Report (4th Day)
Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee, and 6th, 13th and 15th Reports from the Delegated Powers Committee
Clause 140: Secure 16 to 19 Academies
90A: Clause 140, page 130, line 22, at end insert—
“(8) A local authority may establish and maintain a secure 16 to 19 Academy.”Member’s explanatory statement
This amendment would enable local authorities to run secure 16 to 19 Academies, either alone or in consortia.
My Lords, the purpose of Amendment 90A in my name is to put beyond any doubt that an application to run a secure school by a local authority or local authorities, either working as an entity or acting in a consortium with others, will be treated on its merit, on the quality of the provision it proposes and can provide. In other words, there will be a level playing field for applications of this kind as for those from other, non-local government bodies. This amendment brings local authorities into the tent. It simply allows them to compete alongside other non-local authority organisations in order that the best provision will prevail, from whichever quarter it comes.
Since the debate on this matter, there have been discussions between the Minister, myself and other noble Lords from around the House and it is now clear that there is a legal route open to local authorities to make a bid for running a secure academy, but such a bid would run counter to the Government’s policy. I will return to this matter shortly, as it is fundamental to the rationale for this amendment.
I want to make it absolutely clear that we on these Benches support the proposal to create secure schools and academies. Youth custody, by its very nature, means that those within them are the most vulnerable and challenging young people. That is why Charlie Taylor, in his review, proposed secure schools as a major way of dealing with the problems of the youth custody system. It is worth remembering two points from his 2016 report. First:
“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”
“Rather than seeking to import education into youth prisons, schools must be created for detained children which bring together other essential services, and in which are then overlaid the necessary security arrangements.”
These two points reinforce the need for the highest quality provision possible.
Further to that second point in the Taylor point report, the absolute importance of integration was emphasised, not only of education but of a wide variety of services within the work of these schools—health, social care and services providing reintegration following custody are required within the school and not external to it. These are services that local authorities currently provide. Following the logic of local authority statutory provisions, particularly those of the duty of safeguarding and promoting the welfare of their children and the need for a new form of integration, there is much that local authorities can offer.
What is clear is that the skills and abilities of the heads and staff of these secure schools are fundamental. They need the best, and only the best will do. That is why this amendment is so important, because it ensures that local authorities are not excluded from providing secure schools, simply because of their nomenclature as academies.
The letter from the noble Lord the Minister to my noble friend Lord Marks makes two fundamental points: first,
“it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements”
with the Government; but, secondly,
“it is the policy of the Government that … no academy in England is operated by a local authority.”
The key issue here, then, is the use of the words “secure academy” rather than “secure school”. It is not a matter of who would be the best provider offering the very best and highest quality of education and integrated services outlined in the Taylor review and accepted by government. It is worth recalling that, when the Taylor review was published, the Government in a Ministerial Statement two days before the publication—which is quite interesting—referred to the setting up of two secure schools, one in the north and one in the south, and used the words “secure schools”. It is only in recent months that the word “academy” has moved into the nomenclature used for what was initially designed to be secure schools and was recognised by the Government as being secure schools.
Local authorities certainly have expertise in the provision required, but this amendment does not seek to favour them. It simply says that if they can produce the best provision needed, they should do the job. In doing so, they would have to follow all the frameworks set out by government, for example, on the devolution of decision making to the head, staff and governors. There would be no difference in the tender requirements, but these secure academies require the very best. To exclude a group of well-placed potential providers is a mistake.
As the noble Lord the Minister says in his letter to my noble friend Lord Marks, it is not a matter of the law but of the Government’s policy. That is why this amendment puts the matter beyond doubt. I and, I am sure, all noble Lords here will want the very best provision, from wherever it comes. I am not arguing that local authorities should win these bids, merely that they are given the chance to try. This legislation should provide the certainty that those who may be able to provide the best will not be left out. That is why I believe this amendment is important to put beyond doubt that all will be available and everyone can make a bid to run these services. I beg to move.
My Lords, I start by reminding the House that I sit as a magistrate in youth and family courts and, as such, send youths to secure accommodation for welfare reasons and as a result of offences they may have been convicted of in the youth court. To make it clear, the Labour Party supports Amendment 90A, which the noble Lord, Lord German, has just spoken to. My Amendments 90B to 90F look at a different aspect of secure accommodation.
The amendments in my name seek to address national shortage in secure accommodation by placing a duty on local authorities to assess the local need and create a strategy to deal with that need. In Committee, Peers from across the House highlighted the significant lack of secure beds in certain areas that leaves children being dispersed across the country, sent to unsuitable establishments or unnecessarily remanded in custody. The Government responded by saying that they are taking steps to support local authorities to maintain existing capacity and to expand welfare provision in secure children’s homes.
There are currently no secure children’s homes in London, with London children being placed in justice and welfare placements in secure accommodation an average 124 miles from home. This is disruptive for the children, their families and the services supporting them. There are other significant geographical gaps across the country. Currently there are only 15 secure children’s homes in England and Wales. This amendment places a statutory duty—a requirement—on relevant local authorities to address this issue.
Following the Government’s response to the amendment in Committee, the Mayor of London’s office stated that the reality of the £259 million referred to by the noble Lord, Lord Wolfson, is that it will take some time to translate this into available secure beds. This is especially true given that there is no indication of how that funding will be apportioned across the country to address the geographical gaps to which I have referred. There is also no commitment to ensuring that both welfare and justice placements are provided for within this funding. This is also a gap in the answer given by the noble Lord. Therefore, the additional funding does not remove the need for relevant local authorities to assess the need for secure accommodation and to develop a strategy for any shortfall.
In conclusion, I will repeat a statement given by Lord Justice Baker. This is the ruling on an appeal brought in July 2021 by Just for Kids Law against Waltham Forest Borough Council which successfully argued that the failure by local authorities in London to provide appropriate alternative accommodation for children was unlawful. He said:
“The absence of sufficient resources in such cases means that local authorities are frequently prevented from complying with their statutory obligations to meet the welfare needs of a cohort of vulnerable young people who are at the greatest risk of harm. The provision of such resources is, of course, expensive but the long-term costs of failing to make provision are invariably much greater. This is a problem which needs urgent attention by those responsible for the provision of resources in this area.”
If the noble Lord, Lord German, chooses to put his amendment to a vote, we shall support it. Nevertheless, I have raised other issues which I hope the Minister will respond to in his reply to this group of amendments.
My Lords, the aim of this exercise is to ensure that children who enter custody leave it better educated, better able to become part of normal working society and better able to function in a family environment. When Charlie Taylor produced his advice, which has already been mentioned, on the education of children in custody, his aims were exactly those: to ensure that the quality of education in custodial institutions, which currently is extremely variable, from the excellent to the terrible, should reach a good standard, comparable with that provided by decent schools around the country.
There is an issue about numbers. I would not like it to be taken that every local authority will be required to provide an educational provision for those children who come from that local authority. I know that is not what the noble Lord, Lord Ponsonby, with all his knowledge of this issue, is aiming at. There are well under 1,000 children in custody—significantly fewer than there used to be—which, after all, is the roll of a typical London comprehensive school as we speak. It would not be in the public interest to have a large number of academies for children in custody around the country because it would not be possible to supply the quality of education. However, as Charlie Taylor emphasised, we need the balance between having good schools or academies—whatever one calls them—for children in custody and local authority provision of the kind envisioned by the noble Lord, Lord Ponsonby, which ensures that they are kept in touch with their communities and their families and where they will probably go back to live after they leave custody.
It seems to me that, if all that is right, it is beyond argument that local authorities should be able to participate in this process without hindrance and establish educational institutions for those in custody, and that there should be as few obstacles in their way as possible. Once that is achieved, they will have to compete with everyone else who is in the area—that is perfectly sensible—but it would be wrong, for policy reasons that are, in my view, poorly conceived, to obstruct a legitimate role for local authorities.
My Lords, it is a pleasure to follow the noble Lord, Lord Carlile of Berriew. As some noble Lords will know, I spoke on issues relevant to this amendment at an earlier stage of the Bill.
In quoting the Taylor review, the noble Lord, Lord German, made the case for his Amendment 90A. It would be singularly inappropriate—I think this was the point made by the noble Lord, Lord Carlile—to debar all local authorities from setting up appropriate provision simply because of the use of the word “academy”. This is wrapped up with other aspects of educational policy. If the local authority is capable of providing what would manifestly be the best institution and provision for this group of young people, who need absolutely the best quality of education that can be afforded to them, it should do so. I take the view that the provision in Amendment 90A should categorically be in the Bill to ensure that we do not debar any local authority from engaging in the process to set up an institution. As has already been said, this does not require that local authorities should do it but it does not debar them; debarring them would be unreasonable.
My Lords, this group of amendments covers Part 9 of the Bill. I will cover the group in two parts, if I may.
Amendment 90A in the name of the noble Lord, Lord German, would allow local authorities to establish and maintain secure academies either alone or in consortia. The noble Lord kindly mentioned the sustained engagement that he has had with me and others on this matter; in turn, I acknowledge my gratitude to him for his time and commitment. As he mentioned, I wrote to him and the noble Lord, Lord Marks, outlining that, in our view, it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements directly with the Secretary of State, and that this is not prevented by the Academies Act. Therefore, as I set out in that letter, there is no legal bar to what the noble Lord wants to happen. I understand that, as he said, he wants to put the matter “beyond any doubt”, but I have explained in writing that there is no legal doubt on this point at all; indeed, I think I heard him accept this afternoon that it is “clear” there is no legal bar. I therefore say to him and the noble Baroness, Lady Blower, that there is no issue of being debarred here. I suggest that the amendment is therefore unnecessary.
I accept that the Government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision. We of course recognise, as the noble Lord, Lord Carlile of Berriew, noted, that local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here. I therefore suggest that the amendment must necessarily be unnecessary.
I now turn to Amendments 90B to 90F, in the name of the noble Lord, Lord Ponsonby of Shulbrede. Local authorities have a duty, under the Children Act 1989, to ensure sufficient, appropriate accommodation for all the children they look after and to ensure sufficient children’s homes for other children whose welfare requires it, whether or not they are looked-after children. I recognise that some local authorities have sometimes found it difficult to access the most appropriate accommodation, particularly for children with the most complex needs. It is right to say, both from the judgment of Lord Justice Baker, which was mentioned, and indeed from other judgments, that some of these children have extremely challenging and very complex needs. It is also the case that, sometimes, children are placed in locations away from home when they may be better served by a placement in their local area if one were available. We are looking carefully at that, not only in my department but in others as well.
We are taking significant steps to support local authorities to fulfil their statutory duty. We have started a programme of work this year to support local authorities to maintain existing capacity and to expand provision in secure children’s homes to ensure that children can live closer to home and in provision that best meets their needs. In the spending review we announced £259 million to continue this programme to maintain and expand capacity in both secure and open residential children’s homes. We acknowledge, as the noble Lord, Lord Ponsonby, said, that it may take—I will use the same phrase—some time to see all the benefits of that capital investment, particularly when you are talking about new builds, but it is the case that the capital programme will also result in increased capacity in the secure children’s home estate in the shorter term as we seek to create more beds through investment in a range of projects, including extensions of current buildings, refurbishments and rebuilds. I know that in the judgment referred to by the noble Lord, Lord Justice Baker used the phrase “urgent attention”, and that is what we are giving this problem.
Ofsted has also taken steps to support local authorities in this area. It has an amended process to make it easier for local authorities or other providers to apply for registration of children’s homes in emergency situations. It is also now easier to open and run a single-bed children’s home, which can be one of the most commonly needed types of accommodation when the child has very complex needs. It can be almost impossible, sometimes, to have more than one child in that location. Ofsted has now published guidance on these changes, and I hope that will help as well.
Before I sit down, I should also remind the House of two other relevant pieces of work ongoing in this area. First, the independent review of children’s social care, which commenced in March last year, is looking at this whole area in a fundamental way. Secondly, also in March last year, the Competition and Markets Authority launched a market study examining the lack of availability and increasing costs in children’s social care provision, including children’s homes and fostering. It has proposed a number of changes, of which I will not go into detail now, but they are important. We will look at the full reports when they come out. I expect both of those pieces of work to be serious and substantial reports.
I recognise the aims of all noble Lords who have supported these amendments; we all share the same aims here, but I suggest that we have existing statutory requirements and significant, wide-ranging and independent reviews under way, looking at the whole care system, alongside that CMA market study. For those reasons, I hope the noble Lord, Lord German, will withdraw his amendment and the noble Lord, Lord Ponsonby of Shulbrede, will not press his. I urge them to do so.
My Lords, I am deeply grateful to all who have contributed and to the Minister, who has not been able to go beyond the text of the letter that he sent to my noble friend Lord Marks. Although I understand that, it just reinforces the position that I outlined at the beginning.
To reiterate the point made by the noble Lord, Lord Carlile of Berriew, we are seeking the best, and to not leave out a potential bidder who could be one of the best is all that this amendment is about. It is simply to make sure beyond doubt. We understand that there is a legal route through this. I did not read out the exact words that the Minister repeated, but there is a route through—although he does say that it would place burdens on local authorities. Interestingly, and moreover, he said earlier that it also conflicts with the policy of academies.
The one thing the Minister did say, both in replying and in his letter, was that they will keep this issue under review. The problem with keeping something under review is that the process will already have started, and keeping it under review does not mean that there will necessarily be any changes or any scrutiny in this House.
The noble Lord said that there are two routes: the academy route, which local authorities will be excluded from, and secure family accommodation, which they want to encourage local government to do. Charlie Taylor’s review and report seek integration, not silos. It would be sensible to make sure that, at this point, there is absolutely no doubt. For the simple reason that we have to be able to search for the best and get the best, this amendment should be part of the Bill and not part of some future discussion—which may or may not produce a sensible outcome, as far as I am concerned. I am therefore minded to seek the view of the House on this matter.
Amendments 90B to 90F not moved.
Clause 141: Serious violence reduction orders
90G: Clause 141, page 131, line 27, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”
Member’s explanatory statement
This amendment would raise the threshold for the standard of proof required to impose an SVRO, from a civil standard (the balance of probabilities) to the criminal standard (beyond reasonable doubt).
My Lords, I rise to move Amendment 90G in my name, and to speak to some of the other amendments in the group—but, with the leave of the House, I shall not speak to all 23 of them. We now come to what the Government optimistically call “serious violence reduction orders”. These would allow the police to stop and search people without any suspicion that those targeted have anything on them that they should not legally have in their possession.
This is yet another form of stop and search without suspicion, which is notorious for three things. First, understandably, it is notoriously ineffective, even compared with stop and search based on suspicion. Secondly, it is, notoriously, disproportionately focused on black people, even compared with stop and search based on suspicion; and, as a consequence, it is notorious for the damage it causes to the relationship between the police and the communities they are supposed to help.
The Minister cited in Committee the fact that young black people are 24 times more likely to be victims of homicide than young white people. That is exactly why the police need to work together with those communities to build trust and confidence, and to demonstrate that they are on their side, and not using powers disproportionately against them, as these new powers, by the Government’s own admission, will continue to do.
It is not just me saying that disproportionate use of powers against certain communities—the very communities that need to work together with the police to tackle knife crime—is “undermining police legitimacy”. Those are the words of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. Serious violence reduction orders are likely to make serious violence worse, as they further alienate the very communities that the police need to co-operate with them to identify the perpetrators.
I was a sergeant in Brixton at the time of the Brixton riots in 1981; I was a chief inspector in Brixton 10 years later; and I was then the police commander in charge of Brixton 20 years later in 2001. In my professional judgment, serious violence reduction orders—in fact, any form of suspicionless stop and search—are counterproductive. That is why Amendment 101 would repeal Section 60 of the Criminal Justice and Public Order Act 1994. Only one in 100 Section 60 searches results in a weapon being found, and black people are 18 times more likely to be targeted by the police than white people—compared with nine times in the case of stop and search, where the police must justify their decision. I remind the House of what I said in Committee: Section 60 is not used at all in Northern Ireland for fear of the damage it would cause to police-community relations. It should not be used anywhere in the UK and should be repealed.
Amendments 90G and 90M follow the well-worn path that we on these Benches have consistently trodden, and where previous Governments have agreed with us. They realise the injustice, as we do, of allowing the breach of an order made on the balance of probabilities to be a criminal offence. When it was realised that ASBOs—the first of this kind of civil order with criminal sanctions—led to large numbers of people being criminalised, the then-Government changed course and replaced them with wholly civil orders and sanctions. The Minister in Committee cynically cited precedent for this approach, but it is an approach that we on these Benches have opposed every single time it has been proposed. Amendment 91C would also apply the higher standard of proof—beyond reasonable doubt—to renewals of SVROs. Amendment 90H, which I have signed, would disallow an SVRO being applied on the grounds that someone simply had a knife on them when an offence was committed.
The Minister’s quite extraordinary letter of 6 January tragically fails to answer my criticism, made in Committee, that someone who was carrying a knife lawfully and who did not use the knife in the commission of any offence could still be made the subject of an SVRO. The letter says:
“Whilst you are correct … this could include… where a person is caught unlawfully carrying a bladed article or offensive weapon.”
If they are caught unlawfully in possession of a bladed article or offensive weapon, they can be charged with that offence and then be made subject to an SVRO. Referring to the examples I gave—of a chef, an electrician or a Sikh in lawful possession of a knife—the letter goes on:
“In the examples outlined in the debate it would be difficult to see how a court might consider that an SVRO is necessary to protect the public.”
Is the Minster not aware of the Metropolitan Police gang matrix, where even innocent bystanders at a shooting were characterised as gang members? Any evidence, whether normally admissible in a criminal court or not—hearsay, gossip or rumour—can be given in support of an SVRO.
As the Minister has recently admitted, public trust in the police has been seriously undermined and distrust is even worse among the communities most seriously affected by knife crime. Allowing the police free rein to say whatever they want in support of an SVRO will make a rapidly deteriorating crisis of confidence in the police service even worse. Hence, Amendments 90N, 90P and 90Q would restore the standard of evidence used in the granting of SVROs to that which would have been admissible in the proceedings for the substantive offence. We also strongly support Amendments 90J, 90K and 90L but I will leave others to speak to them.
We have tabled Amendment 91A for the reasons that my noble friend Lord Marks of Henley-on-Thames gave in Committee. There needs to be a reasonable excuse defence for wrongly telling a police officer that they were not subject to an SVRO—something that the police officer could immediately check in any event. Amendment 91B removes the new offence of obstructing a constable in the execution of his duty in relation to SVROs as this is already covered by existing legislation. Amendment 91D limits the renewal of SVROs to a maximum of four years, allowing those subject to them to move on with their lives rather than being targeted and harassed by the police indefinitely, even if they commit no further offences.
Amendments 95A and 95B, to which I have added my name, would prevent SVROs being introduced beyond the pilot phase until a report on the pilot had been laid before Parliament and both Houses had agreed to its rollout. We need to be sure that these orders will not be counterproductive. Amendment 95C would strengthen the pilot; I am sure that the noble Baroness, Lady Meacher, will explain this further.
If the Government insist on proceeding with this dreadful measure, they should at least limit the damage until they are sure that it will not make matters worse. We support all the amendments in this group.
My Lords, I will speak to Amendments 90H and 90J, as well as 95A, 95B and 95C, but, before going into the arguments for those amendments, I express my strong support for Amendments 90G and, indeed, all the amendments in this group. I have such considerable concerns about the detrimental impact of these serious violence reduction orders that I believe that any way in which we can limit their detrimental consequence should be supported.
I begin by addressing why I hope the Government will make adjustments to the Bill in view of those considerable concerns—expressed not just by those of us in this House but by many organisations in the community, including Amnesty International—about the severe consequences of SVROs for so many innocent young people and the need to restrict these provisions appropriately.
As Ministers know, SVROs would expand stop and search powers to enable the police to stop and search someone whenever they are in a public place, without any suspicion of current wrongdoing, simply on the basis of a past conviction that may or may not be a knife offence. The purpose of Amendments 90H and 90J is to put right this apparently unintended wrong.
The Minister repeatedly stated in Committee that
“at the point at which … someone is issued with an SVRO, they will have been convicted by the court of a knife or offensive weapon offence”.—[Official Report, 17/11/21; cols. 310-311.]
However, the legislation as it stands makes it clear that an SVRO can be issued to individuals who have not been convicted of a knife or offensive weapon offence. New Clause 324A(3) clearly allows for an SVRO to be issued if the offender had
“a bladed article or offensive weapon with them”
or, under subsection (4)—this is in many ways much worse—if the offender
“knew or ought to have known”
that someone else had a knife. This could include someone convicted of shoplifting who happened to have a penknife in their pocket. It could also—this is really important, and I hope that the Minister will respond—include people in abusive and coercive relationships, who may have known or, according to the Bill, should have known that their abuser had a knife.
Will the Minister say whether she believes that individuals involved in these ways should be regarded as having committed a knife crime and therefore liable to have an SVRO imposed? I feel quite certain—because I know the Minister and know that she has great integrity—that she will not want these people to find themselves caught up with an SVRO.
There are many reasons to amend the Bill as proposed in Amendments 90H and 90J. First, as Agenda has said, the proposed terms of an SVRO render invisible the impact of coercion in relationships experienced by many young women drawn into the criminal justice system or at risk of criminal exploitation. Ministers need to take account of a study by Metropolitan University and JENGbA which examined 109 joint enterprise cases involving women and girls, the majority of whom had convictions for serious violent offences. The study found that none of the women involved had used a deadly weapon and in 90% of cases they did not engage in violence at all. In half the cases, the women were not even present at the scene. Perhaps the Minister can comment on this study and its implications for Amendments 90H and 90J. We are simply asking the Government to adjust the Bill to bring it into line with the Conservative Party manifesto, which makes clear the aim to make
“it easier for officers to stop and search those convicted of knife crime.”
The removal of new Clause 342A (3)(b) and (4) would achieve this alignment, and I hope the Government may be willing to do that. As Minister knows, the College of Policing has expressed its concerns that the use of stop and search without an intelligence-led approach is unlikely to reduce crime.
In addition, there is no evidence to suggest that SVROs will be effective in reducing knife crime. This point brings me on to the other amendments I have tabled in this group—Amendments 95A, 95B and 95C— which focus on the need for the pilot of SVROs to be comprehensive and meaningful. Amendments 95A and 95B require a vote by both Houses. It is crucial to have this democratic control before these SVROs are introduced. This must happen under these amendments before SVROs can be commenced.
Amendment 95C strengthens the pilot to ensure that key issues are examined. A key reason why these amendments are vital is the experience of a pilot into the relaxation of the best use of stop and search safeguards. The rollout of these changes was announced by the May Government prior to the publication of the evidence arising from the pilot. The Government were forced into a U-turn by a legal action, but they have continued to refuse to publish the evidence on the grounds that they need a safe place in which to discuss changes. Are we going to be up against this sort of argument in this context? Amendments 95A and 95B would ensure publication of the evidence and parliamentary scrutiny before SVROs could be rolled out.
We know that the proposed new measures pose significant human rights impacts, as the noble Lord, Lord Paddick, pointed out. Black people are 18 times more likely to be stopped and searched than white people. They do not commit these crimes 18 times more than white people. Also, only 4% of stops find a weapon. The pilot will need to show that SVROs meet their stated aims of breaking the cycle of offending and protecting our communities from harm. The pilot also needs to analyse the effect upon others who will be severely affected by SVROs as the Bill stands—for example, exploited women. It is for them, in particular, that SVROs must not be applicable to people who knew or ought to have known that someone else had a knife. I am sure the Government do not wish to bring these women into the criminal justice system, as others have already said.
Amendments 95A and 95B are hugely important because they ensure that SVROs can be introduced only if Parliament is satisfied on the basis of the evidence from the pilot that they will reduce serious violent crime and that the consequences for the human rights of individuals and communities are proportionate and justified.
It is not sufficient that the report on the pilot will be laid before Parliament, as is specified in the Bill as it stands. Suppose the pilot reveals that SVROs fail to stem serious violence and breach individuals’ human rights in unacceptable ways. Clearly, SVROs should not be rolled out in that context. Yet Parliament will have no power to achieve that objective unless Amendments 95A and 95B are agreed to. These amendments deal with the concerns expressed by the Secondary Legislation Scrutiny Committee about the absence of adequate evidence and other supporting information to underpin the proposed policy changes.
I look forward to the Minister’s response and urge them to strengthen the democratic process underlying the potential rollout of SVROs. However, if the Minister cannot reassure the House about Parliament’s role in relation to the pilot, I will want to test the opinion of the House—and this has changed—on Amendment 95A, rather than Amendment 95B. If successful, Amendment 95B would become consequential. These two amendments are very much interlinked and you could say it is arbitrary which one we vote on. To explain, if the Minister cannot satisfy the House, we will have to test the opinion of the House.
As a Green, I am very concerned about the Government undermining the doctrine that police on these islands gain their authority from the consent of the governed. Overuse of stop and search powers has deeply undermined community consent in many areas of the country. We worry all the time about the police being constantly distrusted. That is no wonder, especially with a measure such as this. There are racial and socioeconomic disparities in who gets targeted by the police—we cannot avoid that. These government severe violence reduction orders will create, as the noble Lord, Lord Paddick, has said, a new suspicionless stop and search power, and once a person is issued with one of these orders they could face unlimited interference from police officers. We have to ask: is this the sort of measure that will bring those offenders back into society or will it turn them further away?
The Greens will support any amendments that improve this system of serious violence reduction orders, in particular Amendments 95B or 95A—whichever amendment tabled by the noble Baroness, Lady Meacher, comes up for a vote. That the reports from a pilot project are approved by Parliament before these orders can be deployed more broadly seems to me to be common sense. Why on earth would they be brought in before they have been measured? It is essential that the Government prove the efficacy of these measures and demonstrate that they are not being used in a way that is racially or otherwise discriminatory.
I particularly support Amendment 101 from the noble Lord, Lord Paddick, which would repeal the existing powers of suspicionless stop and search. There should not be a power for the police to search without reasonable suspicion.
My Lords, I support Amendments 90H, 90J, 95A, 95B and 95C, to which I have added my name. I also signal my support for other amendments in this group which also seek to control more tightly how serious violence reduction orders will operate. I draw your Lordships’ attention to my work on policing ethics, both for Greater Manchester Police and for the National Police Chiefs’ Council, as set out in the register of interests.
As the noble Baroness, Lady Meacher, has indicated, Amendment 90H seeks to ensure that an SVRO can be applied only when a bladed article or offensive weapon is used to commit an offence, not simply when such an item happens to be present and in the possession of the defendant. As the noble Lord, Lord Paddick, has indicated, as presently drafted, the Bill requires no substantive link between the weapon and the offence. An individual could, for example, commit a road traffic offence while driving home from a church picnic, with their used cutlery on the passenger seat next to them, and the prosecution could ask for an SVRO.
I can see that subsection (5) of the proposed new chapter is intended to mitigate that by requiring the court to consider that imposition of the order is necessary to protect the public or the defendant from possible future offences involving such weapons. However, I do not believe it adequately achieves that objective. Asking a court to conject what might happen in the future can all too easily invite decisions taken on discriminatory or flimsy grounds, especially as no court would wish to face public criticism for having failed to apply an SVRO should later violence occur. To legislate for future conjecture requires a robust link to what has already happened. Subsection (3)(a) gives that; it requires that the weapon was used by the defendant in committing the offence in question. Deleting subsection (3)(b), as this amendment seeks to do, would ensure that any order is based on genuine and evidenced risk. To put it bluntly, it would pass my church picnic test.
Amendment 90J, if I may turn to that, seeks to more closely tie the order to the offence by limiting it to the actual person who used or had possession of the weapon, not some putative third party who
“knew or ought to have known”
that they had it. The de facto joint enterprise element in the current drafting of this clause widens the net substantially for who can be affected, and includes people not convicted of knife crime. As the noble Baroness, Lady Meacher, has just said, this is likely to disproportionately affect women and girls, who may well know or suspect that a partner or family member may be carrying a weapon but are far too vulnerable to be able to extricate themselves from a situation where violence involving such weapons may be committed by others.
I understand that the intention may be to provide such vulnerable adults with an excuse to stay away from both people and situations with which violence may be associated, but when I try to put myself in the position of such a person, I cannot really imagine saying to my partner or brother: “Oh, I must not be near you when you have a knife because I might get an SVRO against me.” I think these people are far too vulnerable. I hope I have persuaded your Lordships that Amendment 90J will address this deficit.
Finally, on Amendment 90J, apart from it being grossly unfair by ignoring the impact on vulnerable people, subsection (4) appears to be unworkable. How will the court determine if someone “ought to have known” that some other person had a knife? The amendments in the name of the noble Baroness, Lady Armstrong, tease out this point specifically. I will leave others to speak to them at greater length, but if our own Amendment 90J does not win your Lordships’ support, I would hope that her amendments are more persuasive.
I now turn to Amendments 95A, 95B and 95C on the pilot scheme. In order to understand how SVROs operate in practice, these are entirely welcome. SVROs present a major innovation. There are significant risks of dangers from unexpected consequences—dangers that may outweigh any good that SVROs achieve. If we are to roll them out across the country, we need to have confidence that they are doing the job intended and making things better and not worse. For all the eloquence of our arguments in this House, there is nothing quite like having real, practical experience on the ground to draw on if we are going to get things right. These three amendments, taken together, simply seek to strengthen the pilot; to make it a genuine gathering of all the most relevant evidence, and one that will feed into a proper decision-making process here in Parliament, ahead of SVROs being rolled out across the nation.
In my early days as Bishop of Manchester, we had an idea of how we might make better and more locally informed decisions on where we deployed our vicars. We set up a two-year pilot across about a fifth of our dioceses. Towards the end of that period, we commissioned an independent evaluation by outside experts. We learned a huge amount from the exercise, and, in consequence, we never rolled out the substantive project. We did something different; we did something better. A pilot has to have the capacity to substantially implement the eventual shape of whatever is the final product, otherwise it is simply window dressing.
It is clear from speeches already made here today that there is considerable uncertainty about SVROs. In particular, noble Lords have drawn attention to the danger that they become associated with disproportionality and hence diminish confidence in policing and the courts. None of us wants that. We noted the risk that, rather than prevent criminalisation, they may draw more vulnerable people—especially young women—into the criminal justice system. We have remarked that extensive use of stop and search powers, especially in the absence of specific evidence of intention to offend, has over and again proved counterproductive. These last three amendments cover both the process and the content of the pilot evaluation. They will make for much better decisions on how and when, and perhaps most crucially if, SVROs are rolled out across the nation. I hope the Minister will be minded to accept them or to meet us to find an agreed way forward.
My Lords, I wonder whether I could ask the Minister a question about her amendments to Clause 141. This takes forward to one point of detail the comments made by other noble Lords about targeting particular groups of possible offenders. Amendments 92 and 93 would extend the guidance from the exercise of functions by the police to, as in proposed new subsection 1A(b),
“guidance about identifying offenders in respect of whom it may be appropriate for … serious violence reduction orders to be made”.
To me, this reads very much like profiling. Can the Minister tell the House whether “identifying offenders” is about identifying particular individuals or a cohort, class or demographic in respect of whom the Government may see SVROs as appropriate?
My Lords, I rise to support in particular Amendments 90H, 90J, 90K and 90L. As has been said, they are critical to ensuring that more vulnerable women are not drawn into the criminal justice system through the de facto joint enterprise element of SVROs. Probably like other noble Lords, I was shocked to read the briefing from Agenda, which states that analysis of
“109 joint enterprise cases involving women and girls”
“there was not a single case in which women and girls had handled a weapon; in 90% of cases they engaged in no violence at all; and in half of the cases they were not even present at the scene of the crime.”
As we have heard, SVROs will mean that women can be given an order based on a single judgment that, on the balance of probability, they “ought to have known” that someone in their company was in possession of a knife. That key phrase, “ought to have known”, is really troubling. Will the Minister consider how this fits in with wider policy, including the female offenders strategy, to limit the number of women serving short sentences and prevent reoffending?
We have a duty to limit unintended consequences. These amendments would do just that.
My Lords, I rise to support Amendments 90G, 90H and 90J, but I will concentrate on Amendment 90G. I declare an interest: when I was a vicar in Tulse Hill, south London—I was there for 14 years—I was stopped and searched a number of times. I asked the police why, particularly when I did not have my dog collar on because I had gone to B&Q to get some paint to decorate our house. They said that they wanted to make sure that the tins of paint had not been stolen. I had to produce a receipt. I was then let go, but there were other occasions; it was not just a one-off.
I then became the Bishop of Stepney. I had been there for only about 18 months when, one evening, having taken my wife to a selection conference, on my way back, at about 10 pm, on that wonderful hill in London, I was stopped and searched. The man wanted me to open my boot, which I did. As I stood up, he suddenly saw my dog collar and purple shirt and said, “Whoops”.
I was an adviser to the Stephen Lawrence inquiry. By the way, it was not the Macpherson inquiry, as people tend to call it. If you look at the book, you will see that it was the Stephen Lawrence inquiry, chaired by Sir William Macpherson of Cluny, who died last year.
We said that stop and search is a useful tool, but it must be used when the police have evidence—when there are a lot of people around in the community who will tell you, “So-and-so has done this”. Community intelligence was necessary; that is why we recommended it. The words were that you stop and search somebody on “reasonable grounds”, but the issue is that it depends on who is judging the reasonableness of it. If you said to the likes of me that I must use reasonable grounds—because I was stopped and searched a number of times—I would be bound to err on the side of “Well, give them what-for”. Language does not always mean the same things to every person. I can see why the noble Lord, Lord Paddick, is trying to introduce “beyond reasonable doubt” instead of “reasonable”, because, after all, we are talking about prevention of a crime, so the standard has got to very high. If we were to use this very strong expression, “beyond reasonable doubt”, it is quite possible that the police woman or man who is trying to stop and search somebody would think about whether it was really reasonable for it to be done, whereas at the moment, people of my hue have been stopped without any reasonable grounds whatever.
The problem is not that there has not been enough training or enough work; it is just that it is one of those things that you do. Not all police officers have got it in for black people—it would be ridiculous to suggest that that was so; I have come across some wonderful people—but the way in which the language is used does not help. I said to somebody who asked me why I left law, “Maybe, it is like when somebody opens a shop and they put you in charge of the money. God, in order to prevent me putting my hand in the till, put me where there is a lot of light everywhere, so that people can see what I am doing”. That is why I became a clergyman, to prevent me doing even worse things. All of us are liable, friends, to do the sort of things that we know we ought not to be doing. When you are given a uniform, it gives you power. Stop and search has gone wrong—I insist that it is still a very good tool—because this reasonableness stuff for some is not reasonable; they just assume, and it creates difficulty within the community.
For those reasons, I support the amendment. It would stop every police officer and require them to think about whether they have gone “beyond reasonable doubt”. It is better to get the community working with you instead of you feeling that they do not want you to do whatever you are doing. Community policing is at the hub of it; intelligence is necessary; stop and search is a useful tool, but, at the moment, the language used does not stop people doing that which they know instinctively they ought not to be doing.
My Lords, I generally support this important legislation, but I expressed at Second Reading and again in Committee my sense of unease about the whole concept of serious violence reduction orders but also about the detail of their implementation. It is clear that my arguments have not borne the fruit I would hope to see, because I have read—since she kindly copied it to me—my noble friend’s letter to the noble Lord, Lord Paddick, in which the Government made it clear that they did not see any scope for budging either on the principle or on the detail of the implementation of these provisions. So, rather than engage in a discussion across a broad front, I shall simply focus my few remarks on Amendments 90K and 90L in the name of the noble Baroness, Lady Armstrong of Hill Top, which deal with what might be the most egregious question on this subject, that of “ought to know” or “ought to have known”, depending on how it is phrased in the Bill.
The Government are proposing that people should be subject to these orders, which are serious constraints on their liberties and which have potentially severe reputational consequences. In some cases, these may be merited, but in the case of “ought to have known” it is extremely difficult to accept that the burden on those who receive these orders is merited, on the basis not of their carrying a knife, not even that they knew a knife was being carried but that they ought to have known a knife was being carried.
There are three essential problems. The first is meaning. The noble and right reverend Lord, Lord Sentamu, pointed to the difficulties that arise from the variability of language. The expression “ought to have known” is one that we can easily use in different ways in ordinary, natural language. But we are dealing here with language that ought to be drafted in a precise fashion and can be applied in a predictable way in a court of law, because we want our laws to be predictable. We want people to know that, if they do this or that, they will be in trouble, but if they do not do so, then that is okay. I do not know what “ought to have known” means in a legal sense.
The second problem is evidence. Even if you had a clear understanding of what the words “ought to have known” mean, how is that to be established in a court of law when, as I have said before to your Lordships, it is difficult enough to establish in a court of law what somebody did or did not know, let alone what they ought to have known. There is an evidential question here.
The third problem arises from the first two. It will be a decision of this Parliament to adopt this language which throws a huge interpretational burden on the courts. We do not know how the courts are going to interpret or implement this language. I do not want to draw unfair parallels, but when we discussed in Committee and on Report the question of prisoners serving indeterminate sentences for public protection, it was clear that the Home Secretary of the day, the noble Lord, Lord Blunkett, did not expect the provision to be applied by the courts with the liberality that the judges felt obliged to apply because of how it had been drafted. I hope I have explained that correctly. In other words, the noble Lord, Lord Blunkett, thought it would be applied only occasionally, but when the judges read what they were expected to do, they felt obliged to apply it more liberally to far more cases, which had never been his intention when he had proposed it. We are potentially in similar circumstances here. We simply have no idea, if we agree this language, how it is going to be applied by the courts in actual cases: with what breadth or how frequently it will be applied to people who were not carrying a knife and did not know that a knife was being carried but it is felt on some basis that they ought to have known.
I am not trying to detract from the other amendments in this group by focusing my remarks on this narrow point, which has been addressed by other noble Lords. I am focusing on these two amendments because I would hope that my noble friend might, after reflecting on it, be willing to come forward at Third Reading with something that rethought this approach. Or at the very least, if it did not rethink it, she would say that she was going to add words or guidance or some other supplement to the Bill which would make the circumstances in which this applied very specific such that we had that level of certainty that we did not impose this burden on the courts. We should have certainty in law but also certainty in our own minds as to how frequently and commonly this penalty would be applied in the event of “ought to have known” cases.
My Lords, I rise to support the general thrust of what the Government are trying to achieve, although I have some sympathy for one or two points that have been raised by previous speakers. I do not speak as a zealot for stop and search. It has dangers, which I hope I can persuade noble Lords I have taken seriously in the past.
The Government seem to be trying to change the culture of people carrying knives, either in public places or sometimes in private. Far too many people have been carrying knives and clearly still are, leading to minor arguments ending up in fatal events. We know that people who are repeat offenders disproportionately account for a disproportionate amount of crime. As few as 10% of offenders, on some occasions, can account for two-thirds of the crime. That applies to victims as well as to the places that they meet, which are repeat locations. Legislation over the years has tried to do something about that and, I think, has generally been well intended.
I agree with many of the things that the noble and right reverend Lord, Lord Sentamu, has said. He had a worrying experience, but a lot of it has been London based. For historical reasons, there have been three different types of legislation which have caused real problems in this city, but occasionally in others. The sus law of the 1960s allowed unqualified stop and search. That caused a great many problems and was got rid of.
Then along came Section 44 of the Terrorism Act 2000. Section 44 was precisely intended for locations that were likely to be attacked by terrorists—places such as Parliament. It was intended to draw a line around places and, if someone went into this area, they could be searched without cause. In fact, the Metropolitan Police applied that throughout London. Every one of the 32 boroughs was covered by that piece of legislation, so people who live in London have had that experience of stop and search without cause for tens of years. Whether it be people who are now being stopped and searched, or their parents or grandparents, they have that experience. That is the thing that I am afraid has disproportionately affected how they feel about the legislation.
The latest version is Section 60. The noble Lord, Lord Paddick, raised this and I have some empathy with part of what he said, for the reason I will explain. Section 60 was intended, again, to circumscribe certain areas where there was to be stop and search without cause—perhaps a park where many people had been stabbed or a location where gangs had been meeting and attacking each other. In that area, everybody was warned, “If you go in this area and carry a knife, you are likely to be stopped and searched without cause”, because the idea was to disrupt their offending pattern. I agree with the noble Lord, Lord Paddick, that often these areas are not well described. People are not told that they are about to enter one, so, therefore, when an officer stops someone, they can be suspicious and ask whether they are in a Section 60 area or have they been stopped and searched for no good reason at all.
As I said, I am not a zealot for stop and search. In 2011, when I took over the Met, we had just had the London riots. We never had a public inquiry into those events, but one of the conclusions I drew for myself when I looked at the figures was that stop and search had been very high. In the two preceding years, 2.6 million people had been stopped and searched in London. At the time, there were only 8.4 million people living in London. If we discount people who were not on the streets because they were older or younger, this was a very high number and that worried me. Over the succeeding three to four years, we reduced stop and search by 60% and we reduced Section 60s by 90% because, frankly, they were like confetti scattered around London. Ironically, the more there were, the less they could be policed.
There was a disproportionate amount of vague stop and search. Within that, we had disproportionality: there were very high figures for people of Asian appearance after 9/11 and that was certainly true of the black community as well. Over three years, we managed to get the stop and search disproportionality for people of Asian appearance down, from over seven times more likely than the white community, to less than one compared to the white community. We did not have as much success with the black community. We got better but nowhere near what I would call a more representative look.
I am only trying to convince your Lordships of two things. A targeted stop and search, even where there is not a cause, can be really helpful, either geographically or targeted on the offender. That is where the serious crime prevention orders can make an impact. Generally, they are targeted only at people who have been convicted already of carrying a knife, or who have been carrying a knife and have not been convicted but a court has been persuaded that there is a good reason.
Of course, people will argue that you have to be careful about this. I can see the sense in which that could be argued, and I agree. I also take the point made by the noble Baroness, Lady Meacher: what is someone who is with a domestic violence offender to do about them generally carrying a knife? Where it is intended to make some progress is with gangs, usually of young men, but often with young women, who wander the streets—particularly in London but not only London: also in our big cities and sometimes in rural areas—who know that someone in the group carries a knife and yet still hang around with them. Often not just one individual is the problem; it is the fact that there are 10 or 20 people, and everybody is intimidated when the knife comes out. It is about trying to make real progress on that culture of carrying knives or supporting the people who do.
The intentions of the Bill are good. I could support some more questions about the amendments that are being made, but I would not support the removal of Section 60, for the reason I have explained; I can support only the improvement of it. I can see why, with those who are with people who carry knives, we have to be really careful before we impose one of these orders, but that is what courts are for.
Finally, a couple of people have asked how you prove that someone ought to have known. I am not a lawyer, and I cannot therefore define the words—whether it should be “ought to have known” or if a better form of words could be found—but I know that quite often evidence can be discovered that will prove this sort of thing. If someone says that they did not know that he or she was carrying a knife, that is one statement, but you might talk to everybody else in the crowd who say they knew of the knife, or you might have a photograph showing that everybody in the group was carrying a knife or that somebody saw a knife when it was out. I think what is being challenged is somebody turning a blind eye to the fact that somebody is carrying a knife, rather than disproportionately finding a criminal offence for someone who is innocent of any offence at all. It is trying to do something about that crowd support for the person who carries a knife.
Generally, I support the original intention of the legislation. It is not only well intended but well focused. People are carrying knives. They have been convicted already of carrying knives, they have been told, so why are they still carrying knives? Somebody has to do something about that, and not leave officers on the street at 3 am to make all those decisions themselves. They need some support, therefore this legislation is worthy of support.
My Lords, all of us in the Chamber are united by our desire to tackle violent crime, target police resources better and see fewer victims of crime. If we look at the Government’s own statistics with respect to this, it is worth reminding ourselves that to be fair to the Government, this is what they are seeking to try to deal with. In the impact assessment we see that offences involving knives increased by 84% between June 2014 and June 2020, homicides increased by 38% and gun crime rose by 28%. In the year ending June 2020, 262 people were stabbed to death, with 4,800 admissions for assault by a sharp object. Just recently, we have seen the horrific figure of 30 young people murdered on the streets of London. You can see why the Government are seeking to do something.
Any Government would want to do something, but what is being said to the Government is: are the serious violence prevention orders and the way in which they are set up the way to deal with that? That is the purpose of many of the amendments, many of which we support. The purpose of the amendments today—again, we have heard many arguments from many noble Lords in this House—is to raise those concerns and air those issues about how the orders will be used and the breadth of who they can be applied to. There is some difference of opinion, as we have just heard from the noble Lord, Lord Hogan-Howe, in his view of stop and search without suspicion and its use, and others have very serious concerns about it.
If the measures—these orders—are to go ahead, the crucial thing for this House is to ensure that the pilot that the Government have said they will carry out with respect to these orders is absolutely right, and to make sure that it is not just a tick-box exercise that the Government can use to say, “There you are—that proves what we said in the first place.” In particular, we need to look at whether the issues that have been raised, quite rightly, actually occur, in which case the orders would be inappropriate. Most important of all: do the orders work? Will they actually bring down those horrific figures that I just mentioned in the way that we would all want? Do they reduce and prevent violent crime, are they successful at diverting people away from crime and the criminal justice system, and are they a good use of police resources?
I pay tribute to my noble friend Lady Armstrong who, for good reason, cannot be with us today, for her Amendments 90K and 90L, and to the right reverend Prelate the Bishop of Gloucester for her support for them. They raise the issue of women and girls who have been exploited in gangs and are likely to be caught up in the provisions of these serious violence prevention orders, in particular where, in the phrase we have heard from many noble Lords, they “ought to have known” that a companion was carrying a knife. Notwithstanding what has been said, my own experience of this is that “ought to have known” ignores the reality of the coercive and abusive nature of many girls’ involvement in those gangs. It is not the “ought to have known” that we would all think about when we talk about the lives we lead. In the chaotic lifestyle of those gang members, “ought to have known” is an unreasonable expectation. It is absolutely vital that the pilot looks at how those provisions impact on violence against women and girls and their impact on vulnerable and exploited women.
Therefore, because of the importance of the pilot, we strongly support the amendments in the names of the noble Baroness, Lady Meacher, the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Paddick: Amendments 95A, 95B and 95C. Amendment 95B in particular brings all of these debates together in ensuring that Parliament not only gets a report on the pilot but a detailed answer from the Government on any issues that the pilot raises. Not many amendments could be quite as reasonable as that. It would provide simple parliamentary scrutiny and allow Parliament then to make a decision on whether these orders work and should be rolled out and on whether the issues that many noble Lords have raised are right.
Amendment 95C ensures the pilot is a genuine evidence-gathering exercise and considers, as I say, all the important issues raised. I raised the issue of parliamentary scrutiny in Committee, as did others, and I am grateful to the Minister for writing to the noble Lord, Lord Paddick, in response to the points raised and copying it to other noble Lords. At the moment, the Bill would provide that certain details of the orders are provided in regulations that would be subject to the affirmative procedure, which is welcome. The amendment would take this one step further—quite rightly, which is why we support it. It would ensure that the decision over whether to introduce the orders, once we have genuine evidence on how they have worked following the pilot, is taken by Parliament and not just by the Home Office. I respectfully suggest that that would not be too big an ask. The Government have already accepted that these orders need to be piloted, so if the principle of piloting has been accepted, surely Parliament should be able to scrutinise whether the pilot has been a success and whether the issues raised by noble Lords and indeed others in the other place are right.
All of us are united by a desire to tackle serious and violent crime, but that does not mean that we should just take any action that this Parliament considers necessary without considering the consequences. Stop and search without suspicion is probably one action that highlights that more than any other, but there have certainly been other issues related to women and girls as well. I ask the Minister to consider parliamentary scrutiny and whether these orders should go forward. I would suggest that is a perfectly reasonable response for this Chamber and others to make.
My Lords, as we have heard, these amendments are about two things: serious violence reduction orders and stop and search powers more broadly. I am grateful to the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, for setting out the case for their amendments, and to other noble Lords for promoting the points of the noble Baroness, Lady Armstrong, in her absence. We wish her well.
Amendments 90G, 90M and 91C would raise the threshold for the standard of proof required to impose an SVRO from the civil to the criminal standard. SVROs are civil orders introduced to protect communities and deter offenders from future offending. As such, we think that the civil standard is appropriate to enable a court to consider a wide range of evidence from both the offender and the prosecution when considering whether to make an SVRO.
Amendments 90H, 90J, 90K and 90L all seek to limit the circumstances in which an SVRO may be made. As regards Amendment 90H, it is the Government’s view that an SVRO should be available when an adult has been convicted of an offence where a knife or offensive weapon was present, whether it was used in the commission of the offence or not. But this does not mean that an SVRO will be applied for, or made, in all such cases. The prosecution would first need to consider whether it was appropriate to make an application to the court for an SVRO. The court must consider it necessary to make the SVRO in order to protect the public or prevent reoffending, and it would be very difficult to see how a court might consider an SVRO to be necessary if there was no evidence of risk of harm involving a knife or offensive weapon or risk of knife or offensive weapons offending; the bladed article was not relevant to the offence; or the individual was in possession of a bladed article with a reasonable excuse such as for use at work or for religious purposes—the right reverend Prelate the Bishop of Manchester gave an example of the church picnic.
Amendments 90J, 90K and 90L would remove provisions in the Bill that would allow an order to be made if another person who committed the offence used or had with them a bladed article or offensive weapon in the commission of the offence and the offender knew or ought to have known that this would be the case. I reiterate that, for an SVRO to be made in any circumstances, the individual must have been convicted of an offence where a bladed article or offensive weapon was used in the commission of the offence or was with either the offender or another individual who was also convicted of an offence arising from the same set of facts. This provision would capture a situation where more than one person was convicted of an offence arising from the same set of facts, but not all the individuals used a bladed article or offensive weapon in the commission of the offence, or had such an item with them when the offence was committed.
In these circumstances, an SVRO may still be necessary to protect the public or any particular members of the public, including the offender, from the risk of harm involving a bladed article or offensive weapon, or to prevent the offender from committing an offence involving a bladed article or offensive weapon—for example, a fight or robbery where the offender in possession of a knife and the offender not in possession of the knife are convicted of offences arising from the same facts. In any such case, the prosecution must consider whether to make an application for an SVRO and the court must consider whether to grant that order. I think the noble Lord, Lord Hogan-Howe, made that point. Both the prosecution and the court therefore retain discretion to determine the appropriate course of action on a case-by-case basis. On my noble friend Lord Moylan’s point about “ought to have known”, I will undertake to ensure that we address that point in the statutory guidance; it is a good point. I also add that the phrase is used in other legislation, so it is not a new concept that is unknown to the courts, albeit that it is used in different circumstances. I will take that one back.
Amendments 90N, 90P and 90Q seek to amend the evidential requirements for an SVRO to be made. We consider it appropriate for the court to consider a wide range of evidence about the offender that may not have been admissible in the proceedings in which the offender was convicted. For example, the offender may have a history of knife carrying that would be relevant to whether an SVRO would be necessary to protect the public from the risk of harm involving a bladed article or offensive weapon, or to prevent the offender committing an offence involving such an article or weapon.
Amendments 91A and 91B would change provisions for offences relating to an SVRO. We have provided a reasonable excuse defence in relation to failing to comply with any of the requirements of an order or any prohibitions, because it is possible that a person may have a good reason not to comply. However, it is difficult to see any circumstances where it would be reasonable for an offender not to tell an officer that they are subject to an SVRO if they are asked. I am therefore not persuaded of the case for Amendment 91A.
As for amendment 91B, the noble Lord, Lord Paddick, is quite right that the Police Act 1996 already provides for an offence of wilfully obstructing a constable in the execution of their duty. However, we think that it is clearer to set out in one place what specific behaviours amount to an offence in relation to an SVRO. This would provide clarity to the CPS, police and courts as well as the offenders themselves. Moreover, the obstruction offence in this Bill carries a higher maximum penalty compared with that in the 1996 Act.
Amendment 91D seeks to limit the number of times an SVRO can be renewed to no more than once. We do not expect the police to apply for an order to be renewed indefinitely, and we will clarify this point in the statutory guidance. However, there may be circumstances where it would be necessary to renew the SVRO for further periods of between six months and two years, and it will of course be up to the court to decide if this is both necessary and proportionate.
Amendments 95A, 95B and 95C seek to specify matters to be addressed in the report on the operation of the pilot and to provide for the national rollout of SVROs to be conditional on a parliamentary vote. I hope that noble Lords will be reassured by the fact the SVROs will be introduced on the basis of a targeted pilot. They will be piloted in the Sussex, Thames Valley, Merseyside and West Midlands police forces. On the point from the noble Lord, Lord Coaker, I say that the Bill expressly provides that the Secretary of State must lay a report before Parliament on the operation and outcome of the pilot. I know that noble Lords will be keen to know the detail of the matters to be addressed in the report on the outcome of the pilot and I reassure the House that we want the pilot of SVROs to be robust and its evaluation to be thorough, before any decision is made to roll them out across England and Wales.
I am pleased to announce that we have appointed Ecorys as the independent evaluator of the pilot. It will work with the pilot police forces to monitor and gather data on a number of different measures. These will include the impact of SVROs on serious violence, evidence on reoffending and the outcomes for offenders who are the subject of an SVRO. We will also use the pilot to build our understanding of how we ensure that vulnerable offenders are supported and directed to local intervention schemes, and of community responses to the orders. The pilot report will include basic data on the age, sex and ethnicity of people subject to SVROs. We make no assumption now about the success or otherwise of the pilot, but I do not see any reason to depart from the normal position that commencement regulations are not subject to parliamentary procedure.
Amendment 101 seeks to repeal the Section 60 stop and search provisions. I thank the noble Lord, Lord Hogan-Howe, for some of the points that he made, and of course the noble Lord, Lord Paddick, is right once again to highlight the vital importance of ensuring that officers are using their powers based on intelligence and legitimacy to ensure that the rights of the individual are upheld. The guidance is very clear that the Section 60 powers should only be used proportionately and in an intelligence-led way. I come back to the point made by the noble Lord, Lord Hogan-Howe, that perhaps we could do more so that people go into areas knowing that they are Section 60 areas. I will take that point back.
To respond to the point from the noble Baroness, Lady Hamwee, race or ethnicity should never be a reason to use stop and search powers against individuals, and safeguards exist to prevent that, notwithstanding the awful experience of the right reverend Prelate—I am sorry, the noble and right reverend Lord, Lord Sentamu. He will always be a right reverend Prelate to me. Those safeguards include statutory codes of practice, body-worn video, which we have in place now—that is a fantastic advancement, ensuring that officers are accountable during a search—and extensive data published by the Home Office on the use of stop and search in order to drive transparency. We will always give the police the tools they need to tackle serious violence and other crimes. I therefore do not think it is in the best interests of public safety to repeal those important powers.
I shall deal briefly with the government amendments in this group, on one of which the noble Baroness, Lady Meacher, asked for clarification. New Chapter 1A of Part 11 of the Sentencing Code confers a number of powers and duties on the police in relation to SVROs. On introduction, new Section 342J provides that the Secretary of State may issue guidance to the police on the exercise of those and other functions under that chapter. Amendments 92, 93 and 94 widen the power to issue guidance so that guidance may be introduced on any matter relating to SVROs and provide a non-exhaustive list of the matters that may be covered by the guidance.
On Amendment 93, we expect the pilot forces to work closely with the CPS to identify cases that may benefit from an SVRO. That would be a similar process to how police forces identify now who may benefit from a criminal behaviour order or other relevant order. We want to ensure that SVROs are as effective as possible, benefit the right cohort of individuals and deter criminal offending. We will therefore be working closely with the pilot forces to agree effective processes in order to achieve that aim.
Amendment 91 is a technical amendment that clarifies that if an application for an SVRO is made, the court can adjourn proceedings after sentencing the offender in order to deal with the SVRO at a later date. For the avoidance of doubt, Amendment 96 makes a similar amendment to the provisions in the Offensive Weapons Act 2019 relating to knife crime prevention orders, or KCPOs, to make it explicit that if an application for a KCPO is made, the court may adjourn proceedings on the application after sentencing the offender.
The Government’s firm view is that the stop and search powers provided for through the new serious violence reduction orders and the existing Section 60 of the Criminal Justice and Public Order Act provide an important and effective tool to help the police tackle knife crime and keep our community safe. We think that the circumstances in which an SVRO may be made are appropriate to help protect the public on our streets. However, we are committed to the robust piloting of SVROs before any national rollout, and I hope I have been able to reassure the House of that.
Given that, I ask the noble Lord, Lord Paddick, to withdraw his amendment. Should either he or the noble Baroness, Lady Meacher, wish to test the opinion of the House, I have any hesitation in asking noble Lords to reject their amendments.
My Lords, I thank all noble Lords for their contributions to this important debate. I particularly thank the right reverend Prelates and the noble and right reverend Lord, Lord Sentamu, for their contributions. Unfortunately, I did not hear the Minister adequately address their points or the issues that I raised. I asked specific questions about the Minister’s letter of 6 January, but she appeared just to stand at the Dispatch Box and repeat what was in that letter.
As far as I am concerned, I would not be satisfied about the pilots, but that is a decision for the noble Baroness, Lady Meacher, to take shortly. My understanding is that noble Lords are coalescing around a vote on Amendments 95A, 95B and 95C, so I think we should get on with it. I beg leave to withdraw my amendment.
Amendment 90G withdrawn.
Amendments 90H to 90Q not moved.
91: Clause 141, page 132, line 20, at end insert—
“(8A) The court may adjourn any proceedings on an application for a serious violence reduction order even after sentencing the offender.(8B) If the offender does not appear for any adjourned proceedings the court may—(a) further adjourn the proceedings,(b) issue a warrant for the offender’s arrest, or(c) hear the proceedings in the offender’s absence.(8C) The court may not act under subsection (8B)(b) unless it is satisfied that the offender has had adequate notice of the time and place of the adjourned proceedings.(8D) The court may not act under subsection (8B)(c) unless it is satisfied that the offender—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if the offender does not appear for those proceedings the court may hear the proceedings in the offender’s absence.”Member’s explanatory statement
This amendment makes it explicit that, if an application for a serious violence reduction order is made, the court may adjourn proceedings on the application after sentencing the offender.
Amendment 91 agreed.
Amendments 91A to 91D not moved.
Amendments 92 to 95
92: Clause 141, page 138, leave out line 6 and insert “in relation to serious violence reduction orders.”
Member’s explanatory statement
This amendment widens the power to issue guidance in new section 342J of the Sentencing Code so that guidance may be issued on any matter relating to serious violence reduction orders.
93: Clause 141, page 138, line 6, at end insert—
“(1A) The guidance may in particular include— (a) guidance about the exercise by constables, chief officers of police and the chief constable of the British Transport Police Force of their functions under this Chapter,(b) guidance about identifying offenders in respect of whom it may be appropriate for applications for serious violence reduction orders to be made, and(c) guidance about providing assistance to prosecutors in connection with applications for serious violence reduction orders.”Member’s explanatory statement
This amendment provides a non-exhaustive list of the matters that may be covered by guidance issued under new section 342J of the Sentencing Code.
94: Clause 141, page 138, line 13, leave out from “section” to end
Member’s explanatory statement
This amendment is consequential on Baroness Williams of Trafford's second amendment to Clause 141.
95: Clause 141, page 138, line 13, at end insert—
<strong>“342JA </strong> Guidance: Parliamentary procedure(1) Before issuing guidance under section 342J, the Secretary of State must lay a draft of the guidance before Parliament.(2) If, within the 40-day period, either House of Parliament resolves not to approve the draft guidance, the guidance may not be issued.(3) If no such resolution is made within that period, the Secretary of State may issue the guidance.(4) In this section “the 40-day period”, in relation to draft guidance, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House on the same day, the later of the days on which it is laid).(5) In calculating the 40-day period, no account is to be taken of any period during which—(a) Parliament is dissolved or prorogued, or(b) both Houses are adjourned for more than 4 days.”Member’s explanatory statement
This amendment applies a negative resolution procedure to the power to issue guidance under new section 342J of the Sentencing Code.
Amendments 92 to 95 agreed.
Clause 142: Serious violence reduction orders: piloting
95A: Clause 142, page 139, line 1, leave out “and (3)” and insert “to (3A)”
My Lords, I hope the House will forgive me if I say a few words in response to the Minister on Amendment 95A. The fact is that Amendments 95A and 95B would require the Government not only to lay the results of a full pilot before Parliament but to enable Parliament to decide whether SVROs should be rolled out across the country. We know that there is no evidence to suggest the wholesale expansion or extension of stop and search where there is no immediate evidence of potential wrongdoing in the situation. Therefore, all we are asking is that Parliament should be satisfied from the pilot that there is evidence that SVROs will reduce severe violence and protect communities—which we want to happen—and that that can be done without disproportionate detriment, particularly to black communities and to very vulnerable women but also to people in general.
We are asking for the pilot to be presented to Parliament and for Parliament to approve that SVROs should be rolled out. Because the Minister was unable to suggest that there should be any such democratic decision-making on this issue, I would like to test the opinion of the House on both Amendments 95A and 95B —but the vote will be on Amendment 95A, with Amendment 95B as the consequential amendment.
Amendment 95A agreed.
Amendments 95B and 95C are consequential and will therefore be taken en bloc.
Amendments 95B and 95C
95B: Clause 142, page 139, line 10, at end insert—
“(3A) The condition in this subsection is that the Secretary of State has laid before Parliament a response addressing any issues identified in the report produced under subsection (3).(3B) A statutory instrument containing regulations under section 178(1) for the purposes mentioned in subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This amendment would ensure that the section concerning Serious Violence Reduction Orders can only be commenced once a report on the pilot has been laid before Parliament and both Houses have voted on its commencement.
95C: Clause 142, page 139, line 10, at end insert—
“(3A) Before making the report under subsection (3), the Secretary of State must obtain, record and publish all reasonably available data, which is relevant to the effect of the operation of Chapter 1A of Part 11 of the Sentencing Code (inserted by section 141) under subsection (2) over a period of no less than 12 months, including—(a) its impact on the extent to which knives or weapons are carried;(b) its impact on the rate of serious violence;(c) the age, race, and sex (within the meaning of section 5, 9 and 11 of the Equality Act 2010) of each person—(i) in respect of whom an application is made under section 342A(1)(b) of the Sentencing Code;(ii) in respect of whom a serious violence reduction order is made by a court;(iii) in respect of whom an application is made under section 342A(1) of the Sentencing Code and the court has adjourned proceedings pursuant to section 342A(8A) or (8B);(iv) in respect of whom action is taken pursuant to section 342C, 342E, 342F, or 342H of the Sentencing Code; and(v) who is convicted of an offence within section 342G of the Sentencing Code;(d) any action which was taken pursuant to sections 342C, 342E, 342F, or 342H of the Sentencing Code, by reference to the age, race and sex of the offender;(e) the nature of, and reasons recorded for, any such action;(f) any complaint arising from the exercise of powers under section 342E of the Sentencing Code, the nature and outcome of that complaint, and the age, race and sex of the person who made it;(g) the offence within section 342G of the Sentencing Code for which any person was convicted and the sentence imposed, by reference to the age, race and sex of that person;(h) for each serious violence reduction order made— (i) the offence identified under section 342A(1)(a) of the Sentencing Code; (ii) whether the order was imposed under subsection 342A(3)(a), (3)(b), (4)(a) or 4(b) of the Sentencing Code; and(iii) if the order was imposed under subsection 342A(4)(a) or (4)(b), whether the order was made on the basis that the offender knew that a bladed article or offensive weapon was used by another person; or whether the offender ought to have known that this would be the case;(i) whether that operation of Chapter 1A of the Sentencing Code had a discriminatory, disproportionate or other adverse impact on people sharing the protected characteristic of age, race or sex;(j) the number of survivors and victims of domestic abuse, including women who have experienced or are experiencing criminal exploitation, coercive control, or other forms of abuse, who are given such orders, broken down by ethnicity, age, and policing borough.(3B) The report under subsection (3) must include—(a) an analysis of the effect described in subsection (3A), by reference to the data identified in subsection (3A);(b) an equality impact assessment of the operation of Chapter 1A of the Sentencing Code as described in subsection (3A);(c) a description of any guidance or codes of practice, to which the operation of Chapter 1A described in subsection (3A) was subject;(d) analysis of data assessing the extent to which the pilot has reduced serious violent crime and reoffending by comparison with other areas;(e) analysis of what evidence is relied on to justify the imposition of serious violence reduction orders, and whether there is any bias in the decision-making process;(f) analysis of information on the reason for each breach of a serious violence reduction order, any defence pleaded, and the result of the breach proceedings;(g) analysis of any impacts, including equalities impacts, of other positive requirements or conditions imposed on individuals pursuant to section 342C(1) of the Sentencing Code;(h) analysis of any impacts, including equalities impacts, of adjournment of proceedings on individuals where the court adjourns proceedings under section 342A(8A) or (8B); and(i) analysis of any impacts of serious violence reduction orders on survivors and victims of domestic abuse, including women who have experienced or are experiencing criminal exploitation, coercive control, or other forms of abuse, who are given such orders.(3C) Statistical information collected for the purposes of section (3B) from different pilot areas must be collected and presented in a form which enables direct comparison between those areas.”Member’s explanatory statement
This amendment strengthens the pilot provided for under Clause 142, with particular attention paid to equalities impacts and impacts on survivors and victims of domestic abuse and criminal exploitation.
Amendments 95B and 95C agreed.
96: After Clause 142, insert the following new Clause—
“CHAPTER 1AKNIFE CRIME PREVENTION ORDERSKnife crime prevention order on conviction: adjournment of proceedings
(1) In section 19 of the Offensive Weapons Act 2019 (knife crime prevention orders made on conviction), after subsection (9) insert—“(9A) The court may adjourn any proceedings on an application for a knife crime prevention order even after sentencing the defendant.(9B) If the defendant does not appear for any adjourned proceedings the court may—(a) further adjourn the proceedings,(b) issue a warrant for the defendant’s arrest, or(c) hear the proceedings in the defendant’s absence.(9C) The court may not act under subsection (9B)(b) unless it is satisfied that the defendant has had adequate notice of the time and place of the adjourned proceedings.(9D) The court may not act under subsection (9B)(c) unless it is satisfied that the defendant—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if the defendant does not appear for those proceedings the court may hear the proceedings in the defendant’s absence.”(2) Regulations under section 178(1) which bring subsection (1) into force only for a specified purpose or in relation to a specified area may—(a) provide for that provision to be in force for that purpose or in relation to that area for a specified period;(b) make transitional or saving provision in relation to that provision ceasing to be in force at the end of the specified period.(3) Regulations containing provision by virtue of subsection (2)(a) may be amended by subsequent regulations under section 178(1) so as to continue subsection (1) in force for the specified purpose or in relation to the specified area for a further specified period.(4) In this section “specified” means specified in regulations under section 178(1).”Member’s explanatory statement
This amendment makes it explicit that, if an application for a knife crime prevention order is made following a defendant’s conviction of an offence, the court may adjourn proceedings on the application after sentencing the defendant.
Amendment 96 agreed.
96A: After Clause 164, insert the following new Clause—
“CHAPTER 4FOOTBALL BANNING ORDERSFootball banning orders: relevant offences
(1) The Football Spectators Act 1989 is amended as follows.(2) Schedule 1 (football banning orders: relevant offences) is amended in accordance with subsections (3) to (7).(3) In paragraph 1(c) (certain offences under the Public Order Act 1986 committed at premises)—(a) after “any offence under section” insert “4,”, and(b) before “harassment” insert “fear or provocation of violence, or”.(4) In paragraph 1(k) (certain offences under the Public Order Act 1986 committed on a journey to or from a football match)—(a) after “any offence under section” insert “4,”, and(b) before “harassment” insert “fear or provocation of violence, or”. (5) In paragraph 1(q) (certain offences under the Public Order Act 1986 which the court declares to be related to a football match)—(a) after “any offence under section” insert “4,”,(b) before “harassment” insert “fear or provocation of violence, or”, and(c) omit “or any provision of Part 3 or 3A of that Act (hatred by reference to race etc)”.(6) In paragraph 1, after paragraph (u) insert—“(v) any offence under any provision of Part 3 or 3A of the Public Order Act 1986 (hatred by reference to race etc)—(i) which does not fall within paragraph (c) or (k), and(ii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(w) any offence under section 31 of the Crime and Disorder Act 1998 (racially or religiously aggravated public order offences) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(x) any offence under section 1 of the Malicious Communications Act 1988 (offence of sending letter, electronic communication or article with intent to cause distress or anxiety)—(i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s),(ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and(iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(y) any offence under section 127(1) of the Communications Act 2003 (improper use of public telecommunications network)—(i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s),(ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and(iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation.”(7) In paragraph 4—(a) the words from “In this Schedule” to “Part II of this Act.” become sub-paragraph (1), (b) after sub-paragraph (1) insert—“(1A) In this Schedule “football organisation” means an organisation which is a regulated football organisation for the purposes of Part 2 of this Act.”, and(c) after sub-paragraph (2) insert—“(3) The provision that may be made by an order made by the Secretary of State for the purposes of this Schedule includes provision that a person has a prescribed connection with a football organisation where— (a) the person has had a connection of a prescribed kind with a football organisation in the past, or(b) the person will or may have a connection of a prescribed kind with a football organisation in the future.”(8) In section 14 (main definitions), after subsection (2) insert—“(2A) “Regulated football organisation” means an organisation (whether in the United Kingdom or elsewhere) which—(a) relates to association football, and(b) is a prescribed organisation or an organisation of a prescribed description.”(9) Section 23 (further provision about, and appeals against, declarations of relevance) is amended in accordance with subsections (10) and (11).(10) In subsection (1), for the words from “related to football matches” to the end of the subsection substitute “—(a) related to football matches,(b) related to a particular football match or to particular football matches,(c) related to a football organisation, or(d) related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation,as the case may be.”(11) In subsection (5), for the words from “related to football matches” to the end of the subsection substitute “—(a) related to football matches,(b) related to one or more particular football matches,(c) related to a football organisation, or(d) related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation.”(12) This section does not apply in relation to an offence committed before the day appointed by regulations under section 178(1) for its coming into force (so far as it has not previously been commenced by section 178(4)(ta)).”Member’s explanatory statement
This amendment modifies the list of relevant offences in Schedule 1 to the Football Spectators Act 1989 which trigger the making of a football banning order to include, in particular, certain offences relating to race or religion and certain online hate offences.
My Lords, I beg to move the amendment in the name of my noble friend Lady Williams of Trafford.
These amendments give effect to a commitment made by the Prime Minister in the immediate aftermath of the final of Euro 2020. The whole of England was disappointed by the outcome, and that is understandable. What was not excusable or acceptable was the racist abuse directed at certain England players. Your Lordships will also be aware of the ubiquitous slow drip of hateful online abuse many high-profile footballers are subjected to. In the light of that behaviour, the Prime Minister announced that we would legislate to extend the football banning order regime to cover online abuse, and that is the purpose of these amendments. In Committee, the noble Lord, Lord Bassam, tabled an amendment directed to the same end. In response, I said that the Government would look to legislate as soon as possible, and that is what we are doing. I hope the noble Lord will feel that his objectives have now been met and will welcome these amendments.
Football banning orders were first introduced in 1989. The intention of these new clauses is to amend the operation of the football banning order regime to enable a court to impose a football banning order against persons convicted of online hate offences connected to football. The amendments will also enable a court to impose a football banning order for other race, religious or sexual orientation hate offences against persons with a prescribed connection to a football organisation where the incident would not fall under the existing coverage. This will prevent such offenders propagating their criminal, hateful views at football matches. I sincerely hope that this measure will also deter others from engaging in similar behaviour that is so harmful to the victims and our national game.
Amendment 96B will amend the Football Spectators Act 1989 to enable the list of relevant offences in Schedule 1 to that Act to be amended by regulations subject to the affirmative procedure. A person can receive a football banning order following conviction for a relevant offence. There is no intention to use the new regulation-making power to add to the schedule offences that do not involve violence, disorderly behaviour or harm to others, or a risk or threat of such, nor to add offences which are not football-related. Rather, this will enable the Secretary of State to ensure that the list of relevant offences for the purposes of football banning order proceedings can be kept up to date and relevant in the event of amendment to the Acts listed in the schedule or developing trends of harm or disorder relating to football, such as online hate offences.
Finally, Amendment 96C will amend the consideration that a court undertakes in deciding whether to impose a football banning order against a person convicted of a football-related offence under the 1989 Act. It will remove the requirement that the convicted person must pose an identifiable risk of violence or disorder at or in connection with football matches. I must again reference the vile online racist abuse of England players after the Euro 2020 final. Under the current test, courts may not be convinced that offenders convicted of racist online offences pose an identifiable risk of violence and disorder at matches. However, I believe that it is imperative to ensure that such offenders can be prevented from spreading their hateful words at football matches. Courts will retain their powers of discretion if there are particular circumstances relating to the offence or the offender which would make it unjust to impose a football banning order, with a requirement that they state in open court their reasons for not doing so.
We can all agree that there is no place for racist abuse in football—or more widely—and it is right that we should send a strong signal that those convicted of racist abuse or other unconscionable hatred connected to football should not be allowed to attend football matches to spread their poisonous prejudices. This is a sensible and much-needed change to the legislation governing football and I ask your Lordships to endorse it.
My Lords, can the Minister confirm the impact these amendments will have on homophobic abuse of soccer players? I think he mentioned it once. Tom Daley on Channel 4’s “Alternative Christmas Message” talked about the fact that no professional footballers in the UK have publicly said they are gay: fear of public reaction is probably a big part of the reason why. In fact, globally, it is my understanding that only one professional soccer player has come out as gay, and he plays in Australia.
People have shied away from a hierarchy of diversity, but I have always believed that racism is a bigger problem than homophobia: some people can hide their sexuality, but few people of colour can hide their race. Having said that, people can hide their religious beliefs; there are many white Muslims, for example. These amendments cover religion but not, at least immediately obviously, sexuality. Racism is still a huge problem, and these amendments are welcome, but where is the clear and unambiguous message in these amendments that homophobic abuse directed at football players is just as unacceptable as racism and Islamophobia? It is not clear to me.
Even the Government’s explanatory statement for these amendments refers to
“certain offences relating to race or religion and certain online hate offences.”
If I am having to search the many and various pieces of legislation mentioned in these amendments to satisfy myself that people like me are covered, then these amendments do not send a clear and unambiguous message that homophobic abuse is as unacceptable as racism and Islamophobia. The Law Commission in its recent report on hate crime identifies the need to place sexual and gender diversity hatred on the same footing as race hatred, so what assurances can the Minister give in this case? I do not want perfection to be the enemy of the good, and there will still be an opportunity to provide clarification at Third Reading, but I look forward to the Minister’s response.
My Lords, it would be remiss of me not to thank the Government for bringing forward these amendments. They very much fulfil the objectives that I set out in moving my amendments in Committee. Imagine my slight surprise when I received an email shortly before Christmas from one of the officials telling me about this, though it had been suggested to me, and that the announcement was going to be made on Boxing Day—not a day traditionally used for parliamentary consideration. But I was pleased to hear that the Government were going to bring forward the amendments. I offered at one stage to co-sign them, but that seems to have got lost in the mists.
I am not entirely convinced that we would have seen these amendments if we had not brought them forward in Committee and threatened the Government with, I suspect, the possibility of a defeat on them. It has taken the Government too long to get to this point. Boris Johnson himself mentioned it back in July, but we have been campaigning on this issue for some years, and these amendments are long overdue.
Turning to the points raised by the noble Lord, Lord Paddick, I too would like to see some clarification as to whether these amendments will cover homophobic abuse. It is fair to say that many of the football clubs are well ahead of the Government on this already. I know that my own football club, Brighton & Hove Albion, has long taken the view that homophobic abuse is unacceptable and made that very clear, not just in its programmes and publicity but in its action. That is to be welcomed. Many clubs have adopted that approach and now take pride in supporting gay footballers and ensuring that people do not get abused in that way at games. That is to be welcomed, but we need some legislative clarity.
I have one further point that I wish to pursue with the Government. The Bill is an opportunity to cover online abuse wherever it manifests. Although football understandably is a natural focus for this because, let us face it, that is where a lot of racist abuse has been channelled over the last few years, particularly last summer, I challenge the Government to bring forward a further amendment which covers other sports. We are all very conscious and aware of the racism that is there in other sports and sporting activities, and the abuse that many black and minority-ethnic cricketers, in particular, have suffered.
We should try to deal with the whole package, and it would be a good challenge for the Government to meet to bring forward amendments that we and, I am sure, other Members of your Lordships’ House would support at Third Reading. We would be more than happy to use our drafting talents to make sure it happened. It would clarify once and for all the position for all sports men and women across the UK, and it would send a strong and important message that this is just not acceptable behaviour in any shape or form in any sporting arena or in any sport.
I support the noble Lord, Lord Paddick, in seeking clarity about homophobic abuse; that is really important. I would like the Government to bring forward further amendments to cover other sports at Third Reading. I do not think that it is beyond the wit of the Government they have clever and cunning draftspeople at their beck and call and there are plenty of us in this House who would want to support that and sign up to that agenda.
I place on record my thanks to the Minister and Ministers generally, to the Home Office staff who have supported them, and to our own staff in our Labour Lords team who did the original drafting, because this is an important step forward and we should recognise that.
My Lords, I too support these amendments and thank the Government for their clarity; there were some other sections about which we were not sure in terms of their language. Again, sorry to sound as though I am stuck in a groove: in the Stephen Lawrence inquiry and its recommendations there is a definition of a racist incident and a homophobic incident. Parliament, in the other place, accepted all 70 recommendations. If you want to find how to phrase what the noble Lord, Lord Paddick, is talking about, it is already there in the Stephen Lawrence inquiry report and the recommendations that we made.
The thing about the law is that it must be predictable, easy to understand and not shrouded in mystery. I support the noble Lord, Lord Paddick. The Government need to be clear about this and the language because the other place accepted all 70 recommendations. It is in there, and it would be a mistake not to be very clear about the whole question of these homophobic incidents and the abuse that some people have suffered. I would support the Government in finding that language. They could put in similar words about what they have actually done about racism.
My Lords, I agree with the noble Lord, Lord Paddick, that it is very important to have clarity that homophobic abuse is here covered. For my part, I understand—I ask the Minister to confirm whether he agrees—that the substance of these amendments does cover homophobic abuse, in particular proposed new subsection (6) of the new clause, which refers to Part 3A of the Public Order Act 1986, which, as I understand it, specifically covers homophobic abuse, as does proposed new subsection (6)(x)(ii), which refers to Section 66(1) of the Sentencing Code, which, again, I understand covers homophobic hostility as well as racial hostility. But clarity is absolutely essential here.
My Lords, I thank noble Lords for their contributions to this debate. In answer to the noble Lords, Lord Paddick, Lord Bassam and Lord Pannick, I can happily clarify that this includes homophobic and misogynistic hate speech, and all other forms of hate speech. The noble Lord, Lord Pannick, is absolutely right: it is under Section 3A of the Public Order Act 1986. I am afraid I do not have the Sentencing Code so I will have to look into that for him.
The core amendments apply to online hate speech where the court has found on sentencing that the offence was aggravated by racial or religious hostility, or hostility related to disability, sexual orientation or transgender identity. This reflects the five types of hate crime recognised by the law, which I think is the Sentencing Code.
I agree with the point made by the noble Lord, Lord Bassam, about other sports. I have heard the DCMS Minister answer questions on this, and there will of course be other opportunities in other Bills coming up, which I suspect will also have something to say on the subject, but I will take it back to both departments.
Before the Minister sits down, could I clarify what he just said? It threw another confusion at me. He said it covers misogynistic hate speech. I am not sure misogyny is a hate crime. Therefore, I am not sure the Minister is correct on that point. Perhaps he could clarify.
My Lords, I am grateful to the Minister for his comments and his agreement to take that away. For our part, we would very much welcome a discussion on that with him and his officials, if that is at all possible. We are some way off from the Third Reading, and, clearly, we would be in a position to bring forward an amendment if that would help.
It would be for the good if we could have some cross-party agreement on this, because it is an issue on which we can have a shared view. That shared view adds extra emphasis and import to the progress that we make. We would very much welcome the Minister facilitating that discussion, and obviously we would be delighted if the Government were to concede and bring forward amendments which cover all other sports as well.
Amendment 96A agreed.
Amendments 96B and 96C
96B: After Clause 164, insert the following new Clause—
“Football banning orders: power to amend list of relevant offences
(1) In section 14 of the Football Spectators Act 1989 (main definitions), after subsection (8) insert—“(9) The Secretary of State may by regulations amend paragraph 1 of Schedule 1 so as to add, modify or remove a reference to an offence or a description of offence.(10) Regulations under subsection (9) may make consequential amendments to this Act.(11) A statutory instrument containing regulations under subsection (9) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”(2) Section 22A of that Act (other interpretation, etc) is amended in accordance with subsections (3) and (4).(3) In subsection (3), after “order” insert “or regulations”.(4) After subsection (3) insert—“(3A) An order or regulations under this Part—(a) may make different provision for different purposes;(b) may make consequential, supplementary, incidental, transitional, transitory or saving provision.””Member’s explanatory statement
This amendment amends the Football Spectators Act 1989 to enable the list of relevant offences in Schedule 1 to that Act to be amended by regulations.
96C: After Clause 164, insert the following new Clause—
“Football banning orders: requirement to make order on conviction etc
(1) In section 14A of the Football Spectators Act 1989 (banning order made on conviction of an offence), for subsections (2) and (3) substitute—“(2) The court must make a banning order in respect of the offender unless the court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so.(3) Where the court does not make a banning order it must state in open court the reasons for not doing so.”(2) Section 22 of that Act (banning orders arising out of offences outside England and Wales) is amended in accordance with subsections (3) and (4).(3) In subsection (4), for the words following paragraph (b) substitute—“must make a banning order in relation to the person, unless subsection (5) applies.” (4) For subsections (5) and (5A) substitute—“(5) This subsection applies if—(a) it appears to the court that the conviction of the corresponding offence in a country outside England and Wales is the subject of proceedings in a court of law in that country questioning the conviction, or(b) the court considers that there are particular circumstances relating to the corresponding offence or to the person which would make it unjust in all the circumstances to make a banning order.(5A) Where the court does not make a banning order on the ground mentioned in subsection (5)(b) it must state in open court the reasons for not doing so.”(5) This section does not apply in relation to an offence committed before the day appointed by regulations under section 178(1) for its coming into force.”Member’s explanatory statement
This amendment amends the Football Spectators Act 1989 so that a court is required to make a football banning order on a person’s conviction of a relevant offence unless there are particular circumstances which would make it unjust to do so. It also makes equivalent provision in relation to a person convicted of a corresponding offence overseas.
Amendments 96B and 96C agreed.
97: After Clause 164, insert the following new Clause—
“Women’s Justice Board
(1) There is to be a body corporate known as the Women’s Justice Board for England and Wales.(2) The Board is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property is not to be regarded as property of, or held on behalf of, the Crown.(3) The Board must consist of 10, 11 or 12 members appointed by the Secretary of State.(4) The members of the Board must include persons who appear to the Secretary of State to have extensive recent experience with women in the criminal justice system.(5) The Board has the following functions, namely—(a) to meet the particular needs of women in the criminal justice system;(b) to monitor the provision of services for women in the criminal justice system;(c) to advise the Secretary of State on—(i) how the aim in subsection (5)(a) might most effectively be pursued;(ii) the provision of services for women in the criminal justice system;(iii) the content of any national standards the Secretary of State may see fit to set with respect to the provision of such services, or the accommodation in which women are kept in custody; and(iv) the steps that might be taken to prevent offending by women;(d) to monitor the extent to which the aim in subsection (5)(a) is being achieved and any standards met;(e) for the purposes of paragraphs (a) to (d) above, to obtain information from relevant authorities;(f) to publish information so obtained;(g) to identify, make known and promote good practice in— (i) meeting the particular needs of women in the criminal justice system;(ii) the provision of services for women in the criminal justice system;(iii) the prevention of offending by women;(iv) working with women who are, or are at risk of becoming, offenders;(h) to commission research in connection with such practice;(i) with the approval of the Secretary of State, to make grants to local authorities and other persons for the purposes of meeting the aim in subsection (5)(a) and the provision of services to women in the criminal justice system, subject to such conditions as the Board considers appropriate, incl uding conditions as to repayment;(j) to provide assistance to local authorities and other persons in connection with information technology systems and equipment used or to be used for the purposes of the aim in subsection (5)(a) and the provision of services to women in the criminal justice system;(k) to enter into agreements for the provision of accommodation for women in the criminal justice system, but no agreement may be made under this paragraph in relation to accommodation for women in the criminal justice system unless it appears to the Board that it is expedient to enter into such an agreement for the purposes of subsection (5)(a);(l) to facilitate agreements between the Secretary of State and any persons providing accommodation for women in the criminal justice system;(m) at the request of the Secretary of State, to assist in carrying out the Secretary of State’s functions in relation to the release of offenders detained in accommodation for women in the criminal justice system; and(n) annually—(i) to assess future demand for accommodation for women in the criminal justice system;(ii) to prepare a plan setting out how they intend to exercise, in the following three years, the functions described in paragraphs (k) to (m) above, and any function for the time being exercisable by the Board concurrently with the Secretary of State by virtue of subsection (6)(b) below which relates to securing the provision of such accommodation, and(iii) to submit the plan to the Secretary of State for approval.(6) The Secretary of State may by regulations made by statutory instrument—(a) amend subsection (5) above so as to add to, subtract from or alter any of the functions of the Board for the time being specified in that subsection; or(b) provide that any function of the Secretary of State which is exercisable in relation to women in the criminal justice system is exercisable concurrently with the Board.(7) The power of the Secretary of State under subsection (6)(b) includes power—(a) to provide that, in relation to any function that is exercisable by the Secretary of State in respect of particular cases, the function is exercisable by the Board only—(i) where it proposes to exercise the function in a particular manner, or(ii) in respect of a class of case specified in the order, and (b) to make any supplementary, incidental or consequential provision (including provision for any enactment to apply subject to modifications).(8) No regulations under subsection (6) may be made unless a draft has been laid before and approved by a resolution of each House of Parliament.(9) In carrying out their functions, the Board must comply with any directions given by the Secretary of State and act in accordance with any guidance given by the Secretary of State.(10) A relevant authority—(a) must furnish the Board with any information required for the purposes of subsection (5)(b), (c) or (d) above; and(b) whenever so required by the Board, must submit to the Board a report on such matters connected with the discharge of their duties as may be specified in the requirement.A requirement under paragraph (b) above may specify the form in which a report is to be given.(11) The Board may arrange, or require the relevant authority to arrange, for a report under subsection (10)(b) above to be published in such a manner as appears to the Board to be appropriate.(12) In this section “relevant authority” means a local authority, a chief officer of police, a local policing body, a local probation board, a provider of probation services, a clinical commissioning group and a local health board.(13) Schedule (Women’s Justice Board: further provisions) has effect.”Member’s explanatory statement
This new Clause makes provision for the establishment of a “Women’s Justice Board”, along the lines of the Youth Justice Board. The drafting closely follows the form of the provisions establishing the YJB in the Crime and Disorder Act 1998.
My Lords, the amendments in this group propose the establishment of a women’s justice board, along the lines of the Youth Justice Board. I am grateful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Bennett of Manor Castle, for adding their names.
The drafting of the two amendments remains as it was in Committee, and closely reflects the wording of the provisions in the Crime and Disorder Act 1998 establishing the Youth Justice Board. When we debated these amendments in Committee, on 17 November, they enjoyed widespread support from everyone, except the Minister. The diversity and unanimity of the support we received, I suggest, speaks volumes. Indeed, the support from the Labour Party was unqualified. The noble and learned Lord, Lord Falconer, said:
“We on this side of the Committee strongly support these excellent amendments”.—[Official Report, 17/11/21; col. 327.]
He spoke of the need to give real drive to the movement to further the needs of women within the criminal justice system.
No one disputes that the Youth Justice Board has been a resounding success. It has concentrated effort on recognising and addressing the special needs of young people within the criminal justice system. It has diverted many away from involvement with the system, and offered help and support to those who have been convicted and sentenced, both with community sentences and in custodial settings. The figures speak for themselves: in the last 15 years, the number of under-18s in custody in this jurisdiction fell by about three-quarters, to well under 800 now.
The establishment of a women’s justice board could, we believe, achieve similar success for women, by concentrating effort and resources on helping women who come into contact with the criminal justice system, diverting them from custody, improving the effectiveness of community sentences for women, increasing their use in consequence, and building ways of offering women offenders specialist support with the special issues and difficulties that they face. In Committee we debated those at length.
We also considered the appalling effect of custody on women and their children. The harsh truth is that 19 out of 20 children whose mothers are imprisoned are forced to leave their homes. All the evidence is that those children are themselves more likely to become involved in crime, more likely to suffer from mental ill health and to fail at school, and less likely to find stable employment as young adults—all to the detriment of society at large. The Minister, replying in Committee, disagreed with the proposition that there is a crisis of confidence in women’s justice. That is not the view of the overwhelming majority of experts and those working in this area, who are all deeply troubled by the lack of specialist support and consideration for women in the system.
It is true that, as the Minister said, we have the female offenders strategy, which started in 2018, and the Advisory Board on Female Offenders. The Ministry of Justice is doing work in this area, but it was working in the area of youth justice before 1998, and that did not obviate the need for the Youth Justice Board.
The Minister said in Committee, and repeated when we met the other day—I am grateful to him for the time and care that he has taken, as he always does, to consider the arguments on this issue—that the key point, from the Government’s point of view, was that we do not have a separate criminal justice system for women and girls, as we do for young offenders. As he put it, there is no separate legal framework; women are dealt with as part of the adult offender population. He drew a distinction, for that reason, between women’s position in the criminal justice system and that of young offenders, whom the law treats differently from adults.
I am afraid I do not follow that logic. It seems to me that it contains a non sequitur. The Government accept that women, like young offenders, have special needs in the criminal justice system. The Minister himself spoke of women having particular needs which we needed to identify. I say we need to do more than to identify them; we need to address them. He spoke of the prevalence of mental health issues, of the number of women survivors of abuse—I took it that he was referring to both sexual and physical abuse—and of the closer link among women offenders between drug and alcohol abuse and reoffending than exists for male offenders.
The Minister did not speak in Committee about the particular family issues faced by women in the system—but the effects of custody on the children and families of women offenders are devastating. We have heard about them, in particular, in the debates on the amendments proposed by the right reverend Prelate the Bishop of Gloucester on primary carers. It is no answer to the need for special attention to women’s needs in the criminal justice system to say that women are subject to the same criminal law as men. That fact, of itself, does nothing to address those special needs.
The Minister raised in Committee the issue of the time needed to establish a women’s justice board, but if we could achieve, in 23 years, anything like the same improvements as the Youth Justice Board has achieved in that time, that would be swift progress indeed. He also spoke of the cost implications of establishing a women’s justice board. That does not allow for the substantial savings that would follow from keeping even a few women out of custody, with the knock-on social costs of taking children into care, and the social costs that follow from women’s involvement in the criminal justice system, particularly when they receive custodial sentences.
There is simply no genuine and convincing answer to this proposal. I urge the Government simply to accept that establishing a women’s justice board would be the most effective, and the most promising, way to achieve all that they themselves say that they wish to do for women who find themselves entangled in a system that lamentably fails to address their particular difficulties. I beg to move.
My Lords, I support the amendment, because there is a real problem at the heart of criminal justice, which leads to the dissatisfaction that women feel about the justice system. We have created our system around a notion of gender equality that followed on from many years of using the male pronoun, “he”, with the person at the heart of the criminal justice system being a male agent. We then decided that we could not have that any longer, and that the way forward was gender neutrality. But of course gender neutrality is to a large extent a fiction. We know that that neutrality—creating some sort of supposed equality in criminal justice—actually creates further inequality. To treat as equal those who are not yet equal creates only further inequality. I want to emphasise that: it creates further inequality to pretend that we now have equality between the sexes. That is why I feel—although I know it is never comfortable for Governments to take ideas from elsewhere—that having such a board is a necessary part of addressing the great public discontent about the system and the way it deals with women.
I support the idea of a board that looks specifically at women in prison. We know that the majority of them have mental health issues and that their dependency on drugs and drink often derives from backgrounds of abuse: having been brought up in families where abuse was prevalent, or having themselves been at the receiving end of abuse. Understanding women in prison, how they themselves almost invariably have been victims of crime, is one of the ways in which we will progress the system. The Government should adopt this idea.
We need to concentrate on addressing what happens when women go to prison, because often they lose their accommodation and their children are taken into care. The disruption of everything that matters to them is so great that it is very difficult to repair. I therefore support the amendment. It is worthy of this House’s consideration and it is regrettable that it has been dismissed out of hand. There is a problem at the heart of this: you cannot move from inequality to equality simply by saying that there is equality now.
My Lords, I strongly support this amendment. Noting the success of the Youth Justice Board, as the noble Lord, Lord Marks, did, I venture to suggest that many of the problems of women in the criminal justice system would disappear if there was such a board, and the establishment of women’s offending teams.
My Lords, I add my wholehearted support to this amendment. I am very grateful to the noble Lords, Lord Marks and Lord Ramsbotham, and the noble Baroness, Lady Bennett, for their continued commitment to women in the criminal justice system. As bishop to prisons and president of the Nelson Trust, I am acutely aware, as I have said so often, of the need for a gendered approach to justice. The noble Baroness, Lady Kennedy, has just put that very powerfully.
While men and women need to be treated with equal justice, equality is not about sameness. Women are caught up in a criminal justice system that has been designed around men, and there needs to be a gendered lens. As we have heard already, many, many women are more likely than men to be primary carers or victims of abuse or exploitation. When they are given a prison sentence, they are more likely to be given a very short one, often far from home. I do not want to repeat things that have been said so many times in Committee and on Report but, having lost the amendment on primary carers earlier on during Report, I am very grateful to noble Lords for bringing forward these amendments, which will go a long way towards ensuring that we get the same outcomes. I am therefore wholeheartedly glad to support these amendments.
I rise briefly to add my voice in support of the amendments. I accept that the Youth Justice Board has been an enormous success, and that is primarily because it addresses two separate problems to deal with youths. One is the causes and reasons why they offend and the other is the need for their rehabilitation into society. Although, for reasons that are necessary for the trial of youths, they need a separate system, the underlying reason for the Youth Justice Board applies equally to women, in that there are specific causes of offending, the particular vulnerability, the particular issues they have with mental capacity in certain areas, the specific crimes to which they have been subjected and, above all, domestic abuse.
Moreover, it is plain that the kind of rehabilitation that women need is different. They need much more support in integrating them into the community, but they also need not to be treated or dealt with at centres. I warmly welcome what the Ministry of Justice has done and set forth in its strategy. The difficulty is that although there have been numerous reports about what is required—the report of the noble Lord, Lord Farmer, for example, and the many reports of the Prison Reform Trust—what is needed is delivery. Delivery is key to this, and that is why I warmly support this amendment.
In considering the issues relating to women’s justice and the commission I chaired on justice in Wales, it was plain that the Welsh Government were taking a separate and distinctive strategy towards female offending. The difficulty there, however, was delivery. It is delivery that has been the success of the Youth Justice Board and would, I believe, be the success of a women’s justice board. I therefore warmly support the amendment.
My Lords, I too warmly support this amendment. Like most criminal lawyers, I have often visited women’s prisons and I must tell your Lordships that they are shattering and disturbing places. The sheer amount of human damage that one encounters in women’s prisons is very disturbing. My main reason for supporting this amendment as strongly as I do is precisely the delivery aspect to which my noble and learned friend Lord Thomas has just referred. Something has to be done to persuade the Government, and all of us, I suppose, to focus on the processes that are leading women—mostly damaged women, with children, who themselves are victims of serious crime—into these places. Without a way to focus on this as a public policy that can deliver some change, nothing will change. I strongly believe that the proposal in this amendment, if adopted by the Government, could lead to some desperately needed change.
My Lords, I too support this amendment. It seems to me that the case for the amendment is made plain by the functions of the proposed board, as set out in subsection (5). The functions include meeting the particular needs of women in the criminal justice system; monitoring the provision of services for women; obtaining information from relevant authorities; publishing information; identifying, making known and promoting good practice; commissioning research in connection with such practice; and providing assistance to local authorities and other associated purposes. Is the Minister really disputing that there is a vital need for all of that to be done, and by a body dedicated to that purpose?
My Lords, I was pleased to attach my name to these two amendments, and I thank the noble Lord, Lord Marks of Henley-on-Thames, for leading on them. The case has already been clearly made and I will not speak for long, given the hour, but it is worth looking back at the history of this. I looked it up and found a House of Lords Library note from 25 January 2008, referring to a debate drawing attention to the case for setting up a women’s justice board. In 2014, there was an amendment to the legal aid and sentencing Bill seeking to do the same thing. We are often accused of proposing novel ideas that, we are told, we need to go away and think about, but that argument simply does not apply in this case.
The noble Baroness, Lady Corston, produced an enormously important report well over a decade ago that made a huge number of recommendations, most of which have not been implemented. This really is another way, as several noble Lords, particularly the noble and learned Lord, Lord Thomas, have said, of getting at the problem of implementation. We have been talking about how the criminal justice system is failing women for a very long time, and it really is now time to take action. I will finish with a quote from Baroness Howe of Idlicote, who has now retired from your Lordships’ House. She said, back in 2008:
“I must say that I have become tired of seeing this matter brought to debate again and again”.—[Official Report, 31/1/08; col. 805.]
Surely it is time for action.
My Lords, it is a pleasure to speak in this debate because I have been making speeches on this topic for 12 years. I believe, if memory serves, that I was the Front-Bench speaker in the other place who proposed the amendment to the LASPO Bill. It is quite extraordinary. I think it is now 22 years since this was first suggested and, as others have said, we have had the Corston report. We cannot have a debate on women in prison without reference to my noble friend Lady Corston—Jean Corston—and the work that she has done. The idea of a women’s justice board has been around for so long because it is such a good idea. There is so much evidence of the impact, and probably the savings, that it would make, should we take that path.
There is a long-accepted problem—and I know the Minister accepts that there is a problem—with the failure of the criminal justice system properly to address the needs of female offenders. This leads to poor reoffending rates and devastation for families, with children often bearing the brunt. The social and economic cost is enormous. Women make up only 4% of the prison population and are still too easily overlooked in policy, planning and investment decisions for the reasons that my noble friend Lady Kennedy outlined so well. Female offenders are different from male offenders: they have different health needs, including pregnancy, miscarriage, breastfeeding and menopause. We know that these issues are neglected, and we know the failure to tailor provision for women affects reoffending rates.
The frustration is that the Government agree with all this, yet they seem constantly to fail to move the dial. Unfortunately, according to the excellent work done by the Prison Reform Trust, fewer than half, I think, of the commitments made in the Government’s Female Offender Strategy, which was published in 2018, have been met so far. We know that community sentences can be more effective than short prison sentences, yet the use of community sentences is dropping—it has dropped by two-thirds since 2010. Community provision for women needs to be so much better, and the quality everywhere needs to improve. There are many excellent projects, but provision is way too patchy. One of the functions of a women’s justice board, like the Youth Justice Board, would be completely to transform that.
The Government’s Female Offender Strategy is not being delivered quickly enough. This leads many of us to conclude that a new lead organisation for female offenders would make the difference. Since my noble friend Lady Corston’s report, understanding of female offending has improved so much—this is a real positive—and the Government have played their part in this. I believe Ministers want to act and want female offending to improve. I hope the Minister is not just going to stand up and say “We are making progress—bear with us”, because we can all see that it is inadequate. Nothing that has been done so far is making a sufficient difference. Interventions in this space are too often short-term. They leave the fundamentals of substance misuse, mental health, housing, financial literacy and domestic violence unaddressed. We know that self-harm in women’s prisons has reached record levels. The situation is getting worse, not better. More than 20% of self-harm incidents involve women, with 12,000 incidents in 2020 compared to around 7,500 in 2016. A strategy is great, and we need a strategy, but we need leadership to ensure that delivery takes place. A women’s justice board would provide the strategic framework to identify and prioritise the specific needs of women within the criminal justice system.
Having been around this a few times now, the Government have previously argued that this can be achieved through ministerial working groups or strategies, and it could have been done, but the truth is that so far it has not. Many of us will have visited women’s prisons and seen what happens. One of the most upsetting things I have ever seen was when I was present for visits where women were interacting with their preschool children. The response of the women and the children was difficult for prison staff as well. That was an annual thing in that prison—once a year that happened. There is no central co-ordinating body able to identify best practice and make sure it happens everywhere. We fail on that because the Government do not have that central body. Women are going out; they are not making progress—reoffending is as bad as it has ever been. I feel we have come to a point where it is time to bite the bullet and accept the idea of a women’s justice board.
My Lords, as noble Lords will be aware, we debated these amendments in Committee. At that time, they were withdrawn without a vote, although I acknowledge that, as the noble Lord, Lord Marks of Henley-on-Thames, fairly said, those who spoke in Committee overwhelmingly supported the amendment.
I have of course listened very carefully to the various speeches and points made around the House this evening. I think it is fair to say that the arguments in support can perhaps be distilled in four points. I set them out not to make the case against me stronger but perhaps at least to reassure the House that I have understood it. First, the Youth Justice board model has been a success in reducing the number of children entering the youth justice system or custody and, therefore, it is an appropriate model to follow as the needs of women are distinct. Secondly, sometimes their needs are similar, for different reasons, to the needs of children. Thirdly, women are often victims as well as offenders and largely commit non-violent and low-level crime. Fourthly, a women’s justice board would provide the effective leadership and drive to address the particular needs of women in the criminal justice system and divert them before they come into contact with that system by preventing offending in the first place. The House should therefore be reassured that the Government and I have understood and considered carefully the case. As the noble Lord, Lord Marks, said, we have had a number of very helpful discussions about it.
The Government recognise that women who are in or at risk of contact with the criminal justice system have distinct needs that require a distinct approach, and we have acted in a practical sense on that recognition. We published the Female Offender Strategy, which sets out a comprehensive programme of work to respond to those needs, and we remain committed to its delivery. The Advisory Board on Female Offenders provides external and independent oversight of the strategy, but my ministerial colleague in the other place, Minister Atkins, has also asked officials to review the wider governance arrangements for the strategy to ensure that they are fully fit for purpose to support the work across government which is vital to deliver the strategy.
I explained in Committee why the Government are not persuaded that the Youth Justice Board is the right model for addressing the needs of women. To take up the point made by the noble Lord, Lord Ramsbotham, and others, I again underline that I agree and accept that the Youth Justice Board has done extremely good work in its area. There is a short point here, but I suggest it is very important. We have a separate youth justice system. The Youth Justice Board is a reflection of that different system. It is a specialised justice board for a specialised and separate justice system. That is not just to make the physical point that children are still maturing, so the justice system applies to them differently. It is to make the point that the youth justice system is significantly different from the adult justice system in a number of respects.
Let me set out a number of them. First, with youth justice, there is a statutory aim
“to prevent offending by children and young persons”.
That is from the Crime and Disorder Act 1998. There is a greater focus on prevention and diversion. Custody is used as a last resort, as it is in the adult system, but there is greater focus in the youth justice system because there are separate community services provided by youth offending teams, which are part of local authorities. There is a separate youth court with specially trained magistrates with different sentencing powers. There is a separate sentencing framework for children that does not apply to adults. Of course, there is also an entirely separate custodial estate, which is managed in an entirely different way.
That is before one gets to the UN Convention on the Rights of the Child, which we ratified. Article 40 covers children and justice, and expects states that are party to the convention
“to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law”.
So it is not just that children have different requirements; there is an entirely separate justice system for them.
However, unlike children in the criminal justice system, there is no separate legal framework for women. Women are managed as part of the adult criminal justice system. We have one unitary adult criminal justice system, which is gender-neutral. To pick up the point made by the noble Baroness, Lady Kennedy of The Shaws, gender-neutral does not mean gender-blind. The system is gender-neutral and applies equally to all offenders while—this is the important point—recognising their specific individual circumstances.
I assure the noble Baroness that I am entirely relaxed about taking ideas from elsewhere; when it comes to that, I am an unabashed Maimonidean. However, the fact is that the criminal justice system does look at the circumstances of women. We have far fewer women in prison. We had a very interesting debate on the amendment put down by the right reverend Prelate the Bishop of Gloucester on primary carers, in which I set out our position—and I shall not repeat it now. I absolutely accept the right reverend Prelate’s proposition that equality is not about sameness. I also accept the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that women have specific requirements because often they have been abused, and have specific requirements for rehabilitation. I agree with the noble and learned Lord and other speakers that the touchstone is delivery. However, I suggest to the House that the female offender strategy put in place by the Government takes full and proper account of the existing legal framework while setting out a comprehensive programme of work to respond to the needs of women in, or at risk of, contact with the criminal justice system.
To pick up the point made by the noble Lord, Lord Pannick, we do not disagree that the matters set out in the amendment and the work that the proposed board would do are important; the question here is how we will deliver that work. The Government believe that the matters set out there, many of which are very important, are part of and will be delivered by the female offender strategy. The question is not whether the work ought to be done; it is whether we need a new body to do it. I suggest that we do not. We have in place a comprehensive female offender strategy, which is the best vehicle to deliver that work. That is the right way to approach this, rather than going to the expense—and, yes, the time—of setting up a separate statutory body from scratch. I therefore respectfully agree with a lot of what the noble Baroness, Lady Chapman, said. We agree broadly about the aims; this is really about the method of delivering them.
The underlying point is that we have a single adult criminal justice system. We should not, therefore, have a separate women’s justice board. The Youth Justice Board is for a separate justice system. Essentially, for that reason, I invite the noble Lord, Lord Marks, to withdraw his amendment.
My Lords, I am grateful to the Minister for that response. I am reassured by the fact that he says that he understands the case, of course, but I am not reassured by the logic that drives him still to oppose these amendments.
I did not hear in what he said anything that answers the unanimous speeches around the House, which made two important points. The first is that women’s needs are different and special. As I said in my opening speech, that does not seem to me to be answered by the fact that there are different justice systems applicable to youths and to women. The second point is that this is about delivery. It is not just about a philosophy that says that we recognise those needs, or even that we identify them; it is about addressing those needs and bringing some drive to that effort. Those points were made powerfully by the noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Macdonald of River Glaven, and many others. The question put to the Minister by the noble Lord, Lord Pannick, as to what it is that the Government do not want delivered, was not answered by the Minister saying that the Government want to see this delivered, unless they are prepared to do something to achieve that delivery.
I am grateful for the support of the noble Baroness, Lady Chapman, whose speech can perhaps be summarised by her question: so far, has it been done? The answer is no. Delivery has not been achieved. We believe—the speeches from around the House show that noble Lords also believe this—that a women’s justice board is needed to achieve that delivery. For that reason, and in the hope that sufficient Members from the noble Baroness’s party will support her and us on this issue, I wish to test the opinion of the House.
97ZA: After Clause 164, insert the following new Clause—
“Sex-specific incarceration for offenders
(1) Where a person who has undergone gender reassignment is serving a custodial sentence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(2) Where a person who has undergone gender reassignment is remanded in custody on suspicion of committing an offence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(3) Where the case-by-case assessment of a prisoner who has undergone gender reassignment determines that the prisoner should not be accommodated with prisoners of the same sex as registered at birth, separate accommodation must be provided to ensure that there is no access to or association with prisoners of the opposite sex as registered at birth.(4) This section applies whether or not the person has a gender recognition certificate.(5) Within 12 months of the passing of this Act the Secretary of State must ensure accommodation is available for the purposes of this section.”Member’s explanatory statement
This amendment would provide that all prisoners should live in accommodation provided in consideration of both their sex registered at birth and their gender identity. Prisoners with the protected characteristic of gender reassignment will ordinarily be housed according to their sex as registered at birth. On a case-by-case basis, prisoners may be allocated to a specialist transgender unit, with no contact with prisoners whose sex registered at birth was the opposite of their own.
My Lords, this is my new amendment, Amendment 97ZA. I accept that my original amendment in Committee was unbalanced. I sought to protect female offenders but neglected to account for the small minority of trans women who might face unacceptable risk if housed in male prisons. My new amendment aims to afford appropriate protection to all prisoners, notwithstanding that there can be no guarantee that every prisoner will be entirely protected from risk, even within their own single-sex units. I thank my noble friend Lord Wolfson for our meetings, for the teach-in he organised and for our ongoing discussions.
Your Lordships may ask why I have brought back an amendment. The answer is that this is an important issue in its own right. The needs of women in prison matter, and these needs mandate single-sex provision. Women in prison are acknowledged to be an exceptionally vulnerable group and cannot simply choose to use a different space which remains single-sex. These reasons were discussed in the previous debate and I shall not repeat them. But this is also representative of the wider issue: the ability of legislation to maintain single-sex spaces for women. The female estate is a definitive example of a space that should be single-sex. If women in prison cannot be guaranteed single-sex spaces, no woman or girl can. Hospital wards, changing rooms, rape crisis centres, refuges and toilets in schools—I am talking about