the levers of change in society. It is those on the outside, who have no other ability to be heard or to create the change they need, who resort to protest. In the common life of a city like Bristol, and of the nation more widely, the right to protest is essential in communicating the concerns of those who feel unheard.
Democracy is not just the ballot box; it is also about making space so that the marginalised, the minorities and the vulnerable are heard. Protests and processions are necessary, an essential aspect to democracy. I am unconvinced that the Government have made a strong enough case that the existing powers of the police are insufficient in limiting legitimate protests. I shall listen with interest to the Minister’s response, but I am minded to support several of the amendments tabled here by noble Lords.
Let us be honest here about some of the underlying drivers of the Government’s policy. People in this country generally did not like the fact that Insulate Britain was obstructing ambulances on major roads, or that Extinction Rebellion was in one case—which affected me directly—stopping people from getting on the Tube. As the noble Lord, Lord Deben, remarked, in both those cases, the protesters were pretty self-defeating. There is one part of the Government’s provisions that we will debate later that deals with major infrastructure, which I think would deal with both those issues.
The noble Viscount, Lord Hailsham, I think suggested that he feels there is a bit too much protest in this country, but he rightly drew attention to the word “unease”, and the difficulty of defining it. It is just as difficult to define the word “inconvenience” or the word “noise”, and several of the other words still present in the Bill. That is why we absolutely cannot support it, because it is completely wrong to put forward powers of this magnitude with language that is fundamentally not just unclear but not possible to resolve—as the government amendments show that it is not possible to resolve.
My Lords, I fear that I am not going to make myself hugely popular by putting a note of dissent into this debate. I know that, given what has been said, noble Lords will do me the courtesy of listening for a moment or two.
Many good arguments have been made in the course of this debate and previously against some provisions in the Bill. Where I think that this House can do itself a disservice is in invoking the legacy of the suffragettes, Nelson Mandela and pro-democracy campaigners in repressive regimes. Is there not a fundamental difference between our liberal democracy—there have been some heinous attacks on individuals and institutions, and we speak of its strength when it is attacked—and those protestors who felt that they had to take disruptive means because they did not have the agency that we have the privilege to be able to have in this country: the right to decide our fate in the ballot and through peaceful process?
I am going to listen carefully to what the Minister says. Certainly, if the characterisation of these measures that have been put forward just now, and in previous iterations of this debate, were true, in that it is effectively sweeping away the right to peaceful protest and to make your voice heard through demonstrating, as a child of protesters myself and someone who has been on many protests—as have many noble Lords in this Chamber—I would, of course, oppose it too. But I have not yet heard a sufficient case that the measures that have been put forward would do that level of damage to the right to protest; rather, they are designed to protect the primacy of our democracy. We can agree or disagree that some of them go too far, but I have real problems with the way much of this has been framed through the discussion of the Bill.
My Lords, it is a great privilege to follow the noble Lord, Lord Walney. Noble Lords will recall—if they were present in Committee—that, in supporting the Bill, I did none the less raise some mild questions about noise. It is a shame the noble Lord, Lord Hogan-Howe, is not here, because I thought he was very compelling in the arguments he made, as a former police chief, as to why these measures around noise were manageable and relevant.
I will listen very closely to what my noble friend the Minister says on this, but I feel pleased that the Government have come forward with the clarifications that they have. I would add—to build on what the noble Lord, Lord Walney, said—that when I think about the Bill and the reason why I support the measures within it in principle, I start from the summer of 2019. I did mention this before, at an earlier stage of the passage of this Bill. This was a point at which there were new forms of protest and demonstration through the summer, and a lot of people who, unlike noble Lords, do not go on protests, were rather concerned about the way that things such as blocking Waterloo Bridge and bringing Oxford Circus to a complete standstill—and this went on for days—were supported by Members of Parliament and very senior high-profile people.
That kind of behaviour was so alien to the way in which people in this country normally protest. It was very alarming to people and we have to remember that we cannot argue in favour of that aspect of our democracy in terms of protest, without also reminding ourselves that some people who were alarmed at the support for that kind of behaviour also looked at Parliament in real concern when we did not respect democracy in the years before that in the way that we ignored the change that some people wanted to make by using the ballot box. I do think we have to see this in the bigger picture.
My Lords, we are at Report stage—although it would be very easy to misrecognise it as Second Reading. I have been supporting the Government this afternoon—but not at this stage and probably not for most of the rest of the debate.
The fact is that this amendment—and most that follow—to my mind, we must support. I entirely accept that it is nonsensical to suggest that by Clause 56, and most of those that follow, the Government is intent on repression. They are not trying consciously to suppress our hallowed rights of protest, of demonstration and of assembly. That is not the position. But I suggest strongly that that is the public perception—that is what the public believe—and understandably so, because it is such an overreaction to anything that has happened.
I too excoriate Insulate Britain: they behaved outrageously and undemocratically, so flatly contrary to the rule of law and wider interests, that we must amend to ensure that they are arrestable and imprisonable without going through the process of contempt of court proceedings in future. But these provisions, as the noble Lord, Lord Cormack, said, simply lack all common sense, they lack all balance and measure, and they are counterproductive.
The noble Baroness behind me suggested that we all, and the wider public, protest things such as stopping the Tube trains, but I would remind your Lordships—I think I have just read—that those who committed that apparent offence were resoundingly acquitted. The fact is that if we pass laws such as this law, that is going to be the reaction: the Government are going to be regarded as tyrants and the public will not play.
My Lords, I tried to say that I think we do not want to muddle up too many things. The Bill might have been brought forward in order to deal with the popular revulsion at things such as the M25 sit-ins or getting on top of the Tube, and we have heard that from a number of noble Lords.
The point about this set of proposals, though, and things such as the triggering noise, is that they do not solve that problem. That is what drives me mad. The second lot of amendments—which were brought in anti-democratically in terms of process—at least looked like they referred to that set of egregious demonstrations. So that is that bit.
One thing that has been said which I think is very important is that there is a fractious atmosphere in society, which the noble Baroness, Lady Stowell, talked about last time we had this discussion, which is that people feel very strongly about some of the issues of the day. They are not prepared to always say that they support the right of demonstration; they think that something else is going on.
But one thing they definitely think is that the police are biased. They think that the police are erratic. Some people will say, “Well, the police won’t intervene because they’re all too busy taking the knee or driving around in rainbow-coloured vans”. Other people will say, “The police are acting like far-right stormtroopers protecting different types of people.” There is a public debate going on about the role of the police.
So, my objection to these amendment is that not only does it concentrate on noise, which nobody has ever complained about—who has brought that up?—but it puts the police in an even more invidious position. I do want to know how the Government will deal with that. The SOAS policy briefing, which I thought summed it up well, said that the Bill
“compels the police to make decisions about whether protests can go ahead, and therefore forces the police to become a visible and controversial actor in ordinary political debate.”
I think that this will make the position of the police much worse, so even if you are not on the side of the right to protest with no ifs and no buts—as I am—from the Government’s point of view and the Home Secretary’s point of view, who say they are doing it to help the police, they are actually putting the police in a position where they are wandering around assessing noise levels and therefore choosing which demos go ahead, which everybody will think is to do with politics and not procedure. So there seem to me to be some unintended consequences of that approach.
My Lords, I share many of the concerns that have been expressed—particularly the absence of a sufficient mischief here and the absence of proper definition of the ingredients of the offence.
I will add just one further point: the ability to demonstrate, and the ability to demonstrate while making a noise, is a very valuable safety valve in our civil society. If you close off that safety valve, you are going to cause a far greater mischief than is currently the case.
My Lords, I do not think that the Government are trying to destroy democracy or steal all our freeborn rights from us, but I do think they are being extremely foolish. The wording of these amendments will create an absolute nightmare for the courts. Sitting here a moment ago I was trying to imagine how a judge would sum up one of these offences to a jury, and what the jury would make of it. It would be a chaotic scenario.
I will say one further thing, on a personal note. I attended both the great demonstrations against the Iraq war in 2002. One of them comprised over a million people, the second around 600,000 people. Those demonstrations would have been in breach of several of these amendments—not just the noise amendment but the various inconvenience amendments on making it difficult for people to get to their bank machines, hospitals and places of work. Under these amendments, those demonstrations would have been illegal. Is that really what Ministers seek to achieve with these amendments? If they do not, this is an extraordinarily foolish piece of drafting.
My Lords, no one likes pickets. Even pickets do not like picketing. However, these clauses impinge on the right to picket, the right to picket is a fundamental aspect of the right to strike, and the right to strike is a fundamental aspect of the right to bargain collectively, which is a fundamental aspect of democracy at work.
Picketing is a highly regulated area of the law in a very sensitive political area. It has been regulated by legislation since 1875 and the last statutory amendment was in the Trade Union Act 2016. There is also a code of practice regulating picketing. There are no exemptions for pickets from either the criminal or the civil law, but these clauses will restrict even further the limited right to picket.
On the issue of noise, other noble Lords have pointed out the vagueness of the concepts involved here, which will impose a great burden on the discretion of the police in deciding what is noisy and what is not. It is notable that legislation has—and workers are very familiar with this—imposed limits on noise by way of decibels and duration in many industries. Those scientific techniques are not used here.
The very purpose of a picket in a trade dispute is to cause
“disruption to the activities of an organisation which are carried on in the vicinity”—
namely, the employer. So pickets will be caught. I note that the amendment states that
“serious disruption to the life of the community”
may include two situations: first, the supply of
“a time-sensitive product to consumers”
“prolonged disruption of access to … essential goods or any … service, including, in particular, access to … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … an educational institution, or … a service related to health.”
It does not take an expert to know that picketing is put at risk in almost every sector of the economy by these clauses, and it is for that reason that I have added my name to those of the noble Lord, Lord Paddick, my noble friend Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb, in asking for these clauses to no longer stand part.
My Lords, I also believe in freedom and in common sense. There are a number of provisions in this group, including the list we have just heard from the noble Lord, Lord Hendy. Now as I understand it, the Government are responding to the National Police Chiefs’ Council’s concerns. The council feels that, in the new world that has been described by others, public order legislation is not any longer appropriate and does not allow them to respond to the sort of disruptive protest tactics being used by some groups today that perhaps would not have been used in the past. I look forward to the Minister’s response, particularly on the issue of noise, which people have highlighted.
I have two questions to add. First, how will these provisions help against Insulate Britain and what its members have been doing? How will the new arrangements work, particularly the developments as regards juries that others have mentioned? Secondly, I know that there have been concerns about the overuse of delegated powers in this part of the Bill. Indeed, there was an excellent debate in the House last week on that very issue, which some noble Lords were present for. What were the recommendations from the DPRRC and Constitution Committee in this area, and can my noble friend explain how they have been met? My understanding is that definitions of “serious disruption” have now been added to the face of the Bill, which was a concern. But does that meet the concern expressed by our committees?
My Lords, I remind noble Lords that this group includes 26 amendments, and that noble Lords are entitled to speak only once on each group, in case people were thinking of having another go. I cannot possibly speak on all 26 amendments; if I spent only one minute on each, I would be here for 26 minutes. But we on these Benches oppose all the measures in Part 3 of the Bill, including the new government amendments introduced late at night in Committee. We will come to those in a later group.
I am a former senior police officer and part of a small, specially selected group of senior police officers trained in the policing of protests. My view, and the view of the majority of police officers interviewed by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, contrary to what the noble Baroness, Lady Neville-Rolfe, has just said, is that the limiting factor in the policing of protests on the police’s ability to control protests is the number of suitably trained police officers available, not a lack of police powers or legislation.
Not only are new powers and new offences unnecessary but there is a very real danger of dragging the police into political decisions on which protests should go ahead and which should not, as the noble Baroness, Lady Fox of Buckley, has just said. There is a very real danger of more scenes like those we saw at the Sarah Everard vigil on Clapham Common happening with greater frequency. There is a real danger of more and more police officers being drawn into policing protests to enforce more and more restrictions and bans, taking them away from policing their communities and, as a result, further undermining trust and confidence in the police and their ability to enforce the law.
I spoke at length in Committee and do not intend to repeat myself. I refer noble Lords to the Official Report. We support all the non-government amendments in this group. Particularly, we do not agree that protests should be banned because the police think they might be too noisy—so we will be voting in support of Amendment 115.
We agree with the former Conservative Home Secretary who led on the original public order legislation in 1986 that the police should not be able to dictate where and when public meetings or assemblies should take place or to ban them completely. To quote Lord Hurd of Westwell,
“that would be an excessive limit on the right of assembly and freedom of speech.”—[Official Report, Commons, 13/1/1986; col. 797.]
The Minister may say that the provisions simply bring limitations on assemblies into line with the limitations on processions, but I ask what has changed. It is still an excessive limit on the right of assembly and freedom of speech. I will therefore be testing the opinion of the House on Amendment 132. These measures are an outrageous limitation of people’s fundamental right in a democracy, and we oppose them.
My Lords, I start by quoting the right reverend Prelate the Bishop of Bristol, who said that good debate relies on good listening. I hope that noble Lords will listen, as they did in the previous group, to what I have to say.
My noble friend Lord Deben and the noble Lords, Lord Hain and Lord Coaker, were all in agreement that many of them would have been in breach of these provisions in protests that they took part in. No. I disagree with that; the police rarely impose conditions on a protest, and we expect that to continue to be the case.
I thought the noble Lord, Lord Walney, made some compelling arguments about how lucky we are to live in a democracy and how much we value protest—we can hear the drumbeats outside, which no one is going to stop. To answer the right reverend Prelate the Bishop of Leeds, the provisions are not new today; they have been in the Bill from the start.
The government amendments give effect to the recommendations made by both the DPRRC and the Constitution Committee. Under the Public Order Act 1986 as amended by the Bill, the police may attach certain conditions to a public procession, public assembly or one-person protest, including where that is necessary to prevent serious disruption. The Bill enables the Secretary of State to define the meaning of “serious disruption” in regulations, and we have published an indicative draft of such regulations.
However, both the DPRRC and the Constitution Committee argued that definitions should be in the Bill, although the DPRRC agreed that there should be a power to amend the definition by regulations subject to the affirmative procedure. The government amendments therefore take the definitions as set out in the draft regulations and write them into the Public Order Act. Again, I express my thanks to my noble friend Lord Blencathra—although I do not see him in his place—the noble Baroness, Lady Taylor of Bolton, and the other members of the DPRRC and the Constitution Committee for their scrutiny of the Bill. I trust that the amendments will be acceptable to them and indeed to the House as a whole. The word “significant” is lifted from the draft regulations that the Constitution Committee said were not unreasonable.
Amendment 115, in the name of the noble Lord, Lord Rosser, would remove the new noise triggers for the police to impose conditions on public processions. Amendments 123, 124, 125 and 147 would collectively do the same for public assemblies and single-person protests. In response to those amendments, I reiterate to the House that noise generated by protesters can have a significant and detrimental impact on the wider public. It is unacceptable, as my noble friend Lord Hailsham says, that certain protests can seriously disrupt the lives of ordinary people.
It is absolutely right that the Government give the police the tools that they require to tackle disruptive protests. As the noble Lord, Lord Hogan-Howe, stated during the debate in Committee on these measures,
“noise can be more than an irritant.”—[Official Report, 24/11/21; col. 944.]
In some contexts, it can be tortuous, and it is important to contextualise the different situations in which it can happen, such as the time of day or where it takes place. Is it outside an old people’s home, or is it in Parliament Square? Is it anti-vaxxers outside a school, or in St Ann’s Square in Manchester?
It is completely right that the police should have the powers to intervene in exceptional cases where the noise generated by a protest is such that it is injurious to others. As with all conditions, police will only impose conditions on noise where necessary and proportionate and where they have carefully considered protesters’ freedoms of expression and assembly. Of course, they can rightly be challenged in court if they do not. I note that the noble Lord, Lord Paddick, said only last week that, generally speaking, the police are very averse to making political decisions and siding with one particular protest group against another, so that is a significant safeguard. Indeed, it is.
Amendments 132 and 133, in the name of the noble Lord, Lord Paddick, would strike out Clauses 57 and 58 from the Bill. In extending the full range of conditions available to the police for safely managing public processions to public assemblies, the Government are acting on the recommendation of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, which argues that the challenges of safely policing an assembly are inherently no different from those of policing a procession—a point that has also been made by Chief Constable Harrington, the NPCC public order lead.
Additionally, Clause 58 closes a loophole through which some protesters had been escaping conviction for breaching protest conditions, as the law requires an individual to have knowingly breached conditions to secure a conviction. Clause 58 provides that someone “ought to know” about the conditions, removing the loophole where some protesters deliberately avoid knowledge of the conditions the police have placed on their protests. The inspectorate also expressed support for this proposal in its inspection report on the policing of protests.
The provisions in Clauses 56 to 58 and 62 have been repeatedly and often deliberately mischaracterised by commentators and others. The policing of protests has always involved balancing the rights of protesters with those of the wider public who may be adversely affected by a protest. These measures do not stop noisy protests—far from it. The overwhelming majority of protests will continue, as now, without any conditions being attached, whether in relation to the generation of noise or otherwise. But it is right that, where a protest crosses the line in terms of causing disproportionate harm or disruption to others, the police must have the necessary powers to take effective action. My noble friend Lady Neville-Rolfe talked about some of the problems on trains, the Tube and other places, and we will get on to those later, but these clauses do just that and no more—updating laws that are now more than 35 years old.
We have listened to the concerns raised by noble Lords about the regulation-making powers in these clauses and have amended the Bill accordingly in line with the recommendations from the DPRRC and the Constitution Committee. I ask noble Lords that, with these changes, the House now supports these clauses and rejects Amendment 115.
My Lords, I thank the Minister for her reply and all noble Lords who spoke in the debate. These amendments deal with existing parts of the Bill; we will come to the new clauses that the Government propose in later groups. We have very serious concerns about what the existing clauses, to which I tabled Amendment 115 and which many noble Lords have spoken about this evening, will do to the right to protest. I remind noble Lords, because I am going to seek to test the opinion of the House, that Amendment 115 specifically deals with the Bill’s provisions with respect to noise, which are ridiculous, irrelevant and simply will not work. They will impact on the right to protest. If they will not impact on the right to protest, what is the point of the Government proposing the law in the first place?
With respect to the noble Viscount, Lord Hailsham, and the noble Lord, Lord Deben, if I am right they were Members of Parliament during the Margaret Thatcher and John Major Governments. People will say, “This is a bygone age. What does Lord Hain know about it? He’s talking about things from decades ago.” But what about the noble Lord, Lord Deben, and the noble Viscount, Lord Hailsham? There were riots during the poll tax and the miners’ strike; look at all the protests that went on there, many of which I played a part in, particularly on the poll tax and the miners’ strike—not the riots.
I was not born yesterday.
The noise was massive during the poll tax and the miners’ strike protests. The disruption outside Parliament was absolutely enormous: rattling the gates, banging the drums, stopping this and that. What did Margaret Thatcher do? She did not introduce a noise amendment to the right to protest. I completely and utterly reject the premiership of Margaret Thatcher, but she did not do this, and neither did John Major. What has happened that has caused the Government now to introduce these changes to the right to protest with respect to noise, which previous Prime Ministers did not do in the face of some of the most difficult demonstrations, whatever the rights and wrongs of them? It beggars belief.
I say this to the Minister: if these amendments do not pass and the Bill becomes law, there will be a demonstration on climate change, on the building of a dam or a housing estate, or on some road going through a forest, and the police will put conditions on it with respect to noise and the public will say, “When did this happen? Who passed this? What on earth were they thinking of?” If you ask the public whether they object to disruption, or whether they object to protests with respect to their lives, then of course they will say yes. I moan about demonstrations if I cannot get into Parliament, but it does not mean that they are wrong or that they should not take place.
Protesting is a part of democracy. Of course I do not believe that the Government are some sort of right-wing fascist organisation, but I believe that this particular measure is a fundamental attack on a freedom that the citizens of this country have enjoyed for centuries. As such, I hope the Chamber will support Amendment 115.
Amendments 116 to 121
116: In place of the words last left out insert “(2) After subsection (2) insert—“(2ZA) For the purposes of subsection (1)(a), the cases in which a public procession in England and Wales may result in serious disruption to the life of the community include, in particular, where—(a) it may result in a significant delay to the delivery of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—(i) the supply of money, food, water, energy or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2ZB) In subsection (2ZA)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.(2ZC) For the purposes of subsection (1)(aa), the cases in which the noise generated by persons taking part in a public procession may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the procession include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”Member’s explanatory statement
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 12 of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.
117: Clause 56, page 49, line 22, leave out “make” and insert “amend any of subsections (2ZA) to (2ZC) for the purposes of making”
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 49, line 27, page 49, line 28, page 49, line 30 and page 49, line 40 confer power on the Secretary of State to amend new subsections (2ZA) to (2ZC) of section 12 of the Public Order Act 1986 in the amendment in the name of Baroness Williams of Trafford at page 49, line 3 and make consequential amendments to Part 2 of that Act.
118: Clause 56, page 49, line 27, after “particular” insert “, amend any of those subsections for the purposes of”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 49, line 22.
119: Clause 56, page 49, line 28, leave out “define” and insert “defining”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 49, line 22.
120: Clause 56, page 49, line 30, leave out “give” and insert “giving”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 49, line 22.
121: Clause 56, page 49, line 40, at end insert “, including provision which makes consequential amendments to this Part.”
Member’s explanatory statement
Amendments 116 to 121 agreed.
Amendment 122 not moved.
Clause 57: Imposing conditions on public assemblies
Amendments 123 to 125 not moved.
Amendments 126 to 131
126: Clause 57, page 50, line 32, at end insert—
“(2ZA) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—(a) it may result in a significant delay to the supply of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to— (i) the supply of money, food, water, energy or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2ZB) In subsection (2ZA)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.(2ZC) For the purposes of subsection (1)(aa), the cases in which the noise generated by persons taking part in a public assembly may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”Member’s explanatory statement
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 14 of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.
127: Clause 57, page 51, line 3, leave out “make” and insert “amend any of subsections (2ZA) to (2ZC) for the purposes of making”
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 51, line 8, page 51, line 9, page 51, line 11 and page 51, line 21 confer power on the Secretary of State to amend new subsections (2ZA) to (2ZC) of section 14 of the Public Order Act 1986 in the amendment in the name of Baroness Williams of Trafford at page 50, line 32 and make consequential amendments to Part 2 of that Act.
128: Clause 57, page 51, line 8, after “particular” insert “, amend any of those subsections for the purposes of”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 51, line 3.
129: Clause 57, page 51, line 9, leave out “define” and insert “defining”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 51, line 3.
130: Clause 57, page 51, line 11, leave out “give” and insert “giving”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 51, line 3.
131: Clause 57, page 51, line 21, at end insert “, including provision which makes consequential amendments to this Part.”
Member’s explanatory statement
Amendments 126 to 131 agreed.
132: Clause 57, leave out Clause 57
Clause 58: Offences under sections 12 and 14 of the Public Order Act 1986
Amendment 133 not moved.
Clause 59: Obstruction of vehicular access to Parliament
133A: Clause 59, page 54, line 12, at end insert “unless permission for such obstruction has been given by the relevant person”
My Lords, I hope we are all refreshed after that break, particularly the Minister. I thank her for giving the time and energy to meet me last week to consider my objections to Clause 59.
I have brought Amendments 133A and 133B before the House because Clause 59 has been too tightly drawn. It will prohibit large, peaceful and well-organised demonstrations taking place in Parliament Square at any time, even at the weekend, if there was any danger that the weight of numbers would obstruct a vehicle going into Parliament or even, in the words of the clause, make
“the passage of a vehicle more difficult”.
Parliament Square is the temple of protest. It is where the people of this country have gathered for centuries to voice their opposition to government policies, hoping their concerns will penetrate the walls of Parliament. In 2002, more than 400,000 people attended the countryside march. In 2018 and 2019, millions came to the People’s Vote and Brexit day celebration marches, and the women’s march drew thousands to support women’s rights. All ended with massed but organised protests in Parliament Square, all of which, by dint of huge numbers, will have obstructed the vehicle entrances to Parliament. I ask your Lordships to imagine the fury on all sides of the country if these were banned in future.
This is the mother of parliaments, outside which voters should gather to speak truth to power and where we, the parliamentarians who make the law, should hear them loud and clear. At this time, when politicians are seen to be out of touch with the feelings of the people, it is unconscionable that the House should pass a law shielding us from hearing what they have to say. A new poll shows that 79% of people disapprove of a ban, and 75% of them are Conservative voters.
The problem is that Clause 59, as with so much of Part 3 on public order, has been drafted to deal with the headlines about Extinction Rebellion and Insulate Britain deliberately blocking roads and bridges across the country and deliberately obstructing access to Parliament. The drafters have not considered the effect of the clause on large, peaceful protests outside Parliament.
I feel sure that many noble Lords have held protests outside Parliament and understand that permission first needs to be obtained from the GLA and the police. As it stands, the clause will make it impossible for the GLA, which controls the garden at the centre of Parliament Square, to give permission for any protest to take place if there is a danger of obstruction to Parliament by large numbers of protesters. The clause expands the controlled area beyond the garden to the roads and pavements of Parliament Square and half way up Whitehall, to the entrance of Downing Street. When granting permission, the GLA will now have to consider whether numbers of protesters will spill off the garden on to the road. The GLA considers 5,000 people to be the capacity of the garden. Any more will block the roads around Parliament Square.
These amendments are aimed purely at the permissions process between the GLA, other responsible bodies and the organisers of a protest. They are based on the existing wording granting the use of amplifying equipment in the square. They will ensure that large, peaceful protests continue to take place outside Parliament. I know that noble Lords will be worried that the wording of my amendments appears to give permission to protesters to obstruct vehicles; this is not the case. The police will still be involved in the consent process, requiring protesters to move on if they are deliberately blocking entrances to Parliament. Proposed new subsection (6) in Amendment 133B reinforces this by allowing the responsible person to withdraw an authorisation for a protest if the conditions are not being observed.
The Government and the Joint Committee on Human Rights are concerned that the police do not have powers to move on demonstrators who deliberately block access to Parliament. Even if these amendments are accepted, the powers granted in Clause 59 will still be available for the police to exercise. I urge the Minister to accept my amendments to ensure that Clause 59 does not cause an unintended ban on protests in Parliament Square. I know from talking to her that she does not want to become the Minister who bans protests outside Parliament. I beg to move.
My Lords, we support all the non-government amendments in this group. In particular, we agree that, just as protesters can be given permission to use amplification equipment in the vicinity of Parliament under existing legislation, large demonstrations should be able to block roads temporarily, given the necessary permission. We will vote for Amendments 133A and 133B should the noble Viscount, Lord Colville of Culross, divide the House.
In Committee, I spoke at length on why we oppose this clause and support Amendment 137A. I refer noble Lords to the Official Report.
My Lords, I have added my name to these amendments. I congratulate the noble Viscount, Lord Colville, on his excellent introduction. This is the first time I have spoken this evening but my remarks apply to many other aspects of this Bill and many of the other areas that we are voting on.
There are some excellent and important measures in this Bill. I agree that banning dangerous or violent protestors is important; I am pleased that my noble friend the Minister said in an earlier debate that the law must protect the public and prevent extremist protests such as those by Extinction Rebellion and Insulate Britain. However, I respectfully suggest that the measures in Clause 59 are like using not a hammer but dynamite to crack a nut.
The Conservative Party has always championed law and order but also freedom of speech and expression, most importantly around Parliament Square—the very heart of our democracy. Amendments 133A and 133B would protect the public’s right to demonstrate and express views in Parliament Square, which is so important. I hope that colleagues on these Benches will consider supporting these important changes to the Bill.
I do not believe that the Government really intend to ban peaceful protest. My noble friend the Minister will assure the House that such protests can still proceed, and I have no doubt that she is sincere in that assurance. But I respectfully point out that, without these amendments, this legislation could prove a Trojan horse, allowing future Governments to introduce the shadow of repression into our country, and could represent a potential attack on the most fundamental freedoms of our democracy. We could allow this and any future Government to ban large demonstrations around Parliament Square on the basis of a ministerial diktat and police connivance. Indeed, the grounds on which such protests can be criminalised are quite flimsy. One example, as the noble Viscount, Lord Colville, mentioned, is proposed new subsection (4A)—to be inserted by Clause 59(3)(c)—which states that
“obstructing the passage of a vehicle includes making the passage of a vehicle more difficult.”
What does that mean? Is it a 30-second delay? Every large protest would be banned, which would effectively change the way our democracy has worked for centuries.
This country has a proud record of standing up to despots, authoritarian rulers and corrupt dictatorships. We have offered sanctuary to those fleeing repression, for which I will be eternally grateful. The most recent example is of Hong Kong residents fleeing Chinese repression, who witnessed their Government recently tearing down the statue memorialising the Tiananmen Square massacre. When those Hong Kong exiles arrive here and learn that this mother of all parliaments no longer allows large protests outside its door, at any time, what will they think?
Democratic Governments must not surround themselves only with yea-sayers, hearing only what they want or choose to hear and squashing dissent. I believe it is important for noble Lords to stand up for our cherished freedoms, prevent any descent into authoritarian rule and support these wholly reasonable amendments to this Bill.
My Lords, my name is also added to the amendment in the name of the noble Viscount, Lord Colville of Culross, which he moved so eloquently and comprehensively. I really do not want to take up any more of the House’s time, but simply say that we support this amendment and what was said by him, the noble Baroness, Lady Altmann, and the noble Lord, Lord Paddick. If the noble Viscount is not happy with the response he gets and decides to test the opinion of the House, we will support him in the vote.
My Lords, these amendments relate to Clauses 59 and 60, which ensure—as was originally proposed by the right honourable Harriet Harman, as chair of the JCHR, to whom we send our deepest sympathies—that vehicular access to the Parliamentary Estate is not prevented by protests or other activity; and Clause 61, which restates the common-law offence of public nuisance in statute.
I begin with Amendments 133A and 133B in the name of the noble Viscount, Lord Colville of Culross, which I was able to discuss with him and Dominic Grieve last week. They seek to avoid a perceived outcome of Clause 59 that the Greater London Authority will no longer authorise large-scale assemblies on Parliament Square, due to the risk that such assemblies could obstruct vehicles entering or exiting the controlled area around Parliament.
I am most grateful to the noble Viscount for meeting me last week to raise his concerns about Clause 59. I understand that he is concerned that this clause may have the unintended consequences that the Greater London Authority, which is responsible for Parliament Square Garden, would no longer be able to authorise assemblies in the garden if they risk blocking vehicular access to the Parliamentary Estate. I reassure him tonight, as I did the other day, that this is not the case.
The GLA’s by-laws for Parliament Square Garden require that written permission is granted for certain acts to be conducted in the garden; organising or taking part in an assembly is one of those acts. It is important to note that this by-law applies to the garden itself and does not extend to Carriage Gates, nor the road around the garden. The by-laws state that permission will not be given in respect of any matter defined as a “prohibited activity” under Section 143 of the Police Reform and Social Responsibility Act 2011. Clause 59 amends this section to include obstructing the passage of a vehicle into or out of an entrance or exit to the Parliamentary Estate as a prohibited activity.
In practice, this means that the GLA could not permit an assembly in Parliament Square Garden if its stated and primary aim is to obstruct vehicular passage in and out of Parliament. However, nothing in Clause 59 means that permission could not still be granted for any other assembly, even if that risks some individuals in attendance obstructing vehicles entering and exiting Parliament. This is the point I was trying to impress the other day.
Amendments 134 and 135 in the name of the noble Lord, Lord Paddick, would strike out Clauses 59 and 60. I know why he wants to remove them. The JCHR has made it clear that protecting access to Parliament is crucial in ensuring that our democracy can function effectively, and these measures give effect to this recommendation, as I set out earlier. I am sure that all noble Lords across the House will agree that unimpeded access to our legislature is fundamental to the effective functioning of Parliament.
Amendment 140, also in the name of the noble Lord, Lord Paddick, would remove Clause 61. As I made clear in Committee, this clause enacts a recommendation of the Law Commission regarding the common-law offence of public nuisance. This new statutory offence both simplifies and clarifies the existing common-law offence, with two significant changes to narrow its scope; namely, raising the fault element of the offence and introducing a defence of reasonableness. If we strike out Clause 61, the effect would be to leave in place the common-law offence with its wider reach and higher maximum penalty. The aim of the Law Commission is to ensure that the law is fair, modern and simple. Clause 61 delivers on that objective.
Amendment 137A in the name of the noble Baroness, Lady Jones of Moulsecoomb, would remove “disease” from the definition of serious harm in relation to the new public nuisance offence. As I made clear in my response to a similar amendment in Committee, it is right that someone who either deliberately or recklessly places the public at harm by spreading a disease should face the consequences of their actions. The Law Commission recommended the inclusion of disease within the list of serious harms covered by the offence and I see no reason for excluding it now.
That said, having reflected on the debate in Committee, we agree that there are some improvements that can and should be made to the drafting of Clause 61, and the government amendments in this group are directed to this end. Amendments 136 and 137 concern the meaning of serious harm to the public. In its report on the Bill, the JCHR raised concerns that the new offence could be read as
“where serious harm is caused to one person rather than the public or a section of the public”.
I am grateful to the noble Lord, Lord Dubs, for highlighting this point in Committee. As a result, Amendment 137 removes the references to “the person” when defining serious harm, making it clear that, in the context of public nuisance, serious harm must be caused to the public or to a section of the public.
To further improve the clarity of the new offence, Amendment 136 places the element of the offence where a person’s act or omission creates a risk of serious harm into subsection (1). This will make placing the public or a section of the public at risk of serious harm an element of the offence rather than part of the definition of serious harm itself.
Finally, Amendments 138 and 139 clarify that the existing tort of public nuisance will continue to exist and will not be affected by the new statutory offence of public nuisance. I am most grateful to the noble and learned Lord, Lord Etherton, for raising the issue in Committee, and I hope that these amendments will reassure him on this point.
This House plays a vital role as a revising Chamber, but Amendments 134, 135 and 140 adopt rather a blunderbuss approach to these clauses, simply seeking to strike them wholesale from the Bill. Were these amendments to be agreed by noble Lords, the effect would be to send a signal that it was acceptable to prevent noble Lords accessing this place and that your Lordships’ House did not support well-argued recommendations from the Law Commission to simplify and clarify the law. I invite noble Lords to reject Amendments 134, 135 and 140 and support the government amendments. On Amendments 133A and 133B, I hope that I have been able to persuade the noble Viscount, Lord Colville, that it will still very much be possible for protests to take place in the vicinity of Parliament—as it should be—and that he will withdraw his amendment.
I thank those from all over the House who have supported this amendment. I hope the Minister will listen very carefully to the concerns of the noble Baroness, Lady Altmann, about the sort of example we are setting to the refugees from Hong Kong, for instance.
I have listened very carefully to the words of the Minister who claims that this clause will not cause any problems for giving permission for large protests on Parliament Square. The lawyers I have talked to have said that the GLA will, under the by-law, particularly since it is now having to look at this extended area around the garden, have to take into account the sheer numbers and the effect of those numbers on obstructing vehicles. If there are half a million people taking part in a protest, inevitably they are going to obstruct vehicles, whether they mean to or not—of course they are. The GLA, I suppose, could cordon off the whole garden so that protesters could not go on to it, but it would make a bit of a nonsense and I do not think that is what the people of this country would want. Therefore, I would still like this amendment to be part of the Bill and I therefore want to test the opinion of the House.
133B: Clause 59, page 54, line 32, at end insert—
“(3A) After section 143 insert—“143A Authorisation (1) The responsible person for any land in the Palace of Westminster controlled area may authorise a person to carry out in accordance with this section an activity that will obstruct the passage of a vehicle of any description into or from the Parliamentary Estate while on or adjoining the Palace of Westminster controlled area.(2) An application for the authorisation must be made by or on behalf of the person (or persons) seeking the authorisation.(3) The responsible person may— (a) determine the form in which and the manner in which an application is to be made; (b) specify the information to be provided in connection with an application;(c) require a fee to be paid for determining the application.(4) If an application is made to a responsible person, the person must—(a) determine the application, and(b) give notice in writing to the applicant of the person’s decision within the period of 21 days beginning with the day the person receives the application.(5) The notice must specify—(a) the person or persons authorised (whether by name or description),(b) the nature of the activity that is to be permitted,(c) the period to which the authorisation applies, and(d) any conditions to which the authorisation is subject.(6) The responsible person may at any time withdraw an authorisation if the conditions to which it is subject are not being observed by giving notice in writing to the applicant.””
Amendment 133B agreed.
Amendment 134 not moved.
Clause 60: Power to specify other areas as controlled areas
Amendment 135 not moved.
Clause 61: Intentionally or recklessly causing public nuisance
Amendments 136 and 137
136: Clause 61, page 55, line 33, leave out “causes” and insert “creates a risk of, or causes,”
Member’s explanatory statement
This amendment and the amendment in the name of Baroness Williams of Trafford at page 53, line 40 make it clear that one element of the new offence of public nuisance requires a person’s act or omission to create a risk of, or to cause, serious harm as defined in clause 60(2) to the public or a section of the public.
137: Clause 61, page 55, line 40, leave out subsection (2) and insert—
“(2) In subsection (1)(b)(i) “serious harm” means—(a) death, personal injury or disease,(b) loss of, or damage to, property, or(c) serious distress, serious annoyance, serious inconvenience or serious loss of amenity.”Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 55, line 33.
Amendments 136 and 137 agreed.
Amendment 137A not moved.
Amendments 138 and 139
138: Clause 61, page 56, line 23, leave out “any act or omission within subsection (1)” and insert “the tort of public nuisance”
Member’s explanatory statement
This amendment amends Clause 60 to clarify that the Clause does not affect the civil liability of any person for the tort of public nuisance. The tort currently tracks the common law offence and this amendment makes it clear that the replacement of the offence does not affect the tort.
139: Clause 61, page 56, line 26, leave out “such act or omission” and insert “act or omission within subsection (1)”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 56, line 23.
Amendments 138 and 139 agreed.
Amendment 140 not moved.
Clause 62: Imposing conditions on one-person protests
Amendments 141 to 146
141: Clause 62, page 57, line 22, at end insert—
“(5A) For the purposes of subsection (1)(a), the cases in which the noise generated by a person taking part in a one-person protest may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the protest include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”Member’s explanatory statement
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 14ZA of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.
142: Clause 62, page 58, line 15, leave out “make” and insert “amend subsection (5A) for the purposes of making”
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 58, line 19, page 58, line 20, page 58, line 22 and page 58, line 29 confer power on the Secretary of State to amend subsection (5A) of new section 14ZA of the Public Order Act 1986 in the amendment in the name of Baroness Williams of Trafford at page 57, line 22 and make consequential amendments to Part 2 of that Act.
143: Clause 62, page 58, line 19, after “particular” insert “, amend that subsection for the purposes of”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 58, line 15.
144: Clause 62, page 58, line 20, leave out “define” and insert “defining”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 58, line 15.
145: Clause 62, page 58, line 22, leave out “give” and insert “giving”
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 58, line 15.
146: Clause 62, page 58, line 29, at end insert “, including provision which makes consequential amendments to this Part.”
Member’s explanatory statement
Amendments 141 to 146 agreed.
147: Clause 62, leave out Clause 62
Amendment 147 agreed.
148: After Clause 62, insert the following new Clause—
“Offence of locking on
(1) A person commits an offence if—(a) they intentionally—(i) attach themselves to another person, to an object or to land,(ii) attach a person to another person, to an object or to land, or(iii) attach an object to another object or to land,(b) that act causes, or is capable of causing, serious disruption to—(i) two or more individuals, or(ii) an organisation,in a place other than in a dwelling, and(c) they intend that act to have a consequence mentioned in paragraph (b) or are reckless as to whether it will have such a consequence.(2) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section “dwelling” means—(a) a building or structure which is used as a dwelling, or(b) a part of a building or structure, if the part is used as a dwelling,and includes any yard, garden, grounds, garage or outhouse belonging to and used with a dwelling.”Member’s explanatory statement
This amendment creates a new offence of “locking on”, involving the attachment of an individual to another individual, to an object or to land, or an object to another object or to land. It is a requirement of the offence that the act causes or is capable of causing serious disruption to two or more individuals or an organisation and that the accused intends that to occur or is reckless as to whether it will occur.
This group of amendments brings us back to the new public order measures which the Government initially put forward in Committee. I will not repeat the detailed explanation of each of the new clauses but will instead reiterate the Government’s overall case for these additional measures and highlight the significant changes to the package as compared to the amendments tabled in Committee.
These new measures bolster the police’s powers to respond to the disruptive, dangerous and disproportionately costly tactics employed recently by some groups of protesters. For example, the Metropolitan Police spent over £4 million and deployed over 6,000 officers and staff to police the Insulate Britain protests between 13 September and 20 November last year. Injunctions have their place, but they can be slow to implement. Therefore, it is completely right that the Government are introducing these measures to the Bill to give police the right powers to respond immediately to such protests.
It is against this backdrop that we need to build on the measures already in Part 3 of the Bill. We need to ensure that the criminal law is fit for purpose by ensuring that there are appropriate, targeted offences to prosecute those who engage in actions which endanger others and cause wholly unacceptable disruption, and that the penalties are commensurate with the harm caused. But we also need to ensure that the police have the necessary powers to take effective preventive action. These amendments are directed to that end.
Amendments 148, 149 and 150 reintroduce the offences of locking on and going equipped to lock on, and amend the offence of obstructing the highway, all of which were discussed at Committee. Amendment 151 reintroduces the new offence of obstruction of major transport works.
In response to the amendment put forward by the noble Lord, Lord Hendy, in Committee, we have added a defence for this offence relating to trade disputes. Alongside the defence of reasonable excuse, it will be a defence for individuals to prove that their actions were performed in contemplation or furtherance of a lawful trade dispute. This is to make it clear that this new offence does not interfere with the rights of workers to engage in lawful trade disputes.
Amendment 152 introduces a new offence of interference with the use or operation of key national infrastructure. By targeting key transport infrastructure and printing presses, protesters have been able to inflict disruption and misery on the daily lives of the working public and to undermine press freedom. This Government take such acts extremely seriously. The introduction of this offence, which carries a maximum sentence of 12 months’ imprisonment, reflects that.
“Interference” is defined here as an act that prevents the infrastructure in question being operated to any extent for any of its intended purposes. Acts which significantly delay the operation of key national infrastructure are included within the definition. As with the offence relating to the obstruction of major transport works, Amendment 152 includes a reasonable excuse defence and a defence for those engaged in a trade dispute.
Amendments 154 to 158 reintroduce both the suspicion-based and suspicion-less stop and search powers, which were introduced in Committee. The list of offences to which these powers will apply has been extended to include the new offence of interfering with the operation of key national infrastructure. The police need to be able to respond to a seriously disruptive protest—for example, one blocking a motorway. The public, however, would far rather the police take preventive action, such as seizing locking on equipment, to avoid the disruption happening in the first place, so that they can get to work on time and ambulances can quickly get patients to hospital.
Finally, Amendments 159 and 163 reintroduce serious disruption prevention orders, or SDPOs. As I set out in Committee, these court orders address the acts of a small number of prolific and disruptive protesters who repeatedly trample on the rights of the public to go about their daily business. These amendments are largely unchanged from a similar amendment tabled earlier, but we have included express provision to enable a court to adjourn proceedings to hear an application for an SDPO once it has sentenced the offender in question.
It will be for the courts to determine whether it is necessary and proportionate to make an order for the purposes set out in new Sections 342L and 342M of the Sentencing Code. In reaching such a decision, the courts are well versed in balancing the rights of the individual who may be made the subject of an SDPO and the rights and freedoms of the public who may be significantly adversely affected by the protest-related activities of that individual.
All these measures are vital to protecting the country from the highly disruptive tactics employed by a small number of people. The rights to freedom of speech and assembly are, as we have all said, a cornerstone of our democracy, and the Government will not shrink from defending them. But a responsible Government, who stand up for the rule of law, must also defend the rights and freedoms of the law-abiding majority. Their rights cannot and must not be trampled on by a small minority of protesters, who believe they should not be answerable to the law and should be given carte blanche to cause any amount of disruption at any cost. As a Government and as legislators, we have a duty to protect and defend the rights of our citizens. These amendments are a necessary and proportionate means for achieving that balance of rights and responsibilities. I have no hesitation in commending the government amendments to the House. I beg to move.
We have amendments in this group, and I will refer also to the new government amendments. I will try to be brief since I do not wish to test the patience of the House, but I have a bit to get through. In that context, I congratulate the Minister on the quite enormous stamina which she has shown so far. I have to admit that it is way in excess of my stamina for this kind of thing.
We oppose the group of new government clauses on protest. In our view, they should not be added to the Bill, which already contains government proposals in relation to protests. The Bill has been in Parliament for some 11 months. However, these sweeping, significant and further controversial powers from the Government have not been looked at for a single minute by the elected House, which is normal practice in relation to controversial measures. In this House they have had just over one hour’s consideration, after midnight at the end of Committee, which meant, in effect, that the overwhelming majority of noble Lords were denied the opportunity to participate. We have now started to debate them here on Report at 9.50 pm and have been told that Report has to be completed tonight, whether before or after midnight. This is, frankly, an outrageous way to legislate. Sometimes a Bill needs late additions to respond to events that have to be addressed immediately. However, the Government did not apply this approach to abusive and intimidating protests outside schools and vaccine centres. Instead, this House compelled them to do so last week.
We support increasing sentences for those who protest dangerously by blocking motorways. This is also likely to cause a clear risk to life, and we were all aware of ambulances being impeded last year when motorways were obstructed and of members of the public being unable to complete time-critical journeys in the timescale required. Our Amendment 150A to government Amendment 150 would apply these increased sentences where they should actually be targeted: not at every road and highway across the board but at wilful obstruction of the motorways and major roads in the 4,300-mile strategic road network—SRN—at the core of our national transport system. Instruction of the SRN results in the most disruption due to volume of traffic, a lack of alternative routes and the difficulty of getting off such a major route because of infrequent junctions, for the large amounts of traffic obstructed. Our amendment would also largely prevent the higher penalties applying to obstruction of a grass verge or pavement, which may be interpreted as part of a highway.
The Government’s proposed locking-on amendment provides an exceptionally low threshold for a broad offence. It can be triggered by an act that is capable of causing disruption to two people. Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services is not convinced of the need for this power. Its report on balancing protest powers states that
“most interviewees did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”
The reality is that powers already exist for dealing with lock-ons. What we should be looking at is proper guidance, training and, as the inspectorate raised, improving our use of existing resources and specialist officers.
Our Amendments 160A to 160C are based on recommendations of HMICFRS, including consolidating police guidance on public order in one place and keeping track of national and local needs for specialist officers. These are examples of what could have been debated and worked on, if these proposals had been given proper scrutiny time, to find the best way through, but this House has not had that opportunity. I will make a reference to suffragettes: since locking on was used by the suffragettes, I hope that the Government are not going to tell us that it emerged as a tactic for the first time between Second Reading and Report, and that they had no opportunity to bring forward carefully drafted legislation instead of the rushed, broadly drafted power now in front of us.
Government Amendments 151 to 153 on obstruction of major transport works and key infrastructure are overreaching and unnecessary, as there are already existing public order powers that can apply to these situations. Amendment 151 will have an impact particularly on environmental protesters. Frankly, we have reached a sorry state of affairs when we legislate still further specifically against those concerned about the proven threat of climate change and its impact on our way of life and that of our children and grandchildren, and the tardy action on environmental issues. As the Prime Minister himself once committed to lying down in front of the bulldozers in opposition to a third runway, one wonders how much thought he has given to these widely drawn new powers.
We are opposed to the new stop and search on suspicion powers in Amendment 154. We have concerns over their disproportionate use in relation to black and minority ethnic groups and those groups’ level of trust in the police—a problem that we have not faced up to in other uses of stop and search; we also have concerns over how widely the powers are drawn.
It is, though, the final two powers—on suspicionless stop and search and serious disruption prevention orders—that we believe are the most extreme and pernicious. Suspicionless stop and search is a power that, until now, we have used to target serious violent crime and terrorism. These new government clauses would replicate that power to target peaceful protests. Where the power is used, it would permit any member of the public near a protest to be stopped and searched without cause and without suspicion.
The second of the final two powers—serious disruption prevention orders, which can be made without a conviction—are, in effect, essentially protest banning orders. HMICFRS has said that it believed that protest banning orders
“would neither be compatible with human rights legislation nor create an effective deterrent.”
Like serious violence prevention orders, serious disruption prevention orders can be made using inadmissible evidence; they can be extended indefinitely; and breaching them is a criminal offence with terms of imprisonment attached.
These final two powers are overreaching, unwarranted powers which affect the rights of the British public. They should most certainly not be included in the Bill. The Government are trying to force them in through the back door, without full and necessary parliamentary scrutiny, including by this House.
The reason cannot be lack of parliamentary time to provide such full scrutiny—the Commons Chamber finished at 3.30 pm last Wednesday, following the Prime Minister’s performance at PMQs. We cannot support any of these last-minute, rushed and ill-thought-through broad powers in this group of new government amendments, with the exception of approving the increased sentences for wilfully obstructing motorways and major roads.
The absolute priority for us has to be opposing the Government’s suspicionless stop and search and the serious disruption prevention orders being put into statute. These, however, are down as the last new clauses in this group. Frankly, it is already quite late, and we ought to seek to have these votes as soon as possible, to ensure that as many noble Lords as possible can cast a vote.
I conclude by simply referring to what my noble friend Lord Blunkett wrote in April last year:
“Protest might be inconvenient for politicians, but it acts as a pressure valve, allowing citizens to express their views and vent frustrations that could otherwise boil over … If we suppress protest, we could see more anger towards institutions including the police, the judiciary and parliament.”
That is the direction in which we think the Government are heading with these new protest clauses.
I shall speak briefly, because I too want to get to the votes. Despite government claims to the contrary, these are draconian laws that are part of a wider assault on our democracy. We have a Government who are passing rules for us but not acting according to those rules themselves. The police protect the powerful, while getting more oppressive powers to use against the voiceless. This is an autocracy, not a democracy. The Government know that they will face bigger and more vocal protests while they get on with their dog whistle policies, which fail at the moment to distract from the terrible impact of their politics.
There will be a lot of climate change protests in future—I can see myself getting arrested, perhaps more than I have so far. Climate change is the biggest threat to human civilisation. It is an existential threat, and this Government are not acting fast enough.
The Government claim to speak for ordinary people, but it is ordinary people who protest on the streets, and the Government do not speak for them anymore; they do not speak for the great British public, because the great British public find the Bill and these late amendments offensive. The Greens here will be voting against all of these late amendments. We will not support the Labour amendment on the obstruction of the highway, only because it opens the door to the Government bringing back their original amendment. I just hope that the Government listen.
My Lords, the noble Lord, Lord Rosser, gave an excellent speech in opposition to these government amendments and in support of other amendments tabled, and I have little to add to it.
I want to say a word or two about stop and search without suspicion. At one time, every year in London, about 180,000 people were stopped and searched without suspicion under the Terrorism Act. It caused tremendous anger and offence to those who were searched, particularly to those groups who fell into the broad definition of tropes used by police officers to decide who to stop and search. That was stopped. Interestingly, the provisions of Section 44 of the Terrorism Act, as amended, now provide that an authorisation may be given for stop and search without suspicion by an assistant chief constable or above—a more senior officer than in this situation—and only if the person giving the authorisation
“considers it expedient for the prevention of acts of terrorism.”
The Terrorism Act stop and search power is there for the prevention of actual acts of actual terrorism which kill actual people.
The dilution of without-suspicion stop and search powers is a menacing and dangerous measure. I urge the Government to recognise that it is disproportionate to have a lower level of officer allowed to give an authorisation to stop and search basically middle-income, middle-class, middle-educated people who have strong feelings about the environment, who are not going to commit acts of terrorism but will just be a pretty awful nuisance—and that of course has to be dealt with in this Bill. It is disproportionate, and the Government should think twice about it.
My Lords, the Government say that they are a law and order party, and it is important to recognise that law and order requires that, when Parliament makes criminal laws and sets out clear rules, the public themselves can decide whether they will be on the side of law and order or on the side of criminality. That requires that the laws that are introduced are proportional and have clarity.
Any member of the public needs to know whether they are breaking the law, so that they will not be labelled a criminal, but in this whole group of new amendments there is no clear guidance on, for example, what is a reasonable excuse. In an earlier set of amendments, the “ought to know” clause completely made it clear that one might not know. The phrase “reasonable excuse” is used as though one were guilty already and needed to give a good excuse for a perfectly reasonable, legal activity that is now treated with suspicion; the legal burden of proof is on the defence, whereas it should be a burden on the prosecution.
In Committee, when asked what reasonable excuse one might use for carrying a bicycle lock if it could be seen as potentially preparation for locking on, the noble Baroness, Lady Williams said:
“It is a defence for a person to prove that they had a reasonable excuse for carrying the equipment in question. For example, carrying a bike lock for the purposes of locking one’s bike to a designated space for bikes could be considered a reasonable excuse”.—[Official Report, 24/11/2021; col. 994.]
It struck me then that this is a situation whereby we have to explain to the authorities that in fact we are just carrying a bike lock and that we might want to lock our bike up, and that no, we were not the type of person who might misuse our bike lock. To be honest with you, that is no business of the police, the Government or the authorities. It seems alarming that people will need to have reasonable excuses for carrying out peaceful and lawful actions to avoid, potentially, prison terms. This is the micromanagement of what is considered to be the right kind of protest, when the Government claim that it is not attacking protests.
I would like to counter some of the arguments used by people I am broadly on the side of.
I know that this side wants us all not to debate, but I am going to carry on for a moment. I want to get to the vote—I am trying to win a vote. It is allowed—just let me get on with it.
The point that I wanted to make was that this is not about whether we think that there is a climate emergency or not. It is not about what side you are on in particular demonstrations. There are some people on this side who may think that people labelled anti-vaxxers should not be allowed to have demonstrations. We have to be careful about picking and choosing which protests we want.
The proposals increase criminal liability without the need of knowledge of wrongdoing for a whole range of people who might just want to express a different political opinion, which I still think is what debate and protest is all about. If you do not have the knowledge of wrongdoing in that way, peaceful protests will be criminalised, and it will have a chilling effect on the right to protest.
The Government say that they are doing something on law and order, but they are inadvertently criminalising all sorts of innocent people, whether they like it or not. That will damage the right to protest.
My Lords, I suspect I am going to be in a small minority of people who are supporting the Government tonight. Regardless of that, I think the police should have an opportunity to make something of their case. The only, or main, reason we are debating this tonight is because of the disruption that was caused at Oxford Circus, Heathrow airport and on the M25, some of which the noble Lord, Lord Rosser, referred to. It was dangerous at times and deeply disruptive to normal work around London and in other places where it took place. The police were criticised, and I must admit that at times I wondered why they were not using some existing powers around Oxford Circus, which looked like a fairly straightforward case of obstruction. I think they have made a case since, although they have gone a little quieter as the debate has approached, about the sort of help they need.
One of the things they needed help with is locking on. The law is not at all clear that just by locking on to something you have committed an offence. If you do not damage it, what is the problem? Well, it is fine until it disrupts the business or what people are trying to do, so I think there is a need to consider a change of law. If you are going to look for equipment that is going to be used for locking on, there is not much point unless you have a stop and search power. How are you going to find it? There is no power of prevention for these things. This is a power to try to prevent people arriving at a point where they can use the locking-on materials. People are worried about the random nature of stop and search without cause, but it is limited by geography, as it is for a limited area; by time, for a matter of hours; and by the seniority of the officer giving the authorisation. The Section 60 power already exists. Some people do not like it, but it is now relatively rarely used. Most stop and searches are under Section 1, where cause has to be given.
I do not agree with the noble Lord, Lord Carlile, that the class of the person you are about to stop and search is relevant in any way. The law should be equal for everybody, and whether people are middle-class or whatever their background, it not relevant in deciding what the law should be and whether we should intervene in people’s life.
On the power around the road network, the noble Lord, Lord Rosser, said that Labour would prefer that we should target only motorways and major highways. But some hospitals are on side roads. Some ambulance stations are also on quite minor roads, so they can be disrupted, as can police stations and fire stations. So I do not think the quality of the road is relevant for this purpose; it is the intent and the disruption that is caused by the protest when it occurs.
My final point is that it was said by the noble Lord, Lord Rosser, that HMICFRS had called for the law to be changed to make sure that there is a proper record of public order skills around the country. I do not think that is a matter for law. It may well be that there is a need for more recording of skills, but, frankly, I do not think that is going to get us through this problem; you are going to have to have numbers of officers with the right powers.
The very final thing I shall say about these prevention orders is that the harm that these prevention orders are trying to remedy—
Given the noble Lord’s criticism of what I said, which he was perfectly entitled to make, does he agree that if the police without suspicion wrongly stop and search people who normally support the police very strongly and obey the law, it will diminish the respect in which they hold the law?
If someone is stopped and searched without good cause, either maliciously or for any other reason, I do not care whether they were a criminal in the past or a good person; it is a bad thing. Regardless of their background, there has to be a good cause for that stop and search unless the law says that it should be done without cause.
As I was saying about prevention orders, the reason that they were considered was that the rate at which people were being released from bail to return to the protest was overwhelming the ability of the police to deal with the disruption. That is what is being looked at, to see whether there is a possibility of exerting some inhibiting behaviour on the protesters. It would still not be easy. If protesters turn out in sufficient numbers, they will always overwhelm the police—that is the nature of a democracy—but in these disruptions, quite often relatively small numbers have disrupted many people and, frankly, put their lives at risk. So in fact it is a serious matter and the Government’s proposals are fairly reasonable. There may be things that people can argue at the edges, but I do not object to this and I support the Government’s proposals.
My Lords, perhaps I could deal with the remarks of the noble Lord, Lord Hogan-Howe, to begin with. My recollection is that the report on public order from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services showed that many officers did not want additional powers to deal with locking on. That is in the report. My experience is that the police are getting better and better at dealing with locking on, particularly people supergluing themselves to roadways—people are not now glued to the roadway for very long.
On hospitals that are on minor roads, the noble Lord, Lord Rosser, made it quite clear that he wanted the increased penalty of imprisonment for highway obstruction on the strategic road network where there is no realistic way around a blockage that has been put in. A hospital may be on a minor road, but there are other ways of getting to it, and I do not feel that that argument holds water. I will come to the noble Lord’s comments about the serious disruption orders shortly.
The Minister said that these amendments were debated in Committee. That debate started at 11.50 pm. The Minister stood up to make her closing remarks at 1 am. Does she really think that that is serious consideration and debate of these measures?
These government amendments were a hurried response to the Home Secretary’s knee-jerk, populist reaction to Insulate Britain protests at the Conservative Party conference. Consideration of this part of the Bill had to be taken out of order, to give civil servants time to cobble together these last-minute, ill-conceived, badly thought-through acts of desperation, introduced into this House late at night on the last day of Committee without any consideration by the other place. If the Government are determined to bring in these draconian, antidemocratic laws, reminiscent of Cold War Eastern bloc police states, they should withdraw them now and introduce them as a separate Bill to allow the democratically elected House time to consider them properly.
We oppose all these government amendments, for the reasons I set out in Committee—albeit in the early hours of the morning—and I refer noble Lords to the Official Report. Given the hour, we will vote against the most egregious measures: Amendment 151, which is clearly targeted at climate protesters; Amendment 155, which gives police the power to stop and search anyone and everyone in the vicinity of a protest, including innocent passers-by; and Amendment 159, by which the police can apply for an order to ban people from their democratic right to protest, even when they have never been to a protest in their life, let alone been convicted of any offence in connection with a protest. That is the power in these measures—you do not even have to have been to a protest to be banned from future ones. You do not even have to be convicted of an offence in connection with a protest before you can be banned from going to protests.
If the Official Opposition decide to vote on Amendment 148, on locking on, we will support them. We will also vote in favour of Amendment 150A, to restrict imprisonment for highway obstruction to blocking motorways and other parts of the strategic road network.
The anti-protest measures in the original Bill were dreadful. These measures, and the way they have been introduced, are outrageous.
My Lords, I am not sure whether noble Lords want more time to debate or me to hurry up. If noble Lords will indulge me for a minute, I will thank them for the support for the new measures that has come from one area of the House, but it is clear that a number of other noble Lords are less enamoured of the government amendments. As I said in opening the debate, I think the British public will fully support these reasonable and proportionate measures to ensure that their daily lives are not disrupted by the sorts of tactics we saw from Insulate Britain last autumn. This is not an argument for or against climate change; it is about the disruption caused to the lives of the working British public.
I turn to the amendments in this group in the name of the noble Lord, Lord Rosser. Amendment 150A would limit the extent of the increased penalties for obstructing the highway only to individuals who obstruct highways that form part of the strategic road network. I cannot support this amendment. It would leave large parts of our road network unprotected. For example, major trunk roads such as the A400 would not be covered, meaning that individuals could still wilfully obstruct major highways without facing these increased penalties. As the noble Lord, Lord Hogan-Howe, said, many hospitals and schools are not on major roads. In fact, none of the ones where I live in south Manchester are.
Amendments 160A and 160B would require the Home Secretary to introduce statutory guidance on the use of lock-ons during protests and on other public order policing more generally. I completely agree that the police should have access to comprehensive and up-to-date guidance on public order, including on how to handle protestors who deploy lock-on devices. It is also important to acknowledge that the police already have specialist teams trained to remove protestors from lock-ons. These teams continually develop their knowledge and training to keep pace with innovations in locking on, and the police themselves are best placed to develop operational guidance on this matter. On Amendment 160B, the College of Policing is conducting a fundamental review of its authorised professional practice with regard to public order policing. It will create a single landing page that can be quickly updated, ensuring that all public order officers can access the latest training and guidance.
Amendment 160C would require the Government to introduce a national monitoring tool to monitor the deployment of protest removal-trained officers and share best practice in public order policing. Again, I do not think this amendment is necessary. The National Police Coordination Centre already co-ordinates and monitors the use of and requests for protest removal-trained officers across the UK, and the national public order and public safety lead is already working on an evaluation of the requirement for specialist protest officers, following the recent recommendation by the HMICFRS.
I am most grateful to the noble Lord, Lord Hogan-Howe, for his comprehensive explanation of Section 60 stop and search powers, given his vast experience in this area. On the point made by the noble Lord, Lord Carlile, the power will allow police—I think he recognised this—to stop and search an individual or a vehicle where the officer has reasonable suspicion that the individual or vehicle is carrying items made, adapted or intended to be used to cause an obstruction to the highway, as a public nuisance or lock-on offence, or to obstruct major authorised transport works. That is much as in the way the noble Lord, Lord Hogan-Howe, laid out.
The noble Lord, Lord Paddick, asserted the police’s opposition to the lock-on provisions. I want to quote Sir Stephen House, the deputy commissioner of the Met Police, who said less than eight weeks ago:
“The government’s proposed amendments to the Police, Crime, Sentencing and Courts Bill will support the policing response to the deployment of lock-ons in protests. The increased use of lock-ons by certain protest groups has added to the challenging nature of public order policing and created significant disruption to the public over recent years. We have seen individuals lock themselves to the drive shafts of vehicles, locked together in tubes encased in concrete, locked onto structures at height, and glued to roads. Removing these lock-ons safely requires specialist policing teams to be deployed to what can be high risk environments, taking time and significant resources. This is time that our officers are taken away from policing their local communities and local policing priorities.”
This House has a choice. It can stand by the British public, who respect and value the right to peaceful protest but recognise that the protestors should not have free rein to trample on the rights of others; or it can send a signal to the militants who believe that their right to protest trumps all other rights and that there should be no limit on the amount of disruption they cause, whatever the cost to the wider public.
These are people taking their children to school, going shopping, visiting loved ones in hospital, going to Heathrow on their holidays, trying to get to the hospitals that they work in. I live mostly in the north of England and honestly, this House should look at itself. The arguments deployed here tonight are about the middle classes trying to stop working people going to work. I know where I stand on this.
Amendment 149 not moved.
150: After Clause 62, insert the following new Clause—
“Wilful obstruction of highway
(1) Section 137 of the Highways Act 1980 (penalty for wilful obstruction) is amended as follows.(2) In subsection (1)—(a) after “liable to” insert “imprisonment for a term not exceeding 51 weeks or”;(b) for “not exceeding level 3 on the standard scale” substitute “or both”.(3) After subsection (1) insert—“(1A) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.(1B) For the purposes of this section it does not matter whether free passage along the highway in question has already been temporarily restricted or temporarily prohibited (whether by a constable, a traffic authority or otherwise).(1C) In subsection (1B), “traffic authority” has the same meaning as in the Road Traffic Regulation Act 1984 (see section 121A of that Act).””Member’s explanatory statement
This amendment increases the penalty for the offence of wilfully obstructing a highway. It also clarifies that for the purposes of the offence it does not matter whether free passage along the highway in question has already been temporarily restricted or prohibited.
150A: Leave out subsection (2) and insert—
“(2) After subsection (1) insert—“(1ZA) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway which is part of the Strategic Road Network he is guilty of an offence and liable to imprisonment for a term not exceeding 51 weeks or a fine or both.””Member’s explanatory statement
This is an amendment to Government Amendment 150 creating a prison sentence for anyone wilfully obstructing a highway which is part of the Strategic Road Network, removing reference to a general highway.
My Lords, on my amendment, I just say that I did not think that the real problem of wilful obstruction was on side roads; there has certainly been a problem of wilful obstruction in relation to motorways and major roads in the strategic road network for the reasons that I mentioned. The fact that there could be an issue of wilful obstruction on other, lesser highways is not, frankly, a justification for including all highways in these powers under government Amendment 150—hence our Amendment 150A, restricting it to the strategic road network. I wish to test the opinion of the House on Amendment 150A.
Amendment 150, as amended, agreed.