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Police, Crime, Sentencing and Courts Bill

Volume 815: debated on Monday 1 November 2021

Committee (4th Day)

Amendment 106

Moved by

106: After Clause 42, insert the following new Clause—

“Retention by the police of personal data relating to non-criminal conduct perceived to be motivated by hostility

(1) The processing of relevant data by a police authority in accordance with Article 6(1) of the GDPR and section 35 of the Data Protection Act 2018 is not lawful unless it is undertaken in accordance with regulations made by statutory instrument under this section.(2) In this section, “relevant data” means personal data relating to a data subject which is based in whole or in part on the perception by another person that the conduct of the data subject was motivated wholly or partially by hostility or prejudice towards any group of people sharing a characteristic and where the conduct in question is unlikely to constitute a criminal offence.(3) In this section, “a police authority” means—(a) a person specified or described in paragraphs 5 to 20 of Schedule 7 to the Data Protection Act 2018;(b) a person acting under the authority of such a person.(4) Subsection (1) does not apply in respect of the processing of information—(a) pursuant to an ongoing criminal investigation;(b) for the purposes of the internal administrative functions of the police authority.(5) Regulations under this section must—(a) identify different categories of personal data and processing of the personal data in question;(b) include provisions by reference to each of the various categories of processing and personal data as to—(i) the person or persons whose authority is required for the processing of the personal data;(ii) the notifying of the data subject of the processing of the personal data; (iii) the period for which the personal data can be retained (including provision for the granting of authority for extending that period);(iv) the disclosure of the personal data to third parties;(c) have particular regard to the importance of the right to freedom of expression and the extent to which that right is adversely affected by the processing of relevant data by any police authority.(6) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.(7) In section 113B of the Police Act 1997, after subsection (3) insert—“(3A) An enhanced criminal record certificate must not give the details of a relevant matter to the extent that doing so would result in the disclosure of relevant data as defined at subsection (2) of section (Retention by the police of personal data relating to non-criminal conduct perceived to be motivated by hostility) of the Police, Crime, Sentencing and Courts Act 2021.”(8) In this section—(a) the terms “personal data”, “data subject”, “processing” and “the GDPR” have the same meanings as under section 3 of the Data Protection Act 2018;(b) the term “characteristic” includes but is not limited to any protected characteristics under section 4 of the Equality Act 2010.”

My Lords, I rise to speak to Amendments 106, 326 and 330 in my name. In doing so, I have been requested to offer the apologies of the noble Lord, Lord Macdonald of River Glaven, who wished very much to speak on this amendment and whose name is on the list of supporters, but he was not able to be here because of professional obligations.

Amendments 326 and 330 are essentially minor consequential amendments; the meat, if you like, of the debate on these amendments is in Amendment 106. These amendments concern non-crime hate incidents. They are a subject of controversy and much debated, but I hope to persuade your Lordships’ House that this amendment is largely not controversial because it is essentially procedural in character and does not change current practice for recording those crimes.

With so many distinguished lawyers having indicated that they wish to speak in this debate, I hesitate to start by giving a brief summary of the legal background, but I shall do so tentatively and subject to their correction. A hate crime is a crime—it may, in principle, be any crime—that is conjoined with a motivation, on the part of the perpetrator, of hatred towards a particular or specified group. That hatred needs to be perceived either by the victim or by one of a number of other groups of people acting reasonably—for example, a witness, such as a police constable or whatever. It is an alloy, if you like, of a crime and a motivation.

But what happens if one part of that alloy is missing—if there is evidence of a motivation of hate but there is actually no crime or no action that constitutes a crime or meets the threshold for bringing a prosecution? That is the essence of the non-crime hate incident: a hate incident that occurs without being conjoined with a crime. Such non-crime hate incidents are often recorded by the police, and, if the perpetrator is known, they are recorded against their name, so to speak: they go to a record in the name of that person. At the moment, all this happens under guidance issued by the College of Policing. This guidance is quite extensive and elaborate, if you choose to look it up, but it has no statutory force or democratic supervision, and it is inconsistently applied between police forces.

I think that most noble Lords would agree that this is not a satisfactory position. The bulk of this amendment—all of it, apart from one subsection that I will come to shortly—effectively obliges the Home Secretary to issue guidance within six months of the passage of the Bill and to take account of certain matters in doing so, one of which is the human right to freedom of expression. It does not tell her what the guidance that she issues should contain or prevent her from adopting the existing guidance wholesale, should she wish to do so, but it brings the whole matter under political oversight for the first time. Because it is proposed that this should be done through a statutory instrument made under the affirmative procedure, it brings it to the attention, and makes it available for the comment, of both Houses of Parliament. So democratic accountability will be brought to this process for the first time, and I think that that can only be widely welcomed by Members of this House.

This amendment does not explicitly affect police practice in relation to any current police investigation. It does not apply to any police action in relation to hatred expressed towards an individual as opposed to that motivated by hatred of a group. Cases of stalking and things of that character directed at an individual would not be caught by the amendment.

That deals with the bulk of the amendment—all the parts of it—except subsection (7) of the proposed new clause. I am going to come to that separately because it is slightly different. Subsection (7) prohibits the police from including this data, if they have recorded it, when responding to requests for an enhanced criminal record check. As I say, it has a slightly different character to the rest of the amendment, but it addresses what I—and many others—perceive as an injustice.

Other noble Lords may speak later, giving instances of that injustice by referring to particular cases. I would like to address what I regard as the principle of the injustice. If you are accused of a crime, you have the opportunity to state your case and protest your innocence in an open court in front of an impartial judge and a jury. That is not the case if you have a non-crime hate incident recorded against your name. There is no process that those who believe themselves to be innocent of that allegation can pursue to clear their name apart from judicial review which, as we know, is an expensive and arduous process and not available to most people.

This can attach a stigma to a person’s name that will potentially last for the rest of their life. They will be stigmatised for many years for not committing a crime. That seems to be a real and serious injustice, but it is not merely abstract and, as other noble Lords may explain, particular cases illustrate it. Given that this is a largely procedural amendment that adds democratic accountability to a process, I hope it will find support on all sides of the Committee and, indeed, from the Government. I beg to move.

My Lords, it is a privilege to follow and support my noble friend Lord Moylan. If this speech is a little bit longer than I originally intended, it is to cover some of the ground that I understand would have been covered by the noble Lord, Lord Macdonald of River Glaven.

Making non-crime hate records has real-life consequences for an individual that are too important to be left unregulated. As we have heard, non-crime hate records are kept when no crime has been committed but the police decide that they have grounds for concern about how that person might behave in the future. Once such a record is made, it can remain for ever, without review. It will be disclosed in an enhanced criminal record request. It does not take George Orwell to show where that can lead. I suggest Sir Robert Peel would have been astonished.

I turn to the real-life case of Harry Miller of Lincolnshire. In 2018 and 2019, he posted tweets about transgender issues on Twitter. He holds gender-critical views but denies being prejudiced against transgender people. To quote from the judgment in the subsequent judicial review:

“He regards himself as taking part in the ongoing debate about reform of the law”.

Mrs B, a transgender woman, read the tweets and regarded them as transphobic. She reported them to Humberside Police, which recorded this as a non-crime hate incident. She was the only person to complain. A police officer visited Mr Miller at work to speak to him—in his workplace—about these tweets and left Mr Miller with the impression that he might be prosecuted if he continued such tweeting. In a subsequent press statement, an assistant chief constable raised the possibility of criminal proceedings if matters escalated. Imagine what that felt like for Mr Miller. He, however, applied for judicial review.

Mr Justice Julian Knowles, in a very fine and lengthy judgment, found that the police’s action towards Mr Miller disproportionately interfered with his right of freedom of expression. He reminded us that free speech is an essential component of democracy and of these words in the unpublished introduction to Animal Farm:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

As the judge stressed, true free speech includes

“the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative.”

On the facts, the judge concluded that the tweets were lawful and there was not the slightest risk that Mr Miller would commit a criminal offence by continuing to tweet. That is the judgment in the High Court. Further, he said the police visit to the place of work, coupled with the subsequent press statement, combined to create a disproportionate interference with Mr Miller’s right of freedom of expression. He found that this had a potential chilling effect.

Therefore, the police should not continue to record non-criminal speech without proper oversight—that is what we ask. There must be clear criteria applied by all police forces uniformly. At present, the College of Policing lays down guidelines, but they are no more than guidelines: a police force is free, in principle, to depart from the guidelines. Indeed, the current guidelines state that:

“The recording system for local recording of non-crime hate incidents varies according to local force policy.”

That is not acceptable. These records, by definition, are of a non-crime; they are subject to no time limits; and the guidelines do not provide for mandatory periodic review, whether after one year, five years or 20 years. This is too important to be left to varying and uncertain police practice. Policy and practice in this field cannot properly be left to the wide discretion of different police forces. It should be for the Secretary of State, answerable to Parliament, to decide when, if at all, and in what circumstances and how such records may be made and kept.

A person’s reputation is of inestimable value. If a confidential record is made that he or she has spoken or behaved in a way that someone else has perceived to be motivated by hostility but which does not amount to a crime, that individual becomes a marked man or woman when a request is made by a current or prospective employer for an enhanced Disclosure and Barring Service check. As matters stand, that mark or stain can remain for ever, so what is at stake is very serious. This amendment will ensure that regulations set a definitive framework to ensure fairness; to ensure a consistent and fair process of selecting and recording personal data, identifying the different categories of personal data and its processing, identifying the persons whose authority is required for such processing, ensuring they are of suitable rank, the notification of the individual who is the data subject, how long the data may be retained and with what reviews. If someone is to be denied employment, we must be confident that the basis for this is sound and properly managed.

We have heard from my noble friend that the provisions will not apply to the processing of information pursuant to ongoing criminal investigation, nor for the purposes of administrative functions of the police authority. There will be no interference with operational policing. These amendments are needed to ensure that freedom of speech and opinion is not subjected, as the European court has said, to the heckler’s veto, and to create a proper balance between public safety, freedom of speech and protection of reputation.

My Lords, I have added my name to these amendments. It is a great pleasure to follow the noble Lords, Lord Moylan and Lord Sandhurst. In the light of their comprehensive description of the purpose of these amendments, I can be brief.

Much of the data with which the amendments are concerned relates to freedom of expression. Views are expressed or opinions are stated which offend or annoy other people but do not constitute criminal offences. The views or opinions may relate to religion, transgender issues, Brexit or a whole range of other sensitive and controversial questions. Sadly, many people have lost the willingness to discuss and debate; to say, “I disagree with what you say but I will defend your right to say it.” In today’s world a more typical reaction to opinions with which you disagree is to take offence, to demand a safe space, or to complain that your identity has been challenged or that your truth has been denied. Even though no crime has been committed, the police are asked to record the grievance and to retain the data.

I agree with the noble Lords that for the police to have an unregulated power—that is what it is—to retain and use data about such exercises of free speech deters the vigorous debate and discussion on which a free society thrives. It may be appropriate, in some circumstances, for such data to be retained and to be used. None of us is disputing that. But that should be according to law, authorised by Parliament and not just by the discretion of police authorities which choose to apply, or not to apply, guidance from the College of Policing.

I hope that the Minister will consider these amendments constructively and that she will be able to give them the Government’s support, whether in a revised version or otherwise, on Report.

My Lords, I strongly support the proposed new clause and I will give it all the support I can. The arguments put forward by my noble friends are, frankly, unarguable against.

There are three propositions that I think are affronted by this notification of non-crime hate incidents. The first is the chilling effect on free speech. The noble Lord, Lord Pannick, illustrated that very clearly. One has to be assured of the right to express one’s views without the risk of having this notification made against one.

Secondly, one has to recognise that these are very long-standing notifications, which can have a seriously prejudicial impact on individuals. That is thoroughly undesirable, especially as the individual has no right of appeal or an effective way of challenging. Judicial review, for most people, is not an effective way of challenging.

Thirdly, there is the point made by all noble Lords who have spoken so far. There is no statutory guidance; it is local police policy which influences the way these notifications are made. That is inherently unjust, having regard to the impact that this could have.

Finally, I welcome very much that the regulations are to be made by the affirmative procedure. However, as I have said in this House and elsewhere on many occasions, while that is a good thing in the sense that the comments made by your Lordships and those in the other place can be heeded, we do not have the power to amend the statutory instrument. I have long argued that this House and Parliament in general should have the power to amend the contents of statutory instruments. This is a good example of where that would be beneficial.

My Lords, I enthusiastically endorse these amendments and thank the noble Lords, Lord Moylan, Lord Pannick, Lord Macdonald and Lord Sandhurst, for raising this crucial issue. The issue of non-crime incidents has been of concern to a number of us for some years and it is good that it is getting some parliamentary attention at last. I particularly credit those organisations and publications that have persistently raised it in the public realm and whose research informed my remarks, especially the Free Speech Union, of which I am on the advisory council, the anti-racist campaign Don’t Divide Us, and Spiked online.

Too many avoid the issue because it is rather tricky and contentious. One of the reasons it is difficult to raise is because nobody wants to look as though they are being soft on hate incidents. However, I am concerned that this in itself has led to a degree of chilling self-censorship and allowed some confusion to arise about what is and is not a crime when the police are involved.

When the public hear the phrases “hate”, “hate crime” or “hate incident”, they instinctively think of, for example, someone being beaten up because of their skin colour or being harassed in the street because they are gay, and they are appalled and shocked. We assume the worst kind of bigotry and our instinct is that something must be done. However, it is not so clear cut. According to the hate crime operational guidance issued by the College of Policing, hate crime is often an entirely subjective category, based on the perception of the alleged victim; I will come back to this.

What is extraordinary about the guidance on hate crime is what the police consider to be successfully tackling hate crime. The guidance says:

“Targets that see success as reducing hate crime are not appropriate”.

That completely befuddled me. The guidance says instead that the measure of success for the police is

“to increase the opportunities for victims to report”.

I fear that, in this act of enthusiasm to get more people to report hate, the police have muddied any clear distinction between what is criminal and what is not.

The focus on reporting initiatives led earlier this year to rainbow-coloured hate crime police cars patrolling local areas, with the aim of giving communities the confidence to come forward and report hate crime. However well-meaning, such awareness-raising initiatives often encourage people to come forward and report things that are not crimes at all. In fact, earlier this year, a police digital ad van trawled around the Wirral, warning that

“being offensive is an offence”.

Actually, being offensive is not a criminal offence. After a backlash, local police clarified that this was an error. Why did the police get it so wrong in terms of what is a crime?

This is not an isolated incident. A few years ago, Greater Glasgow Police tweeted an ominous warning:

“Think before you post or you may receive a visit from us this weekend.”

This was posted alongside a graphic that warned social media users to consider whether their treats were true, hurtful, unkind, necessary and then, right at the end, illegal. Then there was the South Yorkshire Police Hate Hurts campaign, which asked people to report any “offensive or insulting” social media posts to police officers. None of these is a crime and, in relation to a Bill named the Police, Crime, Sentencing and Courts Bill, it is a concern if the police do not know what is or is not a hate crime, so much so that Cheshire Constabulary recently admitted to conflating crime and non-crime in its hate crime statistics.

This amendment can potentially start unpicking this muddle, because the source of the confusion about what is or is not a crime lies in the creation of the category of non-crime hate incident. As we have heard, this category was established by the College of Policing and its guidance encourages police officers to overreach and police non-crimes. It is worth telling noble Lords how this is posed in the guidance. The NCHI guidance states:

“Where it is established that a criminal offence has not taken place, but the victim or any other person perceives that the incident was motivated wholly or partially by hostility, it should be recorded and flagged as a non-crime hate incident.”

Note the use of the word “victim” to describe the reporter or accuser, when no evidence exists that any crime has been perpetrated against him or her. The victim has to claim only that some action or speech was

“motivated wholly or partially by hostility”.

“Hostility” itself is a vague and subjective term. The guidance continues:

“The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception.”

Furthermore, any other person’s perception can be the basis for this, which is even further removed from any real incident, let alone crime.

Finally, the guidance notes:

“Police officers may also identify a non-crime hate incident, even where the victim or others do not.”

Why? It is because:

“Victims … may not be aware that they are a victim of a non-crime hate incident, even though this is clear to others.”

I find this a kind of dystopian, Orwellian, nightmare world. Imagine untangling your way through that; your name, unknown to you, can appear on a database intended for recording details of criminal offences and be subject to checks by vetting officers when you apply for jobs, as we have heard from noble Lords.

I hope noble Lords can see the dangers here. The subjective nature of the NCHI guidelines creates a real possibility of abuse of the system by people acting in bad faith. The NCHI guidance means that unfounded, spurious and malicious reports can be filed and never tested, let alone the fact that this data gathering distracts the police from pursuing real criminals. I was contacted by one person ahead of this debate, who said, “I had a visit from the police because a member of staff offended another member of staff, who works for me. No crime was reported. The police spoke to me for 40 minutes. In the meantime, the 200 pallets that I reported stolen the week before did not generate a phone call or visit.” Then there is the chilling effect of NCHIs on free speech, as other noble Lords have vividly spelled out. NCHIs can act as a threat, a kind of surveillance of free speech, by people who say it will eventually lead to crime. Anyone who is following the fate of gender-critical feminists, who are constantly accused of hate by a particular brand of trans activist, will understand just how damaging that is to free speech.

This Government tell us all the time that they are keen to oppose cancel culture. I fear that these NCHIs inadvertently contribute to that censorious climate of denunciation and the toxic climate of hate, which we are all keen to combat. I therefore urge the Government to consider these amendments carefully and remove this contradictory anomaly, which, I fear, brings the police and criminal law into disrepute.

My Lords, I was not going to speak on this, because there are much bigger issues coming up later, but I had seen this in a reverse way. It is not completely clear, if you do not have a QC’s training or legal training of any sort, whether this amendment is trying to help or hinder the collection and retention of data.

To me, this seems like a good opportunity to talk about misogyny and other abusive behaviour that falls short of a criminal offence but none the less should be recorded on a person’s police record. The biggest benefit of retaining that data is that it might help in the future investigation of criminal offences. For example, if someone is a notorious misogynist but it has never reached the threshold of criminality, this will help the police’s line of inquiry if said person is later a suspect in a violent attack against a woman. As we all know, the justice system is biased very strongly against women committing crimes.

What I did agree with from all those offering support for the amendment is that proper oversight is absolutely necessary. There should be some regulation about this, because some of the anecdotes mentioned seem ridiculous. I still have not decided whether I support this; it would depend on how it dealt with proper oversight.

My Lords, I was not going to speak to this amendment, but like the noble Baroness who spoke before me, having listened I am so minded. I will study the amendment very carefully, but a balance has to be struck. That is always most difficult on issues of human rights and freedom of speech.

We have to deal with the reality that hate speech, whether intended as hate speech or not, can often incite physical acts of violence. During the pandemic we have seen not only homophobia—as a gay man I have a particular interest in that, but my interest is in all physical hate crimes—but an enormous rise in physical hate crimes, some of them reported as happening on the crowded Underground or in domestic situations, because people are in much closer quarters than they would otherwise be.

My reason for speaking is to add a note of caution about how we proceed. I will study the amendment in detail, as I said, but we must respect that speech that could be defined as hate speech, or perhaps is not, can often encourage individuals to take actions against people who they feel should not be within their communities or do not belong.

My Lords, I support my noble friend Lord Moylan’s amendments in this group. Somehow, we have ended up in a position where freedom of speech—a precious part of our way of life—has been seriously constrained by something the police have invented themselves around perceptions of hostility. I find it incomprehensible that the Government have allowed the police to carve out this territory unchecked. Why has the College of Policing—a wholly unaccountable body—been allowed to invent a wholly new form of recording of behaviour that, by definition, is not criminal? Can my noble friend the Minister explain how we got here?

The recording of non-crime hate incidents is not trivial. It drains police resources from the other things they should be doing: reducing knife crime; actually solving crimes rather than recording them; or making women feel safe on our streets—just a few of the things that ordinary people think are more important. As we have heard, those who have non-crime hate incidents recorded against them are often completely unaware that it has happened, which, if nothing else, is a denial of justice. The information can be kept indefinitely and, most chillingly, can be reported to third parties under the Disclosure and Barring Service. This means that the police have created for themselves the ability to wreck people’s careers.

We live in a society where the expression of views that others disagree with is becoming dangerous. The case of Dr Kathleen Stock is the latest example of this. Disagreement is too often and too rapidly equated with hate or hostility. The mere existence of non-crime hate reporting fuels this intolerance. The police are actively encouraging non-crime hate reporting by giving a platform to people who claim to be offended by the views of others. It is a cancer in our society that we should eliminate before it becomes dangerously pervasive.

Amendment 106 is a complex amendment and I pay tribute to my noble friend Lord Moylan for his clear introduction of it. I hope that my noble friend the Minister will not hide behind a critique of the amendment but engage positively with the substance of the issues that my noble friend and others have raised.

Having listened with great interest to what the noble Baroness, Lady Fox, read out as to the current guidance given by the College of Policing, and given the balance referred to by the noble Lord, Lord Cashman, it seems that the very first thing is that the guidance should be scrapped. It should not be waiting for the conclusion of this rather long-winded Bill. Somebody should be getting in touch with the college and either telling those there not to give any guidance at all or getting the Government to tell them in the meantime the sort of guidance that could go forward pending this excellent amendment, which I support.

My Lords, I did not participate in Second Reading on the Bill, but I did get some correspondence that explained to me what was going on, and I just could not believe it. I am not going to repeat the arguments which were so eloquently put by the noble Baroness, Lady Fox, and the supporters of the amendment but I could not believe it. As an employer, I am required to do criminal record checks and if I got a response that said someone was guilty of hate crime, I am afraid their application would go straight in the bin. Yet we discover that people can be put on such a list without their knowledge, as my noble friend Lady Noakes said, and that their name will stay there indefinitely. That of course does not apply to people who have actually been convicted of crimes, so they are in the worst of all positions.

Then there is the arbitrary nature of this recording, so I wondered how big a problem this is. I am told that there have been 119,934 of these incidents recorded by 34 police forces and that 2,130 of them were done by children. It is extraordinary that this could be happening and is part of a wider concern where our free speech is being undermined. I went on Twitter; I think I lasted about three months. I have spent 40 years offending and upsetting people with the things that I said. So far as I know, I am not on a list as having committed a hate crime.

However, the essence of our democracy is that there should be free speech and that our police should be in the business of finding out what the evidence is, not turning into the people who conclude and are, in effect, prosecutors. I will not detain the House but among the examples given was someone who expressed the view that trans women should not have access to women-only spaces. Well, I believe that; is it a hate crime? Am I not allowed to say that? The fact that someone could be put on such a list indefinitely offends against our democracy.

I am sure my noble friend the Minister will have a brief, because all Ministers always do. I am sure she will have her brief from the Home Office—I worked in the Home Office for a while—and it will say that the amendment is not perfectly drafted and that some provision elsewhere could cover it, and all the rest. I hope she will throw that away and give an undertaking not only to bring forward a government amendment but, this very day, to get on to the College of Policing and end this absolute outrage.

My Lords, I think I am probably quite woke, and proud to be so; none the less, I support the broad thrust of the amendment from the noble Lord, Lord Moylan, subject to a couple of caveats. The first caveat is a slightly light-hearted one. As a serial offender, I gently say to noble Lords and friends across the Committee that the overuse of adjectives named for great writers does not always help the cause of human rights. We have all done it: “Dickensian” for socioeconomic rights and “Orwellian” or even “Kafkaesque” for civil liberties. “Chilling” is similar. In fact, an online wit once said of my overuse of these terms: “That Chakrabarti woman finds everything chilling. She sees refrigerators everywhere.” That is just a gentle point about the way we frame this.

I support the broad thrust of this, but the problem is not just about allegations of hate. It is about soft information, as it is sometimes called, or allegations that are not capable of sustaining a criminal charge and should not sit on databases for years and years, or indefinitely. This problem has been growing for many years with the rise of the database state and the potential to hold all sorts of data, even if it never matures into a charge. That is dangerous.

In my previous role as director of Liberty, I saw many cases of this kind. Not all involved free speech. I remember one woman who had allowed her small children to play in the park while she went to a kiosk, and people thought they were unattended. She was cautioned by the police because she was at the borderline, they thought, of neglect, but there was no question of pursuing a charge. None the less, this data sat around for years and was hugely detrimental to her when she sought to work in positions of care.

This is not just about the glorious culture wars that have got everyone to their feet today. It is not about your views on trans inclusion or not, but about whether so-called soft information or police intelligence that never matures into a charge should sit unregulated, off the statute book, as a matter of police discretion and administration. Whatever our views on the free speech point, we surely have to agree with procedural point that the noble Lord, Lord Moylan, was right to make clear.

I remind noble Lords that free speech is a two-way street. It is not just about the woke and so-called cancel culture; it is also about protesters who feel that they attend demonstrations and sit on police databases for many years just because they have been caught on CCTV. We in your Lordships’ House would do a great service to the nation if, whenever we consider these so-called culture wars that centre around identity politics and in particular free speech, we remember that it is a two-way street. It is people on either side of very contentious arguments who sometimes want to “cancel” each other, and we should remember that.

My final point is a substantive one about the way I urge the Minister to take this forward. Given that the concern is about not just hate incidents but all soft information that may be held indefinitely, can the Minister’s response today—or on Report, with, I hope, substantive government safeguards—be comprehensive and address not just non-crime hate incidents but all soft intelligence and all police data about individuals that could be to their detriment going forward, whether it touches on free speech rights or other rights such as Article 8 rights to privacy and autonomy? Can this soft information that has been held administratively by the police be on the statute book and brought under proper regulation and control?

My Lords, the issue is very simple. We surely have to decide whether hate crime and non-hate crime, and all their different manifestations, should be left to police guidance, or whether the issue is far more important than that and should be brought under the process of Parliament—legislative control and legislative process. To me, the answer is perfectly clear: the latter.

My Lords, like the noble and learned Lord, I shall attempt to be very brief indeed. My understanding of the law is that it should bring about a degree of certainty in society and a degree of reconciliation. I fear that the Bill as it stands does neither: in fact, it does the opposite. It has the perverse impact of making division and intolerance more likely because it points the finger of accusation at people who have done no wrong. As such, it seems to me to be an intrusion too far. The perverse consequence of trying to stamp out hate plays into the hands of the oversensitive and the intolerant, and actually gives strength to those who want to damage others by making outlandish or, indeed, even malicious accusations.

Two weeks ago, we stood in this House paying tribute to Sir David Amess. The Chamber was filled with voices of alarm that social media and everything else had fuelled intolerance and injustice. These provisions might well be misused to pour petrol on those flames. The test of innocent until proven guilty is turned on its head: that is unacceptable. When officialdom is given the power to police the thoughts of the people, it crosses a dangerous line. I have said enough; I said I would be brief, but I am following in the footsteps of some very powerful speeches. I wholeheartedly support these amendments, and I hope that the Government and the Minister are in listening mode.

My Lords, I want to make a point about something that is not directly related, but which I found quite odd. A few weeks ago, I was arrested for speeding. It was the first time in 40 years that I had actually done anything wrong while driving. Interestingly, the notice I received clearly said that the fact that I had no other points on my licence was irrelevant because that would be unfair to others. I do not understand how, if you have been a good guy and have never done anything wrong, that cannot be a positive factor, yet in this Bill we are accusing people and putting them immediately in the negative, even though there is no serious proof. I therefore support the amendment.

My Lords, on behalf of these Benches, I too support these amendments, for all the reasons given by the noble Lords who tabled them. Of course, the principal amendment seeks regulations and lacks specificity. It does not seek to define all the circumstances for retaining, recording, using or disclosing personal data relating to hate crimes or non-criminal hate incidents or otherwise. That is sensible, and it is now for the Government to accept the principles that underly this amendment and come forward with proposals. Of course, I accept the caution which the noble Viscount, Lord Hailsham, brings to the question of regulations that are unamendable; nevertheless, this is a complex area that needs a complex response.

The principles engaged are important. As the noble Lord, Lord Moylan, pointed out, this amendment is not concerned with established hate crime or in any sense with defending hate crime. It starts from the principle that personal data deserves protection from the arbitrary retention, use and disclosure by the police, enforcement agencies and authorities generally, and the converse principle that disclosure should be subject to the rule of law and to principles of accountability—points made by many in this debate, and briefly but eloquently by the noble and learned Lord, Lord Judge, a few moments ago.

The conduct with which these amendments are concerned is not provably, still less proved, criminal—a point made by many. They seek to control the arbitrary retention, use and disclosure of personal information, based on a subjective perception of a citizen’s motivation, in the absence of solid evidence or proof. It is subjective, one notes, because it is often based on the subjective view of another citizen—no better informed, necessarily, than the citizen about whom the information is then held.

The noble Lord, Lord Moylan, spoke on the basis that subsection (7) was in a different category from the rest of the clause. I prefer the way that the noble Lord, Lord Sandhurst, put it, when he set out the principles that underlay the whole of this amendment. It is not often that I find myself agreeing with almost everybody in the House, including, at one and the same time, the noble Lord, Lord Forsyth of Drumlean, and the noble Baroness, Lady Chakrabarti—but I do. Even on this occasion, although I understand the hesitations voiced by the noble Baroness, Lady Jones of Moulsecoomb, she and the noble Lord, Lord Cashman, accepted the need for regulation in this area.

The amendment is directed at achieving sensible limitations on the retention, use and disclosure of data to others. This is an area where the Government ought to act and that has become controversial, with the emergence of guidelines that are, frankly, offensive to justice and parliamentary democracy. I therefore invite the Minister—I believe that I speak for the House in doing so—to return to the House with proposals that accept the principles that we have enunciated and will give rise to amendment of the Bill, to its vast improvement.

My Lords, as the noble Lord, Lord Marks, said, it is unusual to have such unanimity across the House in Committee on something that is superficially a very complex matter. I agree with two noble Lords in particular. The noble and learned Lord, Lord Judge, was very succinct: he said that the information that the police retain should be subject to parliamentary or government control and not to police guidance. I also agree with the noble Lord, Lord Marks, in being cautious about regulation and having a full role for Parliament in any rules that are introduced.

I am sure that this is a very complex matter. I have just been wondering whether, in my role as a sitting magistrate in London, I would see this information. I obviously routinely see the police national computer—PNC—list, which includes convictions, cautions and bail conditions. If we go ahead and have a “bad character” application for a trial, additional information may be disclosed to us—to do with allegations of, say, a domestic abuse nature.

I was also thinking about my role sitting as a magistrate in family court, where I routinely see allegations that have not been substantiated in any court but have been recorded over many years in social services reports. I think that it is right that I see those allegations when we as a court are making decisions about the way that children should be treated in the context of a family court.

I give those two examples, which are different to what noble Lords have spoken about, to acknowledge the complexity of the situation with which we are dealing. I am sympathetic to the points that have been made by noble Lords, but I am also sympathetic to the Government addressing this with an open mind. I will listen with great interest to what the noble Baroness says about whether they propose bringing back any amendments at a later stage of the Bill.

My Lords, I thank all noble Lords who have spoken in this debate, which has been very constructive. I thank my noble friend Lord Moylan for tabling the amendments. I applaud the noble Lord, Lord Cashman, for promoting the need for balance, and the noble Lord, Lord Ponsonby, for his concluding words.

I say at the outset that the Government do not disagree with my noble friend’s view that people should not be inhibited from saying what they think, provided that it does not transgress the legal framework that this Parliament has put in place. Noble Lords would all be concerned if the activities of the police were—even if inadvertently and quite possibly for the best of motives—having an adverse effect on particular individuals who had committed no crime. If that possibility were having a chilling effect, as the noble Lord, Lord Pannick, said, or causing people to temper their quite lawful remarks, that would be a most unsatisfactory state of affairs.

That is my starting point. I will try to set out some of the background to the issues raised by the amendments that are before noble Lords. My noble friend Lady Noakes asked: how have we got here? It is a key legacy of the Macpherson inquiry, set up to consider the issues surrounding the murder of Stephen Lawrence, and is intended to give the police the means to understand tensions within communities before they escalate to serious harm.

As the name implies, the data pertains to incidents that are not crimes. It can include location data to know where repeat incidents of apparent tension and hostility might occur—for example, outside a place of worship. In this respect, the data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes that may later occur. The importance of such intelligence has been illustrated where its use could have prevented real harm. The tragic case of Fiona Pilkington and her daughter, subjected to persistent hate and abuse and where the police failed to draw the links to repeated incidents of harassment, is a prime 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 that has been made against a person but was not proven. I know there has been concern that such data might appear in enhanced criminal record checks, which are required for jobs such as working with children and vulnerable adults, and that a person could be inappropriately disadvantaged for expressing a sentiment that is in no way criminal.

Precisely to guard against that possibility, the disclosure of non-conviction data in such checks is covered by statutory guidance issued by the Home Office to chief officers of police. This makes it clear that the police should disclose such information only after careful consideration and when it is proportionate and relevant to the job in question. Data of this kind can be disclosed only on the say-so of a senior officer, who should also consider whether the individual concerned should be given the opportunity to make the case that the information is not shared. Individuals also have the right to request an independent monitor to carry out a review of whether information is relevant to the role for which they are applying.

In practice, it is rare for the police to disclose non-conviction information of any kind: only 0.1% of enhanced certificates included such information in 2019-20. However, I fully understand that the public are concerned with how the collection of non-crime hate incident data might infringe fundamental liberties, particularly free expression, and may harm a person’s future prospects. However, I do not think that it is as simple as saying that the issue could be resolved through the introduction of more stringent regulations governing the processing and disclosure of data. We need to avoid unintended consequences through any reform of this practice. First, we need to ensure that we do not tie the hands of police in collecting the non-personal location data that I describe, and which can be vital in building an understanding of hotspots where serious harm might occur; this takes us back to the point made by the noble Lord, Lord Cashman, about balance.

Secondly, it is important to remember that the process of determining whether a crime has occurred is not always linear or simple. While the law on hate crime is clear, the process of determining whether an offence was committed may not be. The use of non-crime incident recording can exist in the grey space between the police making initial inquiries and making records such as this, and a decision to take no further action due to lack of evidence, or where a suspect cannot be identified. Non-crime hate incident records often form part of the normal record-keeping of early criminal investigations.

The data recorded may prove material to establishing a pattern of conduct when an investigation is reopened, or where further criminal complaints are made. Simply put, suggesting a clear dividing line between work to tackle crime on the one hand, and this form of data collection on the other, is not entirely accurate. The data is part and parcel of crime prevention. It must, however, be fair and proportionate to the harm that it is seeking to avoid. The public must also have faith that it does no more than strictly necessary to tackle this harm and preserves free speech. I set this out to make it clear that this is not a simple issue, as the noble Lord, Lord Ponsonby, said, nor one that can be solved just by the stroke of a pen.

However, as I said at the start of my remarks, the Government have considerable sympathy with the intention behind my noble friend’s amendment. Earlier this year my right honourable friend the Home Secretary wrote to the then acting chief executive officer of the College of Policing, and to the relevant lead in the National Police Chiefs’ Council, to ask them to explore further and consider whether there are realistic and credible options for reforming non-crime hate incident recording to improve personal data protections for those connected with incidents which do not lead to a criminal charge. That is to address the question raised by the noble and learned Baroness, Lady Butler-Sloss, and to agree with my noble friend Lord Forsyth of Drumlean. I am happy to say that the College of Policing has given this issue serious consideration and come up with some suggestions which the Government are now considering. The college has also pointed out that there is ongoing litigation which is very pertinent to this issue. Accordingly, it would not be appropriate for me to set out a definitive position on what happens next. To all noble Lords, I say wait and see. We will need to see how the litigation pans out and to engage in ongoing dialogue with the College of Policing.

My Lords, I am not a lawyer, but can the Minister explain why she thinks that this is a matter for the College of Policing and not for Parliament and the Government?

I am simply pointing out that the Home Secretary has been in touch with the College of Policing to see if this issue can be improved and reformed further. I was saying, “Let’s count nothing in and nothing out.” I hope that my noble friends Lord Moylan and Lord Forsyth of Drumlean will take comfort in my right honourable friend the Home Secretary having identified a problem for which she is seeking a solution.

There will be more to be said in the coming months, but I hope that for now I have said enough to reassure my noble friend Lord Moylan and that he will see fit to withdraw his amendment.

My Lords, my noble friend invited the House to wait and see. Can she give us some idea of how long that wait might be?

I can certainly promise my noble friend and noble Lords who have been involved in the debate this afternoon that I will go back and see if I can put a timeframe on it.

My Lords, when I tabled these amendments, I had no idea that they would find universal approbation in all parts of the House or attract the support of so many distinguished legal figures. It is quite humbling to look at the list and see my noble friends Lord Sandhurst and Lord Hailsham, the noble Lord, Lord Pannick, the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss—all highly distinguished figures in one department of the law or another. Indeed, I may have missed some speakers whose careers I am not equally familiar with. They are all united on two fairly straightforward points: first, that the operation of the current system of recording can cause genuine harm, unjustly, to particular individuals; and secondly, that this process should be subject to statutory and parliamentary supervision. Really, that is the essence of the entire case for supporting these amendments.

There were many speeches, for which I am grateful. I do not have time to thank everybody but it was an excellent debate, with speeches made by many people who, like myself, do not have any pretensions to legal expertise, such as the noble Baroness, Lady Fox of Buckley, my noble friends Lady Noakes, Lord Forsyth of Drumlean and Lord Dobbs, the noble Baroness, Lady Chakrabarti—

Did I make a mistake there? Sorry. I am very grateful to everyone who has spoken.

I particularly draw attention to the remarks made by the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Cashman. They both made a very important point, which is that it can be useful to the police in preventing crime in the future to have access to this information and, in certain cases, to retain it. I do not pretend that the drafting of the regulations envisaged by these amendments is going to be simple. It will have to take account of the important points that they made. But these amendments do not prejudge the weight to be given to those various factors when the Government come to draw up the guidance envisaged. I am very sympathetic to the points they made.

I would like to give everybody a gold star for their speeches, except possibly my noble friend on the Front Bench, who sadly struggled; it is a matter of bitter regret to me that goes to my heart. My noble friend Lord Forsyth of Drumlean put his finger on this: she struggled to explain, and did not really even attempt to explain, why these provisions should not be the subject of statutory supervision. She gave an example of harassment of an individual as to why this information should be retained. In my explanation of the amendment, I tried to point out that it would not affect harassment of individuals in individual cases. But if she feels that is not sufficiently clear in the amendment, I would be happy to accept further amendments from the Government that would make it abundantly clear. I hope that deals with one of the points she made.

My noble friend also said—and this is always an argument for doing nothing—that we must beware of unintended consequences of more stringent regulation. We have not asked for more stringent regulation or indeed for less stringent regulation; we have simply asked for proper regulation by properly constituted bodies. We are leaving it very much in the hands of the Home Office and my noble friend to come forward with something that they think appropriate.

I am very encouraged—if I can give some consolation to my noble friend—by her remark that her colleague the Home Secretary recognises that there is a problem and that some indication of some possibility of action was implied by that. Taking heart from that comment, I beg leave to withdraw the amendment.

Amendment 106 withdrawn.

Amendment 106A not moved.

Schedule 3: Extraction of information from electronic devices: authorised persons

Amendment 107 not moved.

Amendments 108 and 109

Moved by

108: Schedule 3, page 202, line 6, at end insert—

“An officer of the department of the Secretary of State for Business, Energy and Industrial Strategy.”Member’s explanatory statement

This amendment provides for an officer of the department of the Secretary of State for Business, Energy and Industrial Strategy to be an authorised person for the purposes of Clause 36.

109: Schedule 3, page 202, line 18, at end insert—

“The Police Investigations and Review Commissioner.A person designated by the Police Investigations and Review Commissioner under paragraph 7B(1) of Schedule 4 to the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10).An officer appointed by the Police Ombudsman for Northern Ireland under section 56(1) or (1A) of the Police (Northern Ireland) Act 1998.”Member’s explanatory statement

This amendment provides for the Police Investigations and Review Commissioner in Scotland, persons designated by the Commissioner in Scotland and persons appointed by the Police Ombudsman for Northern Ireland to be authorised persons for the purposes of Clause 36.

Amendments 108 and 109 agreed.

Schedule 3, as amended, agreed.

Clause 43: Pre-charge bail

Clause 43 agreed.

Amendment 110

Moved by

110: After Clause 43, insert the following new Clause—

“Bail and primary carers

(1) Section 4 of the Bail Act 1976 is amended as follows.(2) After subsection (9), insert—“(10) Where a court determines whether to grant bail in criminal proceedings to a person to whom this section applies who is a primary carer for a child or pregnant, the court must—(a) consider the impact of not granting bail on the child or unborn child; and(b) presume (subject to victim impact or other relevant considerations) that it is in the best interests of the child or unborn child for bail to be granted.(11) In this section—(a) “child” means a person under the age of 18, and(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””Member’s explanatory statement

This Clause reflects the requirement for judge to consider the impact of not granting bail on a child when determining, in criminal proceedings, whether to grant bail to a primary carer of a dependent child.

My Lords, I am pleased to move this amendment, which has the support of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Dubs, and the noble Baroness, Lady Massey. I am grateful for the knowledge and wisdom they will bring to the debate. I declare an interest as Anglican Bishop for Her Majesty’s Prisons in England and Wales and president of the Nelson Trust.

The sentencing of a primary carer can have a serious detrimental impact on the rights of a child and their life chances, yet the fact that they are a primary carer is not consistently considered by the court making the sentencing decision. Amendment 110 would require judges to consider the impact on a child of the decision of not granting bail when determining in criminal proceedings whether to grant bail to a primary carer of that dependent child. Amendments 215 to 217 aim to address inconsistencies in sentencing by requiring judges and magistrates to give due regard to the impact of a sentence on any dependent children and their welfare when sentencing a primary carer. The intention of Amendment 218 is to gather the relevant data about the number of prisoners who are primary carers and the number of children who have a primary carer in custody. Given that there are five amendments here, I hope noble Lords will bear with me.

I know other noble Lords will cover in greater detail the recommendation of the Joint Committee on Human Rights that the rights of children whose primary carer is in prison be upheld. In the vast majority of cases, the primary carer is the mother, and this will be my point of reference today. However, I acknowledge that for some children the primary carer may be someone else. My starting point with these amendments is not that primary carers—mothers in the most part—should never be given a custodial sentence. It is instead that we must find a way for the least harm to be caused as a consequence of sentencing. Custodial sentences for mothers punish children, including the unborn, and that is not justice.

I believe not only that every person is created precious and with unique potential but that we are created as people of relationships and that perfect wholeness and harmony—shalom—is about everything in a perfect interdependent relationship: humanity and all creation; of course, I would add, rooted in God. If we want a criminal justice system which is about justice, safety, transformation and the flourishing of individuals, communities and society, we have to attend to the whole picture of relationships—the whole system, and indeed, the long term. If we are to strengthen family ties, reduce reoffending and disrupt intergenerational cycles of abuse, trauma and offending, there must be consideration of where and how a mother serves her sentence.

So often prison is not able to meet the rehabilitative needs of the people who are sent there and will also not be about enabling the better safety of the public or strengthening communities and society. Many women are often in prison for only a few weeks. The majority of women are there for less than six months and, according to the Prison Reform Trust:

“72% of women who entered prison under sentence in 2020 have committed a non-violent offence.”

Alternative community-based provision must be available, well funded and trusted by those making sentencing decisions.

Last month, the Lord Speaker graciously allowed me to host an event here in the River Room. The most powerful speaker at that event was a young mother who shared her lived experience of addiction, domestic violence and a point-of-arrest diversion programme facilitated by the Nelson Trust through Avon and Somerset Police. I am grateful to have further opportunities to speak about the need for diversion later in Committee, so in this debate I will simply repeat Chloe’s powerful testimony of restoration. She said: “I now have my family back. I see my daughters every day. They stay overnight with me and together we are making happy memories. I am the happy, confident, healthy mum I always wanted to be and now I am one year sober.”

Some 95% of children have to leave their home when their mother goes to prison. Parental imprisonment is recognised as an adverse childhood experience that could have a substantial negative impact on children’s long-term health and well-being as well as their educational attainment. It can also seriously affect their life expectancy and the likelihood of going to prison themselves. According to Dr Shona Minson,

“children suffer short, medium, and long term and lifelong harms from being deprived of their parent by imprisonment.”

So often, these children—and the impact on their lives—lurk in the shadows unseen and the light needs to be shone there if we are to see the full picture and the consequences of our failing to uphold the right of the child within our criminal justice system. We also need to recognise that the impact on these children may not remain hidden in the long term. The intergenerational impact of imprisonment is well documented. Reportedly, 65% of boys with a convicted parent go on to offend themselves and children of prisoners have twice the risk of antisocial behaviour compared with their peers.

Three weeks ago, I visited Adelaide House, the female approved premises in Liverpool. One of the women there recalled how her mother was in and out of prison. She said: “I was passed from pillar to post, which resulted in my becoming dependent on drugs at the age of 13, just to get me through the day. This has been ongoing throughout my adult life. Looking back, I recognise that my mother had mental health issues and dependencies and received no support.” Holistic, trauma-informed support, including parenting education, is available in community interventions such as those provided by women’s centres, which is where the money needs to be channelled.

I have said before in this House that even if someone is utterly callous and cares little about the offender and their family, the financial aspects alone make no sense at all. The report, Counting the Cost of Maternal Imprisonment, published by Crest Advisory last week, states:

“Our research shows that interventions with children affected by maternal imprisonment were costing the taxpayer as much as £265,008 per family when the cost of the mother’s custodial sentence is taken into consideration.”

We must be better at seeing the whole picture, and considering the child’s rights here is the ultimate early intervention.

Sarah Beresford’s 2018 report for the Prison Reform Trust and Families Outside found:

“Every aspect of a child’s life is disrupted when a mother goes to prison”.

The report recommended introducing child impact assessments to ensure that children are listened to at every stage of their mother’s journey—arrest, court, imprisonment or community sentence, and on release—and that they are meaningfully and appropriately involved in decision-making about their care and any support needs they may have.

At this point, I want to mention the unborn child too. I am sure many noble Lords will be aware of the upsetting report published in September regarding the death of Baby A in HMP Bronzefield. The mother had not been sentenced; she was on remand. It is a tragic case and of course a complex one, but I stand with organisations such as Birth Companions, Level Up and Women in Prison in calling for an end to the imprisonment of pregnant women in all but the most exceptional circumstances. Through these amendments, we hope that sentencing judges will consider the real impact on the unborn child of imprisoning their mother.

In all this, I want to keep focused on the big picture, and communities and societies as a whole. That is surely vital if we are to keep victims of crime clearly in our view too. From the review by the noble Lord, Lord Farmer, into the importance of strengthening female offenders’ family and other relationships, published in 2019, we know that family ties are a factor in reducing reoffending, with benefits for society as a whole.

The Government’s own female offender strategy, published in 2018, acknowledged that:

“Custody results in significant disruptions to family life”

and that many women

“could be more successfully supported in the community, where reoffending outcomes are better.”

Indeed, it recognised

“the negative impacts on families of imprisoned mothers and the heightened risk of intergenerational offending”

and committed to rolling out the “Safeguarding Children When Sentencing Mothers” training material developed by the aforementioned Dr Minson, saying:

“This training raises awareness of the diverse implications of maternal imprisonment for children.”

So we can see that attempts have been made to reduce the impact on children, but they are not applied consistently. The Joint Committee on Human Rights found that, despite the Sentencing Council strengthening its guidance to judges and magistrates, evidence to the inquiry clearly indicated that the guidance was not being satisfactorily adhered to, and questions remain about whether these steps go fast or far enough to guarantee children’s rights.

We need to know the full picture but at present that is distinctly lacking. Joining up social services, whose primary responsibility is the welfare of the child, needs data. In 2019 Crest Advisory estimated that 17,000 children per year are affected by maternal imprisonment, but that is just an estimate. The Government do not know the true figure. In response to my Written Question in December last year inquiring how many women in prison are pregnant or are mothers with primary caring responsibilities, I was told:

“Pregnancy data is collected locally by individual prisons, to ensure the appropriate support can be provided to women in our care. Currently, there is no central collection of this data.”

So there is local data but no national picture. If we do not know where those pregnant mothers are, how can we adequately support them? I am aware of the argument that prisoners may not wish to disclose that they are parents for fear of social services’ involvement, but there must be a solution to this. I am heartened that in the same reply to my Written Question the Government said they were

“considering how to monitor and publish this information”.

I would be grateful for an update from the Minister in that regard.

In summing up, I reiterate that my view is not that primary carers should never be sentenced to a custodial sentence, but the Government must use the timely opportunity provided by this Bill to consider the big picture and ensure that the rights of children and the impact on their lives are brought to the fore. Doing that would of course also enable the Government to make progress on their own ambitions to radically reduce the number of women in prison, included in their female offender strategy and their national concordat on women in the criminal justice system as well as in the recommendations of the Farmer review on women. I ask noble Lords to support these amendments, and I beg to move.

My Lords, it is a pleasure and a privilege to follow the right reverend Prelate. My name comes after hers on this amendment, and I strongly support what she has said. This is a very important set of amendments and I really hope the Government will take the opportunity that they give. The right reverend Prelate is not saying that those who have primary caring responsibility, or where an unborn child is involved, would get a free pass in relation to the sentencing regime or the bail regime. She is saying, with these carefully thought-out amendments, that there have to be proper arrangements for the courts to take these matters into account and recognise that they are a significant factor in many cases in determining a sentence.

If I could just take the Committee through these amendments, Amendment 110 says that where a court is considering whether to grant bail to somebody—that is, somebody who is not convicted of any criminal offence—they should have regard to the impact of not granting bail on a child for whom the defendant is the primary carer, or an unborn child, and that the court should presume, subject to victim impact or other relevant considerations, that it is in the best interests of the child or unborn child for bail to be granted. The right reverend Prelate is saying, “Weight the scales in favour of granting bail where there is a child for whom the defendant is the primary carer, or there is an unborn child.” That is sensible and should be the approach anyway.

Coming to the right reverend Prelate’s four other amendments, Amendment 215, which comes after Clause 131, says that the court should be under an obligation, through pre-sentencing inquiries, to discover whether the defendant is a primary carer for a child. That is obviously sensible, and no court would want to be in ignorance of that should it be sentencing somebody who is a primary carer. Amendment 216 says that where the defendant is a primary carer, the court must give reasons as to how it has dealt with the issue of primary caring. Again, that seems to be common sense. Amendment 217 says that where a court is considering imposing a custodial sentence on a primary carer or a pregnant woman, it must consider the impact of a custodial sentence on the child or unborn child and presume it will be detrimental to them. Amendment 218 would make sure that proper data is collected so that the criminal justice system is aware of the extent to which primary carers are imprisoned.

These amendments would mean that the interests of the child of which the defendant is the primary carer, or an unborn child, have to be explicitly considered and they are a weight—in many cases, a very considerable weight—in the scales. If we put these amendments into the Bail Act 1976 or the Sentencing Act 2020, which is where the right reverend Prelate is proposing they go, it will have an impact on sentencing. It is not enough, and it is a complacent view, as the Human Rights Committee found, to say, “Don’t worry; the judge has already taken it into account, it is referred to in the sentencing guidelines.” The evidence before the Human Rights Committee is that that was not the case. Put it into the Sentencing Act, as these amendments propose, and we will find that it then becomes a much harder thing for a court to avoid; it should be thinking of the rights of the child of which the defendant is the primary carer, or an unborn child. This is a significant opportunity for the Committee to make this Bill better, and I strongly support the right reverend Prelate.

My Lords, the amendments in this group are about ensuring the best interests and welfare of the child. We must remember that children are those under 18, not just little ones. The arguments have been admirably set out by the right reverend Prelate the Bishop of Gloucester and my noble and learned friend Lord Falconer. It is an honour to follow them both.

I simply wish to emphasise some of the points from their arguments. Like my noble friend Lord Dubs, I am a member of the Joint Committee on Human Rights, which has considered this aspect of the Bill very carefully. Over many years, the committee has supported the rights and best interests of the child, as set out in the UN Convention on the Rights of the Child, ratified by the UK in 1992. The Joint Committee on Human Rights, in its report The Right to Family Life: Children whose Mothers Are in Prison, recalls that the JCHR has produced a number of reports on the right to family life, which is one of the articles of the UN convention.

It is clear that sentencing a person to prison affects not only their life but their family. Children should not suffer when a primary carer, so often a mother, is sent to prison. The committee also pointed out that children’s voices are not heard or listened to when their mother or primary carer is sentenced, despite case law and guidelines that should ensure that their best interests and welfare are considered. The Government have promised

“an ambitious programme of sentencing reform”.

I hope the Minister tells us that the impact on children will be at the forefront of that reform.

I am also a Member of the Parliamentary Assembly of the Council of Europe and I am working on a report focused on taking the voice of the child into account in matters which concern them—an issue relevant to this Bill and one that requires more attention when legislating for child welfare and the well-being of families. It is sad that the Government do not have adequate data on the number of mothers in prison who have dependent children or on how many children are separated from their mothers by their imprisonment. Could the Minister clarify this?

When the JCHR took evidence in 2019 for the report The Right to Family Life: Children whose Mothers Are in Prison, we heard from a girl who was 15 when her mother was sentenced to prison. She told us that she wanted the judge to reconsider her and her brother when their mother was sentenced. Our committee considered there to be a lack of awareness in the criminal courts of the impact on children of sentencing their mother—if only they had considered this case, and that the voice of the child is important. The welfare of children whose parents are sentenced must be put on a statutory footing.

The Youth Justice Board points out that a specific children’s rights impact assessment has not been published on this Bill, as has been said before. An assessment of this kind would surely help to highlight the unique position of children in society and to influence relevant clauses of the Bill. The Youth Justice Board’s full vision for a youth justice system is one that treats children with respect and care. Such a system would prioritise the best interests of children and recognise their needs, capacities and potential. It would promote children’s strength and capacities and would lead to safer communities and fewer victims. It would encourage children’s active participation in resolving problems and promote social inclusion.

An emphasis on a child-first approach would not only benefit children but contribute to social awareness. The Government speak of levelling up; instead, a lack of respect for children and their potential for building a better society is detrimental to this achievement and shows the negative side of a justice system that should treat people fairly and build on the positive, rather than the negative.

The Joint Committee on Human Rights made it clear in 2019 that, when the criminal court sentences a parent with a dependent child or children, Article 8 of the European Convention on Human Rights, on the right to respect for private and family life, is affected. Can we imagine the impact of this on a child? How must they view our justice system? How will it affect their growing up? The Joint Committee on Human Rights, in its first report on this Bill, concluded that the best interests of the children are not being sufficiently prioritised as a consideration when a parent is sentenced.

These amendments seek to require sentencing judges to consider the welfare of children when sentencing their primary carer. The new clauses reflect what should happen, but sadly often does not, in order to respect the rights of the child or consider their views when a primary carer is sentenced. The JCHR hopes that inclusion in statute will help ensure that the rights of these children will not be neglected in future.

This Bill is an opportunity the ensure that the best interests of the child are upheld when sentencing a primary carer and therefore influencing the well-being of the family. I strongly support these amendments.

My Lords, I have a brief point to make. I find a great deal of attraction in the thinking behind the new clause. It has great force and has been eloquently moved. But the question I ask myself is: if one is going to extend these provisions to the primary carer of children, what about others for whom the primary carer is in charge? What about the vulnerable, the educationally challenged, the disabled and the aged? Once you begin to accept that the interests of the primary carer for children should be addressed in the way contemplated by the new clause, there is a lot to be said for widening its scope so that it applies to primary carers across the spectrum.

My Lords, I rise very briefly to support the principle of these amendments. I warmly welcome what the Government are trying to do to roll back the use of prison for women. Everyone accepts that sending a woman to prison is generally something to be avoided at all costs. We need alternative provision as quickly as possible. However, we all know that this will take time. We have to deal with the situation in the interim.

In considering these amendments, I am acutely conscious of the burden that legislation is placing on the judiciary. One has only to read the Sentencing Code to realise what Parliament is actually doing to the judiciary in terms of complexity. However, what is important about the role of Parliament is to set out the principles. If I might try to answer the question raised by the noble Viscount, it is the interests of the child that we need to put at the heart of sentencing. We have put other interests there, but we need clearly to specify that one of the factors judges must take into account, whether on bail or in sentencing, is the interests of the child. Extensive work has been done in Wales and elsewhere: modern research shows that imprisoning a mother has a very serious effect.

I entirely accept what the noble and learned Lord is saying, but I am not sure I see the distinction in principle between having regard to the interests of a child—I accept that that is a very important consideration—and having regard to a vulnerable old person, or a person with serious educational disabilities. It seems to me that all of them are equally worthy of consideration in statute if you go down this particular road.

If I might attempt to answer the noble Viscount’s question, paramount importance is given to the interests of the child because evidence has shown that, where there is abuse of children and where mothers are imprisoned, you pass on criminality to a new generation. That is the distinguishing factor. I therefore very much hope that we can look at these amendments for the principle. I am possibly not as keen as others on the detail, for the reasons I have given, but we need to show that one of the fundamental principles of sentencing is to take into account, through the interests of the carer, the interests of the child.

My Lords, I agree entirely with my noble and learned friend who has just spoken that there is a principle here that needs to be considered rather than the granularity of these amendments. Indeed, I would say to the noble Viscount that, although we should try to achieve the protection of all people who are vulnerable, you cannot do everything at once. It is the whole of the life of the child in front of them that is affected if a parent is in prison.

The right reverend Prelate moved these amendments eloquently. I will say, very respectfully, that I think she omitted one or two key elements. These may lead one to the conclusion that we do not need quite complicated amendments but can achieve her aims, which I share, by a simpler method that is more evolutionary in its process. I might perhaps raise a couple of specifics. First, the information that the right reverend Prelate referred to is sometimes simply not before the court. That is because legal aid does not now provide solicitors with the earning potential—and it is not a high earning potential—to go out and investigate the reality of a child’s position. This means that the necessary information may not get in front of the court at all.

I had a conversation some time ago with somebody who was working as a manager of excluded primary school children in one of the London boroughs. She told me that she often rang the solicitors for 11 year-olds right at the top of the primary sector, or sometimes when they had just moved from the primary sector, to ask if they were aware of certain aspects of the child’s life—and they had no idea. They do not have the resources to make those inquiries. Furthermore, when cases come before the court, it is nowadays very rare in the Crown Court for a solicitor to be there instructing counsel in such cases, and, in the nature of the profession and the fees payable, counsel may have received the brief only the night before, and it may be a very junior counsel. These are the practical issues that judges encounter all the time.

I want also to say something about judges; I have a family interest in this, which I will not go into in great detail, despite the urgings of my noble and learned friend Lord Garnier. It is this: judges should be given credit for understanding the problems that the right reverend Prelate raised; she perhaps did not quite get there. Judges, many of whom are mothers themselves, hear these cases and understand perfectly well. They do not need a statute to tell them that it is not in the interests of a child for that child’s mother to be sent to prison .They do everything they can—on the basis of the information they are given, which may give rise to the real problem—to ensure that, if at all possible, a woman who has primary caring responsibility for a child is not sent to prison.

I apologise for interrupting. The right reverend Prelate’s Amendment 215 says:

“A court must make inquiries to establish whether the offender is a primary carer for a child”,

and, if those inquiries suggest that the defendant is a primary carer, then, according to the amendment, the court has to direct a pre-sentence report on the circumstances of the child. Does the noble Lord object to that burden on the courts?

I do not object to that burden on the courts, but I am surprised that it has to be placed upon the court. My view is that that sort of report should be part of the process when a young mother, for example, appears before the court. Mechanisms already exist that can ensure that such information is given. I am saying that we can achieve the same purpose more simply—for example, by the use of the Sentencing Council, if it is asked to concentrate on these issues.

I simply add this. The last statistics I have seen for women in prison, for 2020, show that 3.4% of prisoners are women. This is the lowest percentage it has ever been, and it is continuing to fall because the courts absolutely understand what those who tabled these worthy amendments are saying.

When the Minister replies, I hope he may be able to provide reassurance that the ends of these amendments will be achieved but in a more flexible way that can evolve over time, rather than by slightly clunky statutory provisions that, in my view, should not be necessary. Do we really need an Act of Parliament to ensure that courts give proper account to the paramount interests of children, which my noble and learned friend referred to a few moments ago?

My Lords, I rise to make a short contribution to fully and strongly support the amendments. I declare my interests in the register, particularly as a trustee and vice-chair of the Prison Reform Trust. I first compliment the opening address by the right reverend Prelate the Bishop of Gloucester and fully associate myself with the arguments she made in opening this debate.

I will briefly give some background to these amendments. Following the publication in 2009 of my independent report to government on mental health, learning disabilities and the criminal justice system, a programme to establish liaison and diversion services across the country was commenced. This has continued to this day, supported by all Governments, with 100% geographical coverage of the country now achieved.

These services are based in police stations and courts and are made up of multidisciplinary teams comprising mental health nurses, learning disability nurses, speech and language therapists and other disciplines working together with drug and alcohol staff to assess the needs of the arrested person to determine whether it is appropriate to divert them away from the criminal justice system, depending on the nature of the offence, or to help and support the police in determining whether they should be charged. If they are charged, this assessment information passes through to the courts and, in partnership with the court staff and probation staff, they try to ensure that a more comprehensive picture of the often complex needs of the individual is available in the magistrates’ courts and the Crown Court at first appearance.

However, one crucial piece of information that is not necessarily available—for a variety of reasons that we have already heard in this debate—is whether the offender, most often when it is a woman offender, is a primary carer. In January 2021, I asked a Parliamentary Written Question about

“how many children were taken into care because their mother was given a custodial sentence in each of the last five years”.

Extraordinarily, the answer was that the data requested is not something that Her Majesty’s Prison and Probation Service records. It went on to say:

“In practice, it is Local Authorities overseen by the Ministry for Housing, Communities and Local Government … who are responsible for delivering operational support to families on child safeguarding, including for children affected by parental imprisonment.”

It further stated that the Ministry of Justice

“acknowledges that parental separation due to imprisonment disproportionately affects women. Individual women’s prisons”—

I have visited all of them over the recent past—

“collect information on caring responsibilities at the point of reception”

into prison.

There are many problems with this reply, but it essentially confirms the siloing of the information on primary carers away from the criminal justice system, and that first knowledge of such caring responsibilities is at prison reception. That is simply too late, as the damage to the family is already in train; we know that about a third of women in the prison population are on remand, and that, on 2019 figures, 33% of women remanded by magistrates’ courts and 40% by Crown Courts, did not receive a custodial sentence. We also know that about 50% of women were sentenced as we have already heard this evening, to fewer than six months in prison. Surely, therefore, as this group of amendments makes clear, by collecting this information on whether the offender is a primary carer—predominantly women, but also sometimes men—and ensuring that the judiciary properly considers this information and the best interests of the child, the damage to the family that remand and short custodial sentences inflict can be mitigated against.

Each of these five amendments contributes to this outcome, particularly pre-sentence reports, but it is important to stress that it is essential that pre-sentence reports are available to the court for all offenders, as this is a primary means through which sentencers can be informed of dependent children. This is clearly not the case at the moment, but sentencing legislation directs that sentencers must obtain a pre-sentence report for all cases unless they deem it to be unnecessary and are transparent in that decision.

As the charity Women in Prison identified in its supplementary evidence to the Justice Select Committee, the evidence from Her Majesty’s Prison and Probation Service showed that there was a decline in pre-sentence report volumes over the past decade. For example:

“In 2010, pre-sentence reports were received for 62% of all court disposals reducing to 53% in 2018. Therefore, almost half (47%) of sentences which result in a custodial or community order have no new PSR prepared to inform the sentence.”


“There is a lack of data to disaggregate these figures according to gender and in answer to a parliamentary question in 2019, the Government could not say how many women in England and Wales had been imprisoned without a PSR.”

This is totally unacceptable. I hope that the new focus on this issue by the reconstituted national probation service will quickly achieve better results.

As a committed member of the Government’s advisory board on female offenders, I am pleased that the agreed strategy, which we have heard something about already today, includes strongly advocating for effective community sentences with continued investment in local women’s centres, as recommended by my noble friend Lady Corston in her groundbreaking report some years ago. Such an approach would help to ensure the successful completion of the community sentences and, crucially, would also ensure that children are not unnecessarily taken into care, that the primary carer does not lose their home or their employment, and that family responsibilities and commitments are protected.

I believe that the role of the liaison and diversion services can play a real part in helping to collect this information about primary carers, with agreed protocols on information sharing and confidentiality. Its timely presentation at first appearance in the courts will facilitate the reduction in the use of remand, the better use of bail and an increase in the use of community sentences, with the interests of the child and the role of the primary carer transparently considered by the judiciary. I therefore ask the Minister if he would clearly explain the Government’s position regarding primary carers and their children, and I urge the Minister to accept these invaluable amendments.

My Lords, it is a great pleasure to follow my fellow trustee of the Prison Reform Trust, the noble Lord, Lord Bradley. The whole House could agree with everything that he said. I thank the right reverend Prelate for introducing these amendments because, again, I do not think that they are, in their thrust, controversial at all.

I have stopped being a sentencer. I was a Crown Court recorder from 1998 until 2015, with a short gap when I was a Minister, and it became an increasingly difficult part of my judicial life. With the greatest respect to the noble and learned Lord, Lord Thomas, I suspect that he may once have been a recorder, but he spent most of his judicial life as a High Court judge, a Court of Appeal judge and the Lord Chief Justice. Essentially, when you get to that great height within the judicial system, you are dealing with life sentences and trying to work out the tariff that a murderer should get. You are not dealing with what a woman, probably in her late teens or early twenties, with a child should receive for her 10th offence of shoplifting—unless, of course, it came to the Court of Appeal Criminal Division. I have absolutely no doubt that the noble and learned Lord will have dealt with those sorts of cases on appeal with the attention, intellectual rigour and humanity that we would all have expected of him.

It may only be the noble Lord, Lord Carlile, and possibly the noble and learned Lord, Lord Falconer, who, like me, have sentenced what I might call “ordinary” criminals in the Crown Court. The noble Lord, Lord Carlile, is of course too modest to mention that his wife, Judge Levitt, now deals with these matters on a daily basis in the Crown Court. But one of the things that recorders and amateur judges like me, who perhaps do four or five weeks in a Crown Court during the course of a year, have to cope with is the sad people—be they men, women, young teenagers or adults—who come before us for repeated low-level but very annoying criminal offences, such as shoplifting in order to fund a drug habit and so forth.

The one thing that we were determined to do—I do not think that this is controversial—is not send people to prison when it would cause more damage than benefit, both to them, as individual defendants, and their children. Remarkably, the older teenagers and young people in their early twenties who had not just one but two or three children were our daily bread and butter, and we were anxious not to send them to prison if we could possibly help it because of the effect that it would have on their children.

I hugely thank two people, one of whom is in this Chamber, for their influence on my coming to understand the difficulties of sentencing and putting people in custody, particularly women. One was James Jones, the former Bishop of Liverpool, who was the right reverend Prelate’s predecessor but one—perhaps her immediate predecessor. The other is the noble Lord, Lord Ramsbotham, who, for me, is the source of information about the prison system. If you read his book about it, and the opening chapter, which concentrates on Holloway—now shut, thank God—you will begin to understand just a bit of the difficulties that amateur sentencers, magistrates and Crown Court recorders, but also the equivalent of Judge Levitt, have to cope with, day in, day out. These are anxious decisions about what to do with women and children whose offences are sufficient to cross the threshold for custody—but, if they are sentenced to prison, what collateral damage does that cause to others?

My noble friend Lord Hailsham is entirely right: when we think about this, we should of course think about others, such as those with learning difficulties or physical disabilities. However, the right reverend Prelate’s amendments and new clauses are about women, so let us think about them. Everything that she said in her introduction and that others have said in their remarks today is utterly uncontroversial. If you sit in a Crown Court in inner London, Manchester, Leeds, Bristol, Leicester or wherever it may be, the concerns that the right reverend Prelate and others have expressed are the very thoughts and concerns that we as sentencers have as we see a young woman with a child in the dock.

What do we do, in practical terms? The most important amendment that the right reverend Prelate has advanced is Amendment 218 on data collection in relation to primary carers. I am not an altogether—how shall I say it?—besotted fan of this Government, but there is one Minister in this House who deals with this subject in whom I have absolute trust: my noble friend Lord Wolfson of Tredegar, who is on the Front Bench today. I asked him an Oral Question some little while ago, shortly after he became a Minister and came into this House. He agreed with me that there was insufficient data collection in relation to the matters referred to in Amendment 218.

Because this Minister is on this Front Bench, I have absolutely no doubt that the Government know precisely what we are concerned about and I truly believe that the Minister shares our concerns. We need to encourage him to go back to his Secretary of State and officials in the department to say that this data needs collecting, because without it we cannot make proper or humane policy. Without it, we cannot inform our sentencers, either through the Sentencing Council guidelines, as the noble Lord, Lord Carlile, said, or in any other way, on how best to deal with women in particular and carers of children generally when they are before the courts.

As I said, when we sentenced these people, we all had these things in mind. We all anxiously studied the probation reports. We all worried that, in sentencing a mother or father with a child—a single parent—to custody, we were creating a form of orphanage, placing this child in public care. We know that the state is not as good a parent as the natural parent. If I may say so to the right reverend Prelate, I do not think we need legislation on this, but we need information and we need that to be available to judges, sentencers and, more importantly, Ministers, who can direct their officials to produce the humane solution that all of us require. I have absolutely no doubt that my noble friend the Minister is the person to do that for us.

My Lords, for two minutes, I want to throw a pebble into what seems like calm water. I totally support everything that the right reverend Prelate the Bishop of Gloucester has said. However, we need to ask ourselves: what is a child? If somebody talks to me socially and says, “Do you have any children?”, I say, “Yes, I have two.” They are grown-up men who flew the nest a long time ago.

However, adults with a learning disability are sometimes cared for by their parents, if they have chosen that the child should not go into care. Their family unit is mum and dad, who are in their 70s or 80s, and somebody with a learning difficulty who might be in their 50s. That is not what we think of as a nuclear family, but we still have to care for the child of those elderly parents, and when one parent dies there are all sorts of problems. Mencap has done a lot of work on this and I have worked with it on it. We really need to be careful about how we legislate for adults who have the mental capacity of a child.

My Lords, I am extremely grateful to the right reverend Prelate for not just these amendments but the care and time she gives to compassionate consideration of the criminal justice system generally. I am also grateful to the other authors of this group of amendments. We on these Benches fully support them.

In this House, we have repeatedly stressed the special needs of women in prison and the effect of custody on women and their children. I entirely take the point made by my noble friend Lady Jolly and the noble Viscount, Lord Hailsham, that there are others who are cared for who need our concern. In terms of legislation, we have achieved no more than lip service. These amendments would put that right by imposing real duties on courts and judges to gather the necessary information and consider the effect of custody on children in making bail and sentencing decisions for their primary carers.

Duties would be imposed on the Government to collect the data necessary to enable informed decision-making about the effect of imprisoning primary carers on the lives and futures of their children. I agree with the noble and learned Lord, Lord Garnier, that Amendment 218 on data collection could—and should—have gone further than requiring data on the number of prisoners as primary carers and the number and ages of the children affected. For example, it would be helpful to include data as to the arrangements made for looking after those children following the imprisonment of their primary carers. For instance, we should know how many children have to be taken into care, a point made by the noble Lord, Lord Bradley. We can and should consider that further on Report.

Noble Lords have had the benefit of the excellent briefing from the charity Women in Prison. The statistics it has collated tell a grim story. More than 53,000 children each year are affected by their primary carers being sent to prison and 95% of children whose mother is imprisoned are forced to leave home. One sentence encapsulated it all for me: “We’ve been sentenced,” says a mother, “but they’ve been sentenced with us.”

This point was at the heart of the opening speech of the right reverend Prelate the Bishop of Gloucester. Parental imprisonment is for children a well-recognised predictor of mental ill-health, poor educational attainment and employment prospects, and future criminality for the children concerned. It is often said that criminality runs in families. The noble and learned Lord, Lord Thomas, said that in answer to the noble Viscount, Lord Hailsham. The extent to which we fail the children of carers in the criminal justice system tends to make that a self-fulfilling prophecy.

The problem is made worse by the preponderance of short sentences among those passed on women offenders. Some 62% of sentences passed on women are for terms of six months or less, despite all the evidence that such sentences do far more harm than good, that offenders who receive short sentences are generally far more successfully rehabilitated with community sentences than with prison sentences, and that the damage to children of imprisoning their primary carer stems principally from the initial, sudden separation—the loss of home, the loss of parental care, the dramatic changes for children, that follow immediately on parental custody, often without any preparation or warning.

In the Joint Committee on Human Rights 2019 report on children whose mothers are in prison, the committee quoted the 2007 report of the noble Baroness, Lady Corston:

“[t]he effects on the … children every year whose mothers are sent to prison are … nothing short of catastrophic.”

The committee cited the evidence of a girl called Georgia of 15, who I think is the girl whose evidence was mentioned by the noble Baroness, Lady Massey of Darwen. She said:

“On the day of her trial, I was at home in the living room, dancing to MTV, and I got a phone call from my brother. He said, ‘Mum’s gone’. I thought he was joking. I had to ask him about five times. From being the young girl who was dancing in the living room, I automatically took on my mum’s role. I did not even have time to adjust to the custodial sentence. It just leaped.”

The amendments in this group rightly cover bail—that is Amendment 110—as well as sentencing decisions. The effect upon children of a remand in custody of their primary carer may be even worse than that of a prison sentence. It usually comes at the very beginning of the criminal process, often without any warning at all, and its effect is immediate, devastating, and of uncertain duration. Against that background, it is highly significant, and frankly shaming, that a very high proportion of women remanded in custody—66% of magistrates’ remands, a higher figure than that given by the noble Lord, Lord Bradley, and 39% of Crown Court remands—do not ultimately lead to a custodial sentence, largely invalidating the original remand decision. Amendment 110 would make bail more likely for primary carers, which would be a real benefit.

For sentencing courts, the duties proposed in Amendments 215 to 217 would lead to an immediate improvement in sentencing practice, as judges complied with these duties imposed by law in the interests of the children, as the noble and learned Lord, Lord Thomas of Cwmgiedd, stressed, where until now they have been subject only to non-binding sentencing guidelines, a point made by the noble and learned Lord, Lord Falconer of Thoroton. For that reason, I disagree with the point expressed by the noble Lord, Lord Carlile of Berriew, who questioned whether these amendments were necessary at all. I completely agree with the view expressed by the noble and learned Lord, Lord Garnier, that judges and recorders are hugely concerned not to send women who are primary carers for children to prison. But the fact remains that far too many primary carers do get sentenced to prison. I believe that over time, these amendments—because judges and recorders follow the law—would also lead to a general change of culture among the judiciary, and possibly in government as well, preventing courts sending primary carers of children to prison.

Before closing, I will add a word or two about sentencing pregnant women to prison. It is particularly welcome that Amendments 216 and 217 cover the special position of the unborn children of pregnant women facing custody. We have all been appalled by the report last month of Sue McAllister, the Prisons and Probations Ombudsman, into the death of Baby A in September 2019 at HM Prison Bronzefield, and the care of Baby A’s mother in the time leading up to and around her baby’s birth, when she was left alone in her cell—an account also mentioned by the right reverend Prelate. But it should be remembered that Baby A’s mother was described in that report as

“a vulnerable young woman with a complex history who found it difficult to trust people in authority.”

That description can be applied to the majority of pregnant women who find themselves in prison and, indeed, to the majority of young women prisoners. We should take care not to forget that, particularly given that three out of five women in prison have minor children. I urge the Government to respond positively to these amendments.

My Lords, perhaps I should first begin by apologising to the noble Lord, Lord Marks of Henley-on-Thames, for standing up at the same time as him. I am not sure whether I stood up too quickly or the noble Lord stood up too slowly, but we got there at the same time.

This group of new clauses relates to primary carers in the criminal justice system, and first I thank the right reverend Prelate and noble Lords for tabling these amendments. I know they were proposed in a recent legislative scrutiny report on the Bill by the Joint Committee on Human Rights, and this topic has been an area of interest to the Joint Committee during this and previous Parliaments. As set out during debates on the Bill in the other place, the Government support the principle behind these amendments. I hope, therefore, I will be able to provide to the House the reassurance that the noble Lord, Lord Carlile of Berriew, asked for. I can assure the noble and learned Lord, Lord Falconer of Thoroton, that we do take these points very seriously. More generally, I can assure the noble Baroness, Lady Massey, that when it comes to our sentencing reforms, we do consider the impact on children. However, the reason the Government do not propose to accept these amendments is that they do not consider them to be necessary, for reasons I will seek to explain.

When sentencing or considering the grant of bail to a defendant who is a primary carer of a child or who is pregnant, courts will consider principles established in relevant case law. There is a wealth of case law on this point. We have heard the contribution from the noble and learned Lord, Lord Thomas of Cwmgiedd, and I am reluctant to get into the details of criminal law in his presence. But it can perhaps be conveniently found in a case called R v Petherick in 2012—let me give the reference for Hansard: “EWCA Crim 2214”.

In that case, a single mother with a boy of 16 months was convicted—she pleaded guilty—of causing death by dangerous driving and driving with excess alcohol. The court set out nine points of specific and clear guidance—nine principles—which had to be taken into account with regard to sentencing. If I may summarise those in a sentence or two with no disrespect to the court, they make clear that the aims of custody have to be balanced against the effect that a sentence can have on others. That is the case both with regard to sentencing and with regard to pretrial detention. When I say, “on others,” this point is not limited to children, as a number of contributions to this debate have highlighted—particularly those from my noble friend Lord Hailsham, the noble Baroness, Lady Jolly, and, again, the noble and learned Lord, Lord Thomas. It does have broader application, and the court will obviously want to consider the effect of custody or pretrial detention on others who are dependent on the person who might go to prison. This is a point, therefore, with more general application.

I have talked about sentencing and remand in custody. When it comes to sentencing, the principles I have just set out, in broad terms, are reflected in detailed sentencing guidelines issued by the independent Sentencing Council. Courts are required by law to follow those guidelines, and the guidelines specify that being a “Sole or primary carer for dependent relatives” is a mitigating factor when sentencing an offender. The effect, therefore, is that the fact that the primary carer is such can tip the scales. What would otherwise have been a proportionate sentence if it was a sentence to custody can, if the person is a primary carer, become disproportionate. It can tip the scales.

As we heard from my noble and learned friend Lord Garnier, to whom I am grateful for his kind words, recorders and judges give—to use his word—anxious consideration as to whether a custodial sentence is required. Again, the position in law can be summarised like this: a custodial sentence can be imposed only where the court is satisfied that an offence, or combination of offences, is so serious that neither a fine alone nor a community sentence can be justified. Even where a court is of the opinion that the seriousness of an offence would ordinarily warrant a custodial sentence, it still has discretion to impose a community sentence after taking into account wider considerations. Community sentences are part of the important background to this debate. I think we will come to them later on in the Bill and I look forward to the thorough endorsement of the noble Lord, Lord Marks, of our proposals on community sentences, given what he said in this debate. That is the position with regard to sentencing.

On defendants awaiting trial, there is a general right to bail unless it is necessary for the protection of the public or the delivery of justice that the defendant be remanded in custody. A defendant accused of an imprisonable offence can be refused bail only where there is specific justification for that refusal, as specified in legislation. A number of noble Lords talked about the information which is available to the court about the personal circumstances of the defendant. The bail information report includes information about the direct effects on an individual and any dependants, should they be remanded in custody.

With regard to pre-sentence reports, which were also mentioned, guidance was introduced in 2019 for probation practitioners, in addition to the legislation already in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibilities for children or other dependants, and for those at risk of custody. An aide-memoire highlighting key areas for practitioners to consider when assessing the diverse needs of women in the context of offending was also issued in 2019 to assist probation practitioners to prepare those pre-sentence reports on women. We are currently running a pilot in 15 magistrates’ courts that specifically targets female offenders, as well as two other cohorts which have specific needs, for fuller written pre-sentence reports.

The noble and learned Lord, Lord Falconer, spoke about the importance of the courts giving reasons why they were refusing bail, for example, or sentencing somebody to custody. That duty is, with respect, unnecessary to impose on courts because they are already required by law to state in open court their reasons for deciding on a sentence. Moreover, where there are dependent children, sentencing guidelines, as I have said, require the courts to consider the impact on them at various points in the sentencing process. That is the effect of Section 52(1) and (2) of the Sentencing Code.

I turn to data, about which the noble Baroness, Lady Massey, my noble and learned friend Lord Garnier and the noble Lord, Lord Bradley, made points. I underline the point again from the Dispatch Box that data is critical. My noble and learned friend was very kind, but the fact is that I am quite keen on data. I am not the only person in the Government who is, but I certainly am.

I assure the noble Baroness, Lady Massey, that we have already committed to improving our work on data collection concerning primary carers in prison. That work is already under way. We already collect information on parental responsibilities but the current questions do not identify dependent children of primary carers using the correct definitions. We are therefore making changes to the questions to enable us to identify prisoners with primary carer responsibilities on their entry to prison, and to enable access to that information centrally—a point made, I think, by the right reverend Prelate.

We are already looking at how we can deliver our commitment to improve national data collection through changes to what is called the basic custody screening tool. That is completed shortly after somebody goes into prison and we want to capture more robust and reliable data on parental responsibilities. Responding to earlier reports from the Joint Committee, the Government have committed to collecting more data centrally and using that to inform policy and improve our services for prisoners with primary caring responsibilities.

The first report of the Joint Committee on Human Rights in 2021 details in section 2 the concern expressed by the committee in 2019 that there was no data about carers who were in prison. The Government gave an assurance that they would do something about it in 2019. The committee produced another report in 2020, saying “You’re still not collecting that material”, and a Minister gave another assurance. In 2021, the committee wrote a third report—this report, containing these suggestions—saying that none of the previous assurances has been complied with. Why should we accept the assurances the Minister is now giving in relation to the 2021 report, when all previous assurances given to that committee have not been complied with, as detailed by the committee in its report, and as the Ministry of Justice has not denied?

Work still has to be done, of course, but I hope that the noble and learned Lord will accept that we are doing more than we have done before. As I have tried to explain, we have put in place a process to identify what we need to collect and how we are going to do it. One must also take into account—the noble Lord who made this point will forgive me for not remembering who did so—that it can be difficult to get this information from people in prison. Some people do not want to provide information about dependent children and others who rely on them. I am not using that as an excuse, but one has to be alive to that point as part of the data collection service. All I can say to the noble and learned Lord is that I have this firmly in my sights. In this part of the criminal justice system, as, I would say, in others, data is really important and I am certainly focused on it.

I was going to make one other point on data, which I hope the noble and learned Lord will be pleased to hear. We will also consider not just the collection of data but what data can be published. It might be that not all data we collect can be published because of confidentiality issues, but we will certainly ensure that we publish what we can.

This is a separate point. Amendment 215 would require the court to

“make inquiries to establish whether the offender is a primary carer for a child”

and, if it discovers that the defendant is, to then order a pre-sentence report about the circumstances of that child and the impact. Is the Minister asserting that that provision is currently in the sentencing guidelines?

I hope I made that clear earlier; let me go back to my notes. I do not want to mislead the noble and learned Lord. As I understand it, the position is this: guidance was introduced in 2019 for probation practitioners, in addition to the legislation in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibility for children or dependants. The noble and learned Lord shakes his head—

I am not disputing what the Minister says, but I read him as saying that that position is not reflected in guidance. He is saying something different: that if somebody asks for an adjournment to make inquiries, one has to be granted. That is obviously different from the amendment.

I was going to come to the detail of pre-sentence reports a little later. Let me come to that and if the question is still alive, I will give way again.

I think I had completed what I was going to say about data, apart from one point. The right reverend Prelate asked about pregnancy data. In the time I have had available, I have been able to get the following response, but I am obviously happy to continue the conversation. In July this year, we published a national figure—for the first time, as I understand it—for self-declared pregnancies in the women’s estate and the total number of births that took place during the period in three categories: prisons, transit and hospital. That is found in the HMPPS Annual Digest. I do not know whether that has fully answered the question from the right reverend Prelate on specific data. If it has not, I am very happy to continue the discussion.

The noble Lord, Lord Carlile of Berriew, made a point which takes me to pre-sentence reports. He said that the critical thing is the information which the judge has when sentencing. The legislation as it currently stands asks the court to obtain a pre-sentence report in all cases unless the court deems it unnecessary. The Sentencing Act 2020 states that

“the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report.”

Therefore, anybody can identify the need for a pre-sentence report, whether it is the court duty officer, defence solicitor, legal adviser, the judge, or the Bench, but obviously, only the judge or the Bench can order one.

However, it may not always be required to get a pre-sentence report. For example, the guidance on pre-sentence reports recommends that where one has been completed within the last six months, that might be presented again with an oral update, to provide information on any change in circumstances and offence analysis. Where a pre-sentence report has been completed within a year, more detailed consideration would be required, given the time that has elapsed. We have committed to pursuing a target of 75% of all disposals receiving a pre-sentence report in the target operating model for the new model of probation. We are very alive to the fact that pre-sentence reports may be all the more important when talking about primary carers or other vulnerable groups.

I should not sit down without underlining a point that was made by the noble Lord, Lord Carlile, that judges at the sharp end should be given credit for understanding the position. It is fair to say—let me choose my words carefully; I do not wish to disrespect former judges—that there has been a revolution, a real sea change, in the judiciary. They really “get it” when it comes to female offenders and primary carers. This is one of the reasons why we have a low percentage of women in prison now which continues to fall. I suggest that it is not unconnected with a more diverse and better-trained judiciary. The judiciary should get a large measure of thanks for its work in this regard.

I conclude by returning to two points made by the right reverend Prelate. First, inconsistency in sentencing was put as a complaint. There must be a balance between sentencing appropriately in each case and sentencing within clear guidelines. There will be a range of sentences, and some inconsistency is not necessarily a bad thing. We do not want to get into a straitjacket of sentencing.

The right reverend Prelate also referred to an event which she hosted recently in the River Room, at which Chloe, a recent offender, spoke. I was at that event. Chloe’s speech was incredibly powerful. The right reverend Prelate used the word “Shalom”—meaning peace, because you make whole. It has another meaning which may be relevant in this context: it also means to pay, because when you pay, you complete a transaction. At the heart of this debate is balancing those two things: making the offender whole—rehabilitation—while recognising that there will be some cases where the offender must pay a debt to society that in some cases requires custody.

For those reasons, I hope that the right reverend Prelate will be persuaded to withdraw the amendment.

I am very grateful to all noble Lords who have spoken in this debate this afternoon; it is now getting on for this evening. I am very aware of time and where we are in this group of amendments. There have been some thoughtful contributions and plenty to think about.

We have talked a lot about what is, and about the numbers of women in prison, but we must look at the reality. There might be things which are theoretically there, but we still have so many primary carers in prison, and while the amendment is about primary carers, it is also about the rights of the child. We were in danger in our debate of not keeping the child at the centre. I have heard what people have said about other dependants. I take that on board, but it does not take away from us focusing on children and the long-term intergenerational impact. We could have a good theological discussion later, but I used “Shalom” because we cannot have any of this discussion without looking at the whole picture.

I have respect for all that has been said about judges and I give them credit for what I have heard in the very powerful speeches today. One problem is that there is not always enough information about what else is available. We will be talking about community sentencing another time, but I have had judges and magistrates say to me, “We don’t know exactly what is available in this area that could be offered to this person.” We must keep this all in the round.

Data has come up again and again, and that is crucial. I am grateful to all those who have talked about its importance. We have been talking about the number of women in prison and what happens at sentencing, but, with due respect, it is not happening. If it were, we would not have the number of women in prison that we have and the number of children who are being adversely impacted by this. We must be careful about the theory, what is happening and why it is happening. Therefore, data is really important.

We talked a lot about pre-sentencing reports. They are crucial, but it is not just about a pre-sentencing report—it is the information it contains. Again, we know that lots of primary carers, particularly mothers, do not always want to say that they are mothers. We must look at why that is. Again, it is that bigger picture—it is not just the PSR but the information it contains.

I do not want to replay all the arguments that we have heard, and I thank noble Lords. There is something I still want to hold on to about the rights of the child, and about inconsistency. I have heard what the Minister has said, yet that issue of inconsistency is really important because of the reality of what we have in our prisons at the moment and the number of children being impacted.

While I am willing to withdraw the amendment at this stage, I hope that there will be further discussion about the rights of children and all that we must do to continue achieving the aims of the Female Offender Strategy, which is not where we are in reality. I pay tribute to the noble and learned Lord, Lord Falconer, the noble Lord, Lord Dubs, and the noble Baroness, Lady Massey, for their support. We want further discussion going forward but for now, I beg leave to withdraw the amendment.

Amendment 110 withdrawn.

Schedule 4: Pre-charge bail

Amendment 110ZA

Moved by

110ZA: Schedule 4, page 205, line 42, at end insert—

“(1C) The constable must record the reasons for each determination including the assessment of each of the matters the subject of subsection (1B).”Member’s explanatory statement

This amendment, along with Lord Paddick‘s amendment to page 206 line 18, requires a custody officer to record case-specific reasons why it is necessary and/or proportionate to release a person on bail, including the reason for any conditions attached.

My Lords, in moving Amendment 110ZA in my name I will speak to my Amendments 110ZB, 110ZC and 110B and to Amendment 110A in the name of my noble friend Lady Harris of Richmond in this group.

We now come to pre-charge bail, also known as police bail, where the police need more time to investigate than the time limits for keeping someone in custody without charge allow. In 2017, in response to concerns that people were being kept on pre-charge bail for too long, particularly journalists under investigation as a result of the phone hacking scandal, the Government used 18 clauses of the Policing and Crime Act to severely curtail the time someone could be held on pre-charge bail.

At the time, briefed by police practitioners, we told the Government that their changes to police bail were unworkable and that they had gone too far the other way. Some 18 clauses of the Policing and Crime Act 2017 are now all but reversed, relegated to Schedule 4 to this Bill. There clearly needs to be a balance between the need for a thorough police investigation, diligently carried out within resource constraints—which, because of the significant cuts in police officer and police support staff numbers since 2010, have been considerable—and the adage that “justice delayed is justice denied”. The irony of telling the police to speed up their investigations while at the same time curtailing their ability to do so will not be lost on the Committee.

It must be necessary and proportionate for the police to release a person on bail, including the imposition of any conditions of that bail. I know from my own professional experience that custody officers tend to record something along the lines of “I am releasing this person on bail because it is necessary and proportionate to do so” or “because it is necessary to ensure that the person surrenders to custody” or whatever Section 30A of the Police and Criminal Evidence Act 1984 says may be a reason for releasing a person on bail. This is simply copied and pasted into the custody record. I was sitting here earlier reading that and realising that perhaps, as a police inspector reviewing detention, I might have been guilty of a similar act of simply copying generic paragraphs out of the Police and Criminal Evidence Act 1984.

This is not sufficient and Amendments 110ZA and 110ZB are designed to address this. The police officer should record the case-specific reasons why it is necessary and proportionate to bail the person and the case-specific reasons for imposing the conditions, if any, attached to the bail—not “to ensure the person surrenders to custody” but why the officer thinks this person is unlikely to surrender to custody; for example, because he has absconded in the past, perhaps. If the factors to be taken into account in paragraph 17 of Part 2 of Schedule 4 are included in the Police and Criminal Evidence Act 1984 in a new Section 30A(1B), so should be the requirement to say what it is about this person that makes release on bail necessary. Later in the Bill, in Clause 132(7), courts remanding children in custody will be required to set out their reasons for doing so in writing. This amendment requires the police to do the same when it comes to police bail decisions.

On Amendment 110ZC, following representations made by the Law Society—from my professional experience I see the merit in some and not others—I agree with it that the if the matter is straightforward, what is called in the legislation a “standard case”, a senior police officer should be able to extend bail only to a maximum of six months before the case is referred to a magistrates’ court for independent adjudication, rather than the nine months suggested in paragraph 29 of Schedule 4 to the Bill.

It is essential that these changes and their impact should be carefully monitored and adjusted if necessary. Amendment 110B would require each police force to publish annually the number of people released on pre-charge bail and those released without bail but “‘under investigation”. This would also enable HMICFRS to quickly and easily assess whether any force was out of alignment with others and where remedial action may be necessary.

My noble friend Lady Harris of Richmond has Amendment 110A in this group. The Police Superintendents’ Association quite rightly points out that if someone fails to surrender to police bail or fails to comply with the conditions imposed by the police, there is no sanction against the individual. I support this amendment in principle, although I believe there needs to be something in any amendment about the bail and any conditions imposed having to be necessary, proportionate and reasonable before an offence could be proved. I beg to move.

My Lords, my Amendment 110A is grouped with my noble friend’s amendments, as we have just heard, and is about bail principles. I bring it forward at the suggestion of the Police Superintendents’ Association and thank it for its help in doing so. In particular, I thank its president Paul Griffiths, with whom I have worked over a number of years, including on this issue in a previous police Bill; sadly, nothing has changed.

At the heart of every investigation is the requirement on police to collate, review and examine the evidence that is gathered. This should be without prejudice and the police are expected to pursue lines of inquiry that gather the facts, whether the facts support the victim’s account or that given by any suspect. For those investigations that require CPS authority, the information presented must allow the full-code test to be applied so that a decision can be made by the CPS as to whether or not the case progresses through the criminal justice system.

To ensure that the investigation is effective and efficient, it should be free from interference from factors that would seek to pervert the course of justice or cause a victim, witness or suspect to provide false evidence to the police, whether under duress or otherwise. The imposition of proportionate, appropriate, legal and necessary pre-charge police bail allows for the protection of the victim, suspect, witnesses and the general public, Correctly applied and checked, police bail is vital in ensuring that the investigation can progress fairly and comprehensively. It should be used only to protect and never to punish. Its imposition should be subject to appropriate review and audit procedures to ensure that the system is fair and maintains public confidence.

Currently, as we have heard, the breach of pre-charge police bail does not constitute a separate offence for the purposes of the PACE custody clock. If a person is arrested for breach of bail, the police will have to use the remaining time on the custody clock which relates to the substantive events for which they were bailed.

The current proposal in the Bill is that the custody clock will pause if a suspect is arrested for breaching police bail. In the majority of cases, the police will not be in a position to make a decision about whether that person on bail is charged for the offence for which they are on bail. The outcome is often release from custody with the same conditions, simply with a reiteration that the bail conditions should not be breached. Currently the police have less time to investigate the offence, and the risks to the investigation remain. The police would ask that any breach be regarded as a separate offence that can be charged on its own merit, if appropriate, using the established rules of evidence for offences.

Imposing pre-charge police bail can be significant in its impact on the human rights and liberty of a suspect and, as such, there must be a process that allows challenge and review. The primary decision-maker should always be the custody sergeant, as they are independent from the investigation. They are also responsible for the welfare and treatment of detainees, and they work on systems that allow for a clear and auditable rationale to be recorded and scrutinised.

The suspect and/or their legal adviser should always have the right to object to conditions, as they do with PACE reviews or extensions, and to have these objections noted on the record with the rationale clearly communicated. They should also have the conditions altered or amended if circumstances change, and that can be done in writing to a custody inspector. The suspect should always have the right to ask the courts to review bail conditions that they feel are inappropriate.

We have previously discussed appropriate authority levels for the time that a suspect remains on police bail. That should reflect the requirements of modern-day investigations such as forensic and e-forensic evidence.

I reiterate that pre-charge police bail should be imposed only where it is necessary and proportionate and protects individuals, the public and the investigation. Police should ensure that it is for the minimum time necessary to complete the investigation, that the rationale is clearly communicated to parties as appropriate and that an appeals process is in place—in addition, with a review process to ensure that the investigation is being carried out diligently.

My Lords, the two noble Lords who have spoken have fully introduced their amendments. Amendment 110ZC, from the noble Lord, Lord Paddick, would provide that a bail period could be extended only for a period of six months at a time, and not nine, so it would reduce the potential extension period before referral to a magistrates’ court.

I remind the Committee that I sit as a magistrate, and I occasionally do those hearings where I am asked to extend pre-charge bail. It is an interesting process for a magistrate because you see far more serious cases than you would in the normal course of events; it is the extremely serious cases where the police are looking for an extra period. They are often computer-based cases, in connection with child pornography-type offences. One common scenario that I see as a magistrate is that the police have made no progress in their investigations. That may be through a lack of resources or through them having other priorities, but, either way, there are often requests to extend the pre-charge bail period, sometimes for a matter of years, where the court or the magistrates making this decision are not given a particularly good reason. I would be interested to hear the Minister’s response to that amendment because it would inevitably put further pressure on the police to make progress on any individual case before it was brought to the magistrates’ court.

The noble Lord’s Amendments 110ZA and 110ZB would require custody officers to record case-specific reasons why bail and bail conditions were necessary and proportionate. I recognise the scenario that the noble Lord gave, of a cut-and-paste approach, and I would be interested in the Minister’s response to the points that he made. The final amendment in the name of the noble Lord, Lord Paddick, is Amendment 110B, requiring the police to publish annual statistics on the number of people released under pre-charge bail and the number released under investigation.

The noble Baroness, Lady Harris, spoke to her Amendment 110A, which would create an offence of breaking the conditions of pre-charge bail. It would supplement the powers of arrest available where conditions were broken, and the offence would be a summary offence. The noble Baroness went into some detail, which I thought was persuasive. She quoted the Police Superintendents’ Association, which said in evidence to the Commons Committee that

“bail conditions are imposed and then suspects continue to breach those bails. Of course, those bail conditions would be there to protect victims or even the wider public. It could be extremely useful to us for that to be an offence in its own right.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 31.]

This matter was raised in the House of Commons, where it was spoken to by my honourable friend Sarah Jones in the context of Kay’s law, a well-known domestic abuse case where an abusive partner killed Kay while he was on pre-charge bail. I will not rehearse the speech that Sarah Jones made but it was very powerful.

The Minister’s response to the request, which we see here in Amendment 110A by the noble Baroness, Lady Harris, was that she wanted to look at a wider review of civil orders that could potentially be put in place as well as greater data collection, rather than specifically making an additional criminal offence. It is interesting to note that the Centre for Women’s Justice came out with a specific proposal whereby a breach of a bail condition triggers the presumption that the police will impose a domestic abuse prevention notice and apply to court for a domestic abuse prevention order. Of course the breach of a DAPO would be a criminal offence, so it would effectively create a “two strikes and you’re out” process.

The Minister, Victoria Atkins, whom I have always found very helpful when I have spoken to her about these and related matters, spoke about reviewing a greater array of civil orders, such as a stalking protection order or sexual risk order. It would be helpful if the Minister could say how long that review is likely to take and whether we are going to get any proposals at later stages of the Bill. I acknowledge that there are a number of potential ways of closing this loophole and that the amendment put forward by the noble Baroness, Lady Harris, is a particular proposal and there is a wider context. However, there is an urgency to this issue. There is an opportunity in the Bill to address that lacuna, if I can put it like that, and I look forward to the Minister’s response.

My Lords, I thank noble Lords for their contributions. These amendments bring us to the issue of the reform of pre-charge bail. The intention of the Government with this set of changes is clear: to create a more effective and proportionate pre-charge bail system through “Kay’s law”, as referred to by the noble Lord, Lord Ponsonby. Kay’s law has been so named after Kay Richardson, who tragically lost her life at the hands of her estranged husband while he was released under investigation rather than on bail. It is clear that we need robust decision-making around the use of pre-charge bail in order to ensure that it is used fairly. This is why we have removed the presumption against bail and introduced the risk factors to be considered by the custody officer.

Let me first address the amendments in the name of the noble Lord, Lord Paddick. Amendments 110ZA and 110ZB relate to record-keeping for bail decisions. I certainly agree that there should be a clear audit trail to evidence how these decisions have been made. I do not, however, consider that it is necessary to legislate for this, given that it is an operational process, but it is our expectation that custody officers are already keeping records of how they came to their decisions as part of best practice within each force. I acknowledge that this may not be done with the consistency we would expect, which is why it would be more appropriate to include provision for this in the national statutory guidance on pre-charge bail, which is to be published by the College of Policing.

Amendment 110ZC is concerned with the timescales for the review of pre-charge bail. Again, I fully recognise that we must provide the correct balance here—the noble Lord, Lord Paddick, referred to balance in his opening remarks—between the rights of those who may have been victims of crime and those who, at this stage, have yet to be charged with an offence. The new timescales provided for in the Bill, which have been subject to public consultation and engagement with law enforcement, charities and victims’ services, strike a fair balance and will create a system that works better for all involved. That being the case, the Government are satisfied that nine months rather than six is the appropriate point at which decisions around the extension of pre-charge bail in standard cases should be referred to a magistrates’ court. I am grateful to the noble Lord, Lord Ponsonby, for sharing his personal experience on this subject. As he said, it will place further pressure on the police, but on the opposite side, it would potentially clog up the courts if referrals were brought forward. Following our consultation, we believe it is equitable for extensions up to nine months to be made by a senior police officer, and only then should the matter be referred to the courts.

Amendment 110B would require police forces to publish data annually on the number of individuals released on pre-charge bail and those released under investigation. We heard some powerful arguments from my noble friend Lord Wolfson about data in the previous group, and I am about to reiterate some of those, because we agree that accurate data is crucial in order to monitor the impact of these legislative changes and ensure that they are operating as intended. I am pleased to inform the noble Lord that the information he seeks is already collected by forces and published by the Home Office annually through the Police Powers and Procedures bulletin. Perhaps to anticipate a subsidiary question, statistics on the number of individuals released on pre-charge bail have been published yearly since 2017-18. The Government have recently amended this collection to include the number of people released under investigation. This information has been collected for 2020-21 and will be published later this year.

One might reasonably ask, since it has been four years since the last round of reforms, why we still do not know how many people are released under investigation. There are 43 forces across England and Wales, as the noble Lord well knows, which use different case management systems and data warehousing. We have been collecting data on the number of individuals on pre-charge bail since 2017, first on a voluntary and now on a mandatory basis, and we have also started collecting more data on pre-charge bail in terms of offence, breach, demographic and so on, and on released under investigation and voluntary attendance. This is voluntary collection at the moment, but we are working with police and systems providers where forces have been unable to provide data to enable reporting with the intention of changing to mandatory collection following the reforms as system updates allow.

Turning to quite a different matter, the noble Baroness, Lady Harris, has tabled Amendment 110A, and I acknowledge her long association with this subject. This would create a new criminal offence of breaching pre-charge bail conditions where a person is arrested elsewhere than at a police station and where there is no reasonable excuse to do so. It is essential that we keep in mind the safety and welfare of victims at this stage of the criminal justice system, as well as balancing this against the risk of criminalisation of individuals who have not been charged with an offence. Noble Lords will be aware that debate around the consequences of breaching these conditions has been ongoing for a number of years. While I understand those concerns, I cannot agree that such a criminal offence would be a proportionate response to this issue. Pre-charge bail is just that: pre-charge. There has been no charge or conviction against the individual as yet. It would therefore be disproportionate to criminalise the individual at this point, particularly where they may face a harsher sentence for the breach than the one carried by the offence for which they were originally arrested. Bail should not be punitive in nature according to the principle of the presumption of innocence.

On top of this, the Government do not currently have an accurate snapshot of the number of individuals who breach their conditions each year—I fear we are back to data again. Without knowing how many people this would affect, such an amendment could well lead to unintended consequences, criminalising a potentially large group of people and tying up the courts system. I stress that there is obviously no desire on the part of the Government to allow suspects to breach their conditions wantonly. Where there has been a breach, police officers will look to consider whether a substantive offence is established, such as intimidation or harassment in the first instance. In certain circumstances, as the noble Lord, Lord Ponsonby, alluded to, there is also the option of a court order, such as a sexual risk order or the new domestic abuse protection order, breach of which is a criminal offence in itself.

The Bill also introduces a three-hour pause on the detention clock where an individual has been arrested for breach of their conditions. This will allow the police further time for progressing the case, either through investigation of the breach or preparing a substantive case for charging. The Government have already made a commitment in the Commons to increase the data collection in this area, which will provide a more detailed understanding of this issue. It is my hope that this may yield a more proportionate, tailored and workable policy solution in the future.

The noble Lord, Lord Ponsonby, referred to Sarah Jones’s amendment in the other place and asked about the Minister’s consultation. I fear I do not know the answer to that; I will get back to him on when it may be expected to report. She also acknowledged that the collection of data around breaches of conditions to better understand the scale of the problem was part of the problem we have here. I think the Minister’s response was welcomed by his colleague Sarah Jones in the other place and she was content to withdraw her amendment. It has been helpful to explore these issues, but in the light of my explanations, I invite the noble Lord to withdraw his amendment.

My Lords, I thank my noble friend Lady Harris of Richmond for her support and for so clearly and powerfully explaining her Amendment 110A. Arresting somebody for breaching pre-charge bail where the only thing the police can do if somebody has breached the conditions is simply to re-bail them under the same conditions undermines the whole purpose of police bail—there is no sanction at all. The Minister said, “Well, the person has not been convicted of an offence and they could end up being convicted of breaching the bail but not of the original offence.” I may have been dreaming, but I seem to remember being at Highbury Corner Magistrates’ Court, albeit the stipendiary magistrate concerned was known colloquially as “Shotgun Maclean”, and his saying to an arresting officer that, unfortunately, in a not-guilty offensive weapon trial, the officer had failed to prove beyond reasonable doubt that the defendant was guilty of possessing an offensive weapon, but for breaching court bail—in that when they first appeared in court the person was released on court bail to reappear for the not guilty hearing—he would go to prison for three months.

There is the whole argument about this being disproportionate for somebody who is not convicted of a criminal offence if they were convicted of breaching bail, but it happens already when people who are innocent breach court bail. This seems to completely undermine the noble Lord’s argument. The point of Kay’s law is to stop dangerous people being released under investigation with no conditions attached. Without a sanction for breaching the conditions that are imposed, the conditions have no weight.

I am very grateful to the noble Lord, Lord Ponsonby of Shulbrede. Regarding the sort of cases he referred to, I would expect—particularly if analysis of computers was involved, for example—that these would not be standard cases and that the Crown Prosecution Service would designate them as such, so the six-month or nine-month limit would not apply. I am not sure that the cases he referred to were relevant to the examples I gave.

I accept that the Government have consulted on this, but I would go back to the Law Society, which is on the other side of the argument—including as it does defence solicitors—and feels that nine months in a standard, straightforward case not involving such things as computer analysis would be a long enough extension for a senior officer. However, we will reflect on what the Minister has said and, in the meantime, I beg leave to withdraw my amendment.

Amendment 110ZA withdrawn.

Amendments 110ZB and 110ZC not moved.

Amendment 110A

Tabled by

110A: Schedule 4, page 213, line 39, at end insert—

“35A After section 46A (power of arrest for failure to answer to police bail) insert—“46B Offence of breaking conditions of bail(1) If a person who has been released on bail under section 30A(1) breaks any of the conditions of their bail without reasonable excuse they are guilty of an offence. (2) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine or to both.(3) In any proceedings for an offence under subsection (1) a document purporting to be a copy of the notice given to the person under section 30B and to be duly certified to be a true copy of that part of the notice is evidence of the conditions imposed.(4) For the purposes of subsection (3) the copy of the notice is duly certified if it is certified by the custody officer who took the decision or a constable designated for the purpose by the officer in charge of the police station from which the person to whom the notice relates was released.””Member’s explanatory statement

This amendment would create an offence of breaking conditions of pre-charge bail. It supplements the powers of arrest available where conditions are broken. The offence would be a summary offence.

My Lords, I am immensely grateful to my noble friend Lord Paddick, who has absolutely perfectly put my case again, and to the Police Superintendents’ Association. I will reflect on what the Minister has said but I am really disappointed because we have been here before. However, the Home Office is going to get more data, which is a very good thing. I will put this to the Police Superintendents’ Association to see what it has to say, because it has been banging on about this for a very long time. In the meantime, I am not moving my amendment.

Amendments 110A and 110B not moved.

Schedule 4 agreed.

Clause 44 agreed.

Clause 45: Positions of trust

Amendment 111

Moved by

111: Clause 45, page 37, line 39, after “sport” insert “, dance, drama, music”

Member’s explanatory statement

This is a probing amendment to explore whether there is a potential gap in the law related to other teaching or supervisory positions of trust.

My Lords, in moving Amendment 111 I will speak to the related Amendment 112. Here, we are being asked to amend the Sexual Offences Act 2003 to import some definitions into it. This presents some problems, to my way of thinking. We are dealing with “Positions of trust” and people who abuse those positions, using them to abuse, exploit or manipulate young people to consent to sex. The clauses before us in this Bill refer to someone who

“coaches, teaches, trains, supervises … on a regular basis, in a sport or a religion”.

That immediately prompts the question: why are other activities involving coaching or training on a close one-to-one basis not listed in the way that sport and religion are?

I am probably happy to remain with the definition of positions of trust which is made by the courts and the public at large, rather than one which names particular instances, because I think we all understand what a position of trust is and what the abuse of it is. I recognise, however, that there is a potential gap in the law—which I will come to again in a moment—in cases involving the age group we are talking about, where it can be argued and perhaps even accepted by the victim that there was consent. When we are considering people in positions of trust which they might abuse to engineer sex with a person in this age group, it seems fairly obvious that sport and religion are not the only areas in which that situation will arise. There is music—the violin, piano or guitar teacher explaining to someone precisely how their fingering should be done and how to hold the instrument. There is ballet and dramas.

I must draw the Committee’s attention to a recent case—which, I make clear, was dealt with under existing law—involving a ballet instructor who was a principal dancer at the English National Ballet and who was jailed for nine years

“after leaving four students ‘haunted and humiliated’ when he used his ‘fame and prestige’ to sexually assault them.”

This is precisely what the Bill is trying to address, but it was dealt with under existing law as assault. The victims concerned were

“aged between 16 and 19 at the time, at the English National Ballet and Young Dancers Academy, in west London, where a dance studio was named after”

the person who carried out these assaults.

Ministers may say that other activities can be added by regulation to this legislation. There are regulatory powers included in the Bill. But it makes me wonder what would trigger such a statutory instrument, what criteria would be used by the Government and what evidence they would require to believe that they had to add these other areas, which they have not thought it necessary to include in the Bill. We are dealing, of course, with sexual activity which may otherwise be legal, in that it involves 16 and 17-year-olds and may have been on the basis of consent.

The Ministry of Justice had a review in 2019 and found strong evidence for extending the law to include those individuals who had influence or authority over 16 and 17-year-olds by virtue of the roles and activities they undertake within a sport or religious setting. But the review dealt only with abuse in sport or religion and took evidence or consulted on the basis of only those activities, even though the same situation can arise in individual music teaching, ballet teaching, or rehearsing and training in drama. All of those engaged in all such activities operate in a position of trust which can be abused. So, where is the difference? Ministers may argue that they can attend to these other areas later, but what happens if we get cases in the meantime where there is not available to the prosecution what would be available to them in cases involving sport or religion? I do not understand the logic of that, but I am sure the Minister will explain it to me. He may still have to do quite a bit to convince me we can separate out sport and religion without looking at these other areas.

My Lords, my noble friend Lord Beith is right to lay his Amendments 111 and 112 to the Bill, asking whether to restrict Clause 45 and the Sexual Offences Act 2003 to those listed in positions of trust, currently including sport and religious activities. He has explained why his amendments have specifically added dance, drama and music, and I entirely support his argument. I am afraid that, over the years, there have been too many examples of young people aged between 16 and 19 and even, frankly, in their mid-20s, who have been abused or coercively controlled by people with whom they have been working on various activities. My noble friend cited the example of dance; I am afraid the same is true of the music sector, where a lot of teaching is one to one and supervision has to be taken to some extent on trust. That means the structures of safeguarding and support to ensure that that position of trust is not abused need to be rigorous.

Formal sports activity, for one of my children, started as an after-school club. Some children were then selected by the same school coach for the county team. There were then journeys to county practices and preparations, and competitions across England. There are now too many examples of sexual abuse by gymnastics coaches and staff, which is why the Whyte review was commissioned. Its interim report was published earlier this year and I look forward to seeing the entire report because, frankly, this is a problem in sector after sector, within sport and elsewhere, and I am beginning to wonder whether we need a formal review on each one before action is taken.

But this is not just a sporting issue, or even one just for dance, drama and music. Another activity that is currently excluded is chess. An almost identical process to the gymnastics example that I gave earlier was in evidence at the same school of my children, starting at primary and continuing through 11 to 18 secondary school. It started as an after-school activity and progressed to competitions at county or national level. There was one gatekeeper—the coach—and nobody else. To be clear, I am not aware of any cases of abuse in chess in the UK, but that is not true in other countries, notably the US, where there have been some scandalous cases in Philadelphia, California and Florida, which read almost identically to those that we have seen in gymnastics and other sports in the UK.

The root of the problem, as outlined by the organisation Mandate Now, is:

“The sexual and physical abuse of a child, or neglect, is not a reportable offence in either England, Wales or Scotland despite child sexual abuse being a crime in all jurisdictions. Bullying, emotional or verbal abuse, like sexual abuse currently, can only be addressed by ‘guidance’ which is unenforceable.”

That is why protection for those in a position of trust is absolutely essential. As the noble Baroness, Lady Grey-Thompson, discovered in her excellent review of the duty of care in sport in 2017, if there are no structures to ensure that organisations—in this case, schools and the governing bodies of the activity concerned—can hold their people to account, abuse and coercive control can flourish undetected.

I have a question for the Minister. I am struggling to understand why only one or two activities are being added at a time. As I said earlier, will the Minister say whether it will take a formal independent review of each area of activity before it is understood that anyone in a position of trust with these young people needs to be regulated in the same way?

My Lords, this is slightly more complex than one might have thought. I thank the noble Lord, Lord Beith, for laying out the nonsensical way in which at the moment we exclude all the other categories. I do recognise the value of what the Government are trying to achieve in Clause 45: it is important that we stop predators from abusing positions of trust to prey on children and vulnerable people.

I also note, as no doubt the Minister will point us to, that this clause includes a Henry VIII power to add to or remove positions of power from the specified list. I normally loathe Henry VIII powers—I think they are extremely dangerous—but obviously I am weakening on this one.

It is also important not to cast the net of this offence too broadly or to define it too narrowly. I find it much more complex than when I first signed the amendment. There must be a level playing field, and a sports instructor should not be held to a higher standard or treated as a greater offender than, say, a dance tutor, because abuse of children is abuse and that is what we are trying to deal with here. I hope the Minister will work with your Lordships’ House to put together an amendment with which we are all happy.

My Lords, my task in this debate is easy: all I have to do is to support the noble Lord, Lord Beith, and say that I have rarely heard an amendment moved more comprehensively than he just did.

My Lords, we strongly support my noble friend Lord Beith. He has clearly explained his amendment: persons other than those mentioned in the Bill are in positions of trust. Although there is no evidence of widespread concern about instructors in dance, drama or music abusing their positions of trust, there are examples and fairly recent high-profile cases. My noble friend explains that either we should leave it to the courts to decide whether someone is in a position of trust or a more comprehensive list is required that is not limited, as my noble friend Lady Brinton said, to the examples in the amendments.

I agree with the noble Baroness, Lady Jones of Moulsecoomb, to some extent, although one could imagine that children are more vulnerable in certain scenarios and one-to-one situations than in others. But we support the amendments in the name of my noble friend Lord Beith.

My Lords, we too support these amendments, and I too found the introduction from the noble Lord, Lord Beith, to be comprehensive. The brief in front of me asks why some youth activities are included and others are not, which is the point the Minister will have to address when he winds up this brief debate. I will not repeat those points about why certain activities might be included and others might not, and I am sure that everyone who has spoken in this debate wants to achieve the same end, but there are different mechanisms to do that.

I agreed with the noble Baroness, Lady Jones of Moulsecoomb, who, as she said, somewhat unusually found herself in agreement with potentially using Henry VIII powers to amend legislation. While listening to this debate, I remembered the biography of a very famous English composer that I read recently, just a few months ago. He would fall foul of these regulations and would very likely go to jail on the basis of that biography.

I hope this problem is not widespread, but it is something that people are far more alert to these days than they were in the past. It is right that the Government should ensure that the appropriate structures are in place in each of the activities for which young people get support, so that, if things go wrong, the coaches or whoever is involved can be held to account in an appropriate way.

My Lords, I am grateful to have the opportunity to respond to this short but focused debate. I am particularly grateful to the noble Lord, Lord Beith, for the measured way in which he introduced the amendment, which raises difficult issues, as I think all speakers have recognised.

The Government’s aim in this area can be briefly stated. I understand there to be relatively little or perhaps no disagreement across the Committee on this point, certainly in the light of what the noble Lord, Lord Ponsonby of Shulbrede, has just said. The aim is this: we seek to protect children from those who might take advantage of their position to sexually abuse them. The provisions we put in the Bill followed detailed review and consideration. We feel they provide the best protection for young people while still balancing—this is a critical point—where possible their right to fully consensual sexual relationships. I must underline that point at the outset, because it is very easy to overlook it.

The positions of trust offences set out in the Sexual Offences Act 2003 were never intended to apply in all scenarios in which a person might have contact with or a supervisory role in respect of somebody aged under 18. If you do that, in effect you raise the age of consent by silence. If we are going to have a debate about the age of consent, let us have one—but let us not have an inadvertent, sub silentio raising of the age of consent by having too wide a category of positions of trust.

I acknowledge that this is a very complex area. With respect, the noble Baroness, Lady Jones, said that this was a first for her because she quite liked a Henry VIII power. I am not sure whether it is a first for me that I am agreeing with her from the Dispatch Box; I think I have done it once before, but if it is not the first time it certainly does not happen too often. But I do agree with her that this is a very complex area, because we are trying to strike the right balance between protecting young people and respecting the right of those aged 16 or over to engage in consensual sexual activity.

Therefore, although it is very tempting to say, “Well, there’s been a case here and a case there, let’s widen the definitions”, we have to act on the available evidence—not anecdote, supposition or a case here or there, but real evidence. The question therefore is, as I think the noble Lord, Lord Beith, put it, if I can summarise his speech in five words, “Why these and not others?” I heard him say that I am unlikely to persuade him. I remember when judges said that to me. I rarely did persuade them—but let me have a go anyway.

The answer is this: we have looked across the field. We have spoken to a whole load of stakeholders, which I will not read into the record, but the number is vast. We have concluded that those who teach, train, supervise, instruct or coach in a sport or religion are particularly influential over a child’s development. That is why they should be captured in the positions of trust provisions. The reason is that those settings allow for roles that involve very high levels of trust, influence, power and authority. Particularly in the case of those involved in a religion, the figures are often also well-established, trusted and respected in the local community. Both sport and religion provide a child—a young person, I should say, as this goes to 18—with a strong sense of belonging, whether to a team, a squad, a community or a faith group. As noble Lords will understand, deep feelings held by the young in respect of those groups can provide unique and special opportunities for predators to exploit or manipulate them.

Another factor that we have taken into account is that when we come to sport as usually understood—for present purposes I do not want to get into the question of whether chess is a sport; that is perhaps for another government department—the physical nature of that activity means that coaches have legitimate reasons physically to touch in perhaps a more general sense than just touching, in other words putting their hands around, moving, manipulating and repositing the body of the young person they are coaching. A sports coach therefore has far more opportunities for physical contact than other roles. This again can be manipulated by abusers.

The amendment focuses on drama and music as further settings. Again, I hope it is clear from what I have said so far that I absolutely understand the motivation for these amendments but, without strong evidence to support their inclusion, I respectfully suggest to the noble Lord that there is no reason to include drama and music and exclude other settings in which adults work with children. I underline the point that it was never the intention that all settings where adults interact with children would be engaged. I suggest that it is dangerous to say, “Because there’s been a case here or a case there, we should include them.” We heard from the noble Baroness, Lady Brinton, that there had been a case involving chess in the United States. “Does that mean that we include chess here?” I ask rhetorically. I suggest the answer is no.

I will make one point on ballet—I am not sure whether that is a sport, an art form or perhaps both—of which I am obviously fairly ignorant. On the inclusion of dance, I suggest to the noble Lord that our definition of sport in Clause 45 includes types of “physical recreation” engaged in for the purpose of “competition or display”. I consider that this definition of sport would include dance. That might deal with the ballet point specifically, although I accept that the noble Lord’s point goes wider than just ballet.

I think the noble Lord, Lord Paddick, accepted that, in a number of these cases, there is no hard evidence—but we do have isolated cases. As I hope I have explained, we are seeking to rely on what appears to us to be the available evidence. To pick up the question, “What evidence would make you include new categories?”, the only answer I can give is that we are not limiting the nature of the evidence that will make us happy to consider other categories. I do not want to limit or straitjacket the sort of evidence we might look at in advance. If we find that new evidence emerges that might justify legislating further, we will do so. That is why we have put the Henry VIII power into Clause 45, so that we can add further activities if it appears appropriate—I emphasise “appropriate”—in the light of new evidence.

To come back to my main point, what we seek to do is strike this balance between safeguarding young people and, on the other hand, protecting the rights given to them by Parliament to engage in sexual activity on a consensual basis once they have reached the age of 16. I fear I might not have persuaded the noble Lord, Lord Beith, of the correctness of the Government’s position, but I hope I have explained it to him. I none the less invite him to consider withdrawing his amendment.

My Lords, before my noble friend responds, I feel very uncomfortable at the proposition that we should wait for examples of problems in specific sectors before there are provisions to deal with them. I think I have said enough, actually.

I will reply very briefly to that point. When I say “new evidence”, I am not saying that there must be, God forbid, an incident. I am not circumscribing or limiting the nature of new evidence. If there is new evidence without there being an incident, we will look at that as well. I am certainly not saying that we will legislate only when, God forbid, there has been a terrible case. But one has to be careful. If one draws this net too widely, the effect is, sub silentio, to raise the age of consent. That was never the intention behind this provision.

My Lords, may I pursue that? What evidence are we talking about, then? We are all giving examples of where somebody in a position of trust might be by themselves with the person who trusts them. I do not follow what the evidence might be. I keep thinking of examples that have not yet been mentioned. Art lessons is another. I have been in an art lesson where the tutor has helped me to produce what I have ineptly tried to produce on a piece of paper. One could go on. What is “evidence” in this context?

The art lesson may be a good example. With respect, there is a huge gulf between the relationship of somebody to their art teacher, if they go to an art group, and the sort of intimacy that a physical sports coach has with somebody or the sort of power, control and sense of authority that a religious leader has over a young person.

I shall give one example of evidence, picking a made-up country from private international law. Let us say that, in Ruritania, there is a huge number of cases of a particular category. It might well then be said, “We can see there is a problem with this category. It has happened in Ruritania. The circumstances are the same as in the UK. You should add that.” That is just one example. I do not want to limit the evidence that we would rely on but, with respect, we cannot say that, because there has been a case in an art class or a case here and a case there, we will include all these categories. We should not include every circumstance in which adults have close contact with under 18 year-olds. I think the noble Lord, Lord Paddick, wants to come in.

I am grateful to the Minister for explaining the Government’s position but I do not understand the argument that we are surreptitiously changing the age of consent. If a 16 or 17 year-old wants to have a sexual relationship with their music teacher, they had better find another music teacher; the solution is quite simple. They should not continue in a professional relationship and have a sexual relationship at the same time.

With great respect, the point put to me by the noble Lord, Lord Paddick, shows that if we draw this too widely, we are limiting the ability of a 16 or 17 year-old to have a sexual relationship with that person. This the balance that we want to strike. At the moment, there is nothing to prevent a 17 year-old having a consensual relationship with a person with whom they have a tuition relationship or other kind of relationship. The question is: where do you draw the line? We say the line should be drawn at sport and religion. If you draw it too widely, you impact on that person’s ability to have a sexual relationship with other adults.

My Lords, I start by answering one of the Minister’s questions: what would constitute evidence? The answer is: the same kind of evidence that was sufficiently persuasive for the Government to include sport and religion in this definition. I would expect it to be on exactly that level, bearing in mind the context, the professional relationship and how it operated.

I start where I agree with the Minister. We are not seeking to change the age of consent in this legislation; it would be the wrong place to attempt such a thing, even if there were strong arguments for doing so. What should determine the position that the law provides in this area should not be the selection of certain sports because there appears to be more or less numerical evidence of abuse; nor should it be an attempt to import some new age of consent; it should be on the same basis, whichever area of activity we are talking about.

The Minister said something very interesting which will cause us to reflect between now and Report. He said that, in the Government’s view, dance—or ballet, at any rate—is included. There is a compelling argument for that, which is one of the reasons I was inspired to put down this amendment in the first place. This is a very physical activity during which people who are themselves very skilled at it have to explain—and sometimes demonstrate or assist those they are teaching—some quite extraordinarily physical things. That is done by hundreds and thousands of ballet teachers, and has been for many years, with total propriety, but it is a context in which abuse can occur. In that respect, as the Minister obviously realised, it resembles the kind of definition he brought to bear for sport.

I agree also that there is a balance between, on the one hand, defining a position of responsibility and placing responsibilities and limitations on someone who has such a position, and, on the other, interfering with the rights of 16 and 17 year-olds who have reached the age of consent. My noble friend Lord Paddick highlighted the difficulties in achieving that balance when he pointed out that we would hardly welcome a situation in which it was generally accepted as okay for someone in that kind of professional relationship to continue a sexual relationship when attention was drawn to it. We would mostly expect the professional person to believe that they had to end the relationship, even if it were entirely consensual.

We also have to recognise a dynamic in the situations that I have described, in which the kind of authority that the Minister attributed to people with a religious position of responsibility also applies to someone who has a powerful teaching role in a very close and physical activity. There is a dynamic. I make what might sound like a flippant point, but it is not entirely flippant: if the Minister has a look at “Strictly Come Dancing” one Saturday night he might begin to understand something of what I am talking about.

The Minister has failed to convince me, and I suspect some others in the House, that you can solve this problem by simply defining two areas where you think there is a particular problem and ignoring all the others. I do not want to load the arts world or the sporting world with a set of conditions that are not proportionate to the problem—or religion, for that matter, where I am an office-holder and would be subject to some of these provisions. I want sensible provisions that afford protection from the abuse of a professional relationship—something achieved quite readily in many contexts because the person concerned is part of an institution that has its own rules; but, in individual tuition, that may not be so.

The Minister has not persuaded us even that he has worked out a good basis for deciding when to use the Henry VIII power to add new responsibilities. At least, he has not given us a very clear picture; in fact, he has tended to imply that there are almost no circumstances in which that power might be used. This is a pretty unsatisfactory situation but the Minister has very sincerely addressed it and, indeed, widened the definition in the course of the debate. So, I think we have more to work on before Report. I beg leave to withdraw the amendment.

Amendment 111 withdrawn.

Amendment 112 not moved.

Clause 45 agreed.

Clause 46: Criminal damage to memorials: mode of trial

Amendment 113

Moved by

113: Clause 46, page 38, leave out lines 33 to 39.

Member’s explanatory statement

This amendment is intended to probe the proportionality of the inserted subsection in comparison to other offences.

My Lords, in moving Amendment 113 in my name I shall speak also to the other amendments in this group. I declare an interest as a Liberal Democrat and someone generally against sentence inflation, but I have specific points to make on this clause.

Clause 46 effectively increases the maximum penalty for “destroying or damaging” anything by fire, or for any offence involving damage to a memorial, which means something “erected or installed”, or

“a garden or any other thing planted or grown which has a commemorative purpose”,

whether it is the statue of a national hero or a slave trader, a person’s grave or a pet cemetery. The clause does this by removing the financial limit on when the case can be tried at, or sent to, the Crown Court for sentence. Magistrates’ courts cannot send someone to prison, I believe, for more than a maximum of 12 months, but a Crown Court judge can send someone to prison for criminal damage where there is no threat to life for a maximum of 10 years.

To put this into context, Clause 2 of this Bill, as drafted, increases the maximum penalty for assaulting an emergency worker from one year to two years, while this part of the Bill increases the penalty for damaging a memorial from one year to 10 years. It is clear where the Government’s priorities lie; it is more important to protect a statue of Churchill than it is to protect our brave men and women police officers.

It gets worse. New subsection (11B) of Section 22 of the Magistrates’ Courts Act 1980, inserted by Clause 46, includes

“any moveable thing (such as a bunch of flowers)”

left in or on a memorial, as part of the memorial—so, a maximum penalty of 10 years in prison for damaging a bunch of flowers. Pick up a bunch of flowers placed at the feet of Churchill’s statue and hit a police officer round the face with it, and you can get up to 10 years in prison for damaging the flowers but only two years for assaulting the police officer. Amendment 113 is designed to probe the proportionality of subsection (11B). Amendment 114 is consequential.

In fact, bearing in mind that the limit for a summary-only trial—at least in the original Bill, and I cannot find any amendment to it—is £200-worth of damage, to replace, repair or restore the property damaged, it is unlikely that anything other than minor superficial damage would be below this value. There may well be a case to treat graves as a special case, where it can be deeply distressing if the burial plot is disturbed, but, aside from that, I am yet to be convinced that Clause 46 should stand part of the Bill, at least in its current form.

There is far more merit in protecting the living, as Amendment 115 proposes to do, than in protecting the memorials of the dead. Damaging life-saving equipment is a very serious matter, and there is far more merit in this amendment than in Clause 46.

My Lords, I rise to support these amendments. We are now getting into the stuff that I will fight tooth and nail over. As an archaeologist and activist, I feel that I have a little bit of insight into this whole situation and perhaps into the ridiculous law that the Government are trying to introduce here. Instead of debating and discussing it and coming to a sensible resolution, this is part of a battle in a culture war, which is absolutely ludicrous.

History is important, but it is not fixed. People like to think that we all know what it is and it is in all the books, but, actually, as an archaeologist, I know that we reinterpret it all the time and are constantly making new discoveries. Just in the last week or so, we found Roman statues in a totally unexpected place. This is what happens: we change our minds about history and it gets rewritten.

The problem is that we have some very ugly history, which is littered with powerful and wealthy white men who, behind a thin veneer of toffish respectability, did some quite nasty things and were responsible for atrocities such as the enslavement of millions of people, genocides, war crimes and the grabbing of wealth from some of the many nations that we now call “developing nations”. Our statues ignore this history and pretend that it was benign and that these were good guys, which is simply not true: they were slavers and pillagers, and we ought to recognise that. Having their so-called heroism set in stone is actually quite offensive. There is no hint in many of these statues that they did some evil deeds.

People—many members of the public—do not like this, and they are showing their dissatisfaction with celebrating people who really should not be celebrated. They raped and pillaged, and the fact that they then spent a lot of money on universities, libraries or parks does not really make it all all right. So the question of what we should do with these monuments is important, but not easy. It should force us to confront the evils within our history and reflect on how they carry through to the social and economic conditions of our present.

Instead of leading on this quite important dialogue, the Government simply storm in with a new criminal offence, which I find so ludicrous that I feel I ought to go and speak directly to the Home Secretary about it. They are trying to put their fingers in their ears, sing “Rule Britannia” and pretend that all of this did not happen and that it was all okay—but it was not. Councils all over the country and the Government have to realise that statues are not something that we cannot change or remove. The fact is that some of these statues celebrate evil deeds, and the Government should recognise that.

I have more to say, if noble Lords wish.

I apologise for not standing up promptly—I was expecting the noble Baroness to say more. I will deal with two issues in relation to this group. First, I will deal with the points made by the noble Lord, Lord Paddick, in relation to what is in effect an increase in the penalty for certain sorts of criminal damage. We on this side completely understand that certain sorts of criminal damage—for example, to the gravestone of a much-revered and loved person—that cause very little financial damage nevertheless absolutely cut to the heart of a community or an individual. Our view is that it should be possible, in certain circumstances, for that to be dealt with somewhere other than a magistrates’ court.

This absolutely over-the-top provision is not necessary to ensure that something like that, which does merit a Crown Court trial, should be dealt with in the Crown Court. I would have thought that a much more targeted amendment could have dealt with that, but this, which deals with absolutely every sort of thing, is unnecessary. You do need a provision to make sure that protection is provided in relation to things that are deeply offensive, such as the desecration of a grave—but, beyond that, the law works, by and large.

I also agree that a lot of thought has gone into this, but there is practically nothing in the Bill—except for one or two increases in sentences for violence—that deals with the protection of women and girls. Instead, there has been this very complicated provision. But, as I say, we accept that it will be appropriate in certain cases to allow for a trial in the Crown Court.

Our Amendment 115, which comes after Clause 46, is designed to deal with a practical issue in relation to criminal damage: the effect of vandalism on safety equipment. This amendment was moved in the other place by Sarah Champion MP, and it reflects a campaign that has been run by Simon and Gaynor Haycock, whose son, Sam Haycock, went swimming in Ulley reservoir in Rotherham in May 2021, on the very day that he finished school, aged 16. He went to help a friend who was in trouble. At the reservoir, a throw line that has a safety belt on it, which you can throw into the water to try to assist someone, is behind a locked cupboard. You can access the throw line only by ringing 999 and getting a PIN number from the police in order to get the line out. The delay in getting the throw line out may well have had tragic consequences on this occasion. The reason that it is behind a locked door with a PIN number is because of the vandalism of safety equipment. I wonder whether the Government could spend their time focusing on something that has a practical effect, rather than engaging in rather divisive culture wars. I very much hope that the Minister will feel able to say something to help Simon and Gaynor Haycock in their campaign.

The amendment proposes that it is made a specific offence to intend

“to destroy or damage any property which is considered life-saving equipment, including life-belts, life jackets, or defibrillators.”

Of course, it would already be an offence to do that, but it matters a lot to indicate that this is something that the law regards with particular hostility because it costs lives, including the life of Sam Haycock. I very much hope that the Haycock family will hear good news from the Minister tonight.

My Lords, this group of amendments focuses on criminal damage and the need for Clause 46 to stand part of the Bill. Clause 46 addresses a sentencing limitation in the existing legislation to ensure that offenders who vandalise, attack or destroy memorials serve appropriate sentences that fit the severity of the crime.

The present position is this: where there has been criminal damage to a memorial and the value of that damage is less than £5,000, the court’s sentencing powers are limited in that the offence must be tried summarily and can attract a maximum penalty of only three months’ imprisonment or a fine of up to £2,500, which does not reflect in all cases the severity of the crime and the harm caused. We must remember that we are seeking here to provide a maximum sentence, not a mandatory sentence.

Clause 46 therefore removes this restriction by amending Section 22 of the Magistrates’ Courts Act 1980 so that where damage or desecration of a memorial occurs and amounts to an offence of criminal damage, the court will no longer be constrained in its sentencing options where the value of the damage involved in monetary terms is assessed to be less than £5,000. These are important changes that will ensure that courts can sentence appropriately, given the facts of the particular case.

I turn to the amendment from the noble Lord, Lord Paddick, to remove new subsection 11B from Clause 46(2) on criminal damage to memorials. New subsection 11B provides that moveable items such as flowers, flags or wreaths that are left in, on or perhaps adjacent to a memorial and—this is important—have

“(or can reasonably be assumed to have) a commemorative purpose”

will also

“be regarded as a memorial.”

It is important to recognise that items such as these, when placed at a structure such as a gravestone or—let us pick a topical example—the Cenotaph for the purpose of commemoration, albeit temporarily, should be covered by the clause. If someone goes to the Cenotaph, takes all the wreaths and chucks them around and destroys them, the fact that the value of those wreaths might amount to £4,683 ought not to prevent the court treating that offence with the severity with which I think everybody would regard it.

In the summer of 2020 there were attempts to set fire to the flag on the Cenotaph. The sentencing of those who burn the flag on the Cenotaph should not be limited by the value in monetary terms of the piece of fabric consumed by fire that is part of the memorial—ditto damaging a poppy wreath. The problem is that under the amendment that the noble Lord, Lord Paddick, wishes to make, those acts of vandalism and damage would not be covered as damage to a memorial. That is not right.

There are occasions when moveable objects such as these, when placed on a memorial, gravestone or similar structures, constitute the very essence of a memorial. A rose, when placed on the tomb of the unknown warrior, ceases to be—if I can put it this way, with apologies to Shakespeare—just a rose; it is something else. Those items should get the same protection as the memorial itself.

I therefore strongly disagree, respectfully, with the noble Baroness, Lady Jones of Moulsecoomb, when she says this is just about culture wars. It is not. Let me be absolutely clear: this Government have no problem with discussion, debate or challenge. If you want to say that Nelson was a great man or a terrible man; if you want to focus on Churchill’s successes in World War II or his actions in the Bengal famine, that is absolutely fine. What is beyond debate, I am afraid, and puts you into the proper realms of the criminal law, is defacing monuments.

Let us take an example from law. I did a little research, and it turns out that both the Grey of Gray’s Inn and the Lincoln of Lincoln’s Inn were leading advisers to Edward I, who in 1290 published the edict to expel the Jews from Britain. Does that mean I should go around defacing bits of Gray’s Inn or calling on Lincoln’s Inn to change its name? No. Because we recognise that these are matters for debate.

We can debate and discuss, but here we are talking about defacing monuments: criminal damage. That is not a debate on history. That is destroying the cultural fabric of this society. I heard the noble and learned Lord, Lord Falconer, say very deftly, if I may say so, that if it is a memorial to—I think I jotted this down correctly—“a much-revered and loved person”, that ought to perhaps go to the Crown Court and not the magistrates’ court. I respectfully suggest that a much-revered and loved person to one group of people is perhaps entirely the opposite to another; I do not agree that that is a workable basis for the law.

We have to say that the monuments we have are the monuments we have; they deserve protection. If we want to change a monument and have it pulled down, there are ways to do that. We can have a debate in your local council or a vote—it depends who the monument is being put up by—but we cannot have a right to deface monuments knowing that the protection given by the criminal law is too low in certain circumstances and, I suggest, extremely low in these circumstances.

The noble and learned Lord will forgive me if I do not respond in this debate to the point about violence against women and girls; we will debate that on many other occasions.

I now turn to the noble and learned Lord’s amendment about damaging or destroying life-saving equipment. I say at the outset that the case he outlined is extremely distressing and appalling. I hope I may be allowed to say that my sympathies and the Government’s of course go out to the family. The fact that it had to be locked with a PIN is, as I understand it, the genesis of his argument and what provoked the amendment. We therefore understand and agree on the intention behind the amendment. It is almost incomprehensible that anybody would damage or destroy obvious life-saving equipment.

While I understand the need for an effective deterrent, I respectfully suggest that the amendment will not have the desired effect, for the reason he almost touched on: it is already an offence to intentionally or recklessly damage or destroy property, including life-saving equipment, under the Criminal Damage Act 1971. The maximum penalty is 10 years’ imprisonment. Additionally, Section 1(2) of that Act goes further and makes specific provision for an aggravated offence of criminal damage where the defendant intends to endanger life or is reckless to such endangerment. That offence already attracts the possibility of life imprisonment.

If in this case it could be shown that the defendant intended to endanger life or was reckless, we already have a maximum potential sentence of life imprisonment. If that is not already proving an effective deterrent, perhaps the better course of action is for the various government departments responsible for water safety, health and safety and law enforcement to come together, see what is not working and identify working solutions.

It is very helpful of the Minister to tell us what the law is—accurately, I am sure. I do not think it is well known that if you damage life-saving equipment, you might be falling foul of Section 1(2) of the Criminal Damage Act—that is, you might be recklessly endangering life—because generally you will not intend to do that. That is why it is important to have a provision that makes it clear in the Bill, because most people do not have the benefit of the noble Lord, Lord Wolfson, to tell them what the law is.

It seems pretty obvious that if you get hauled before the courts for damaging life-saving equipment, you are going to be in deep trouble. What you do not know is what the penalties are.

We seem to be reaching a measure of agreement. I still say, with respect, that because we have that on the statute book at the moment, it is not appropriate to re-legislate in another place. I will take away the points put to me by the noble and learned Lord about more education and sign-posting, and clarifying and explaining to people what the law is. If people do not know what the law is in the Criminal Damage Act 1971, it is unlikely that they are going to be any more familiar with the Police, Crime, Sentencing and Courts Act 2021, as I hope it will be. If we have it in the law, however—and we do—with the reckless addition of a maximum sentence of life imprisonment, I suggest that that ought to be sufficient. On that basis, I invite the noble Lord not to proceed with the amendments. I hope that I have already responded to the amendment of the noble Lord, Lord Paddick.

My Lords, as usual, my noble friend has been very helpful, but what he has not convinced me about is why there is an increased deterrence value in having a maximum sentence of not, say, two years but one of seven years. I do not see why going to seven years is going to increase the deterrence value of the new offence.

The short answer to that is that I did not make my argument on the basis of deterrence. Sentencing encompasses a number of factors: there is deterrence; there is the actual punishment for the offence; there is marking society’s disapproval at what was done. I hope that I made my argument very clearly on the first two. I was not suggesting that people would necessarily be deterred; I hope that they will be, but that is not the main basis of my argument.

My Lords, I thank all noble Lords for taking part in this short debate, particularly the noble Baroness, Lady Jones of Moulsecoomb, for her support, albeit coming at the issue from a slightly different angle to the one from which I was coming. I also thank the noble and learned Lord, Lord Falconer, for picking up on what I said, which is that this needs to be more targeted. I specifically said that Clause 46 “as drafted” is not suitable. It needs to be much more accurately targeted; otherwise, it enables people to make the accusation that I did not make, that this is about dramatically increasing the penalty for what could be very minor damage to a statue of a very divisive figure. In fact, I made reference to the fact that doing anything to a grave, for example, could be deeply distressing and it may be that the penalty needs to be increased for that particular purpose. Clause 46, however, goes far too wide and draws those who feel that it is about culture wars into the argument, where that would not be the case if it were more far more tightly drawn; but at this stage, I beg leave to withdraw my amendment.

Amendment 113 withdrawn.

Amendment 114 not moved.

Clause 46 agreed.

Amendment 115 not moved.

Clause 47 agreed.

Schedule 5 agreed.

House resumed. Committee to begin again not before 8.28 pm.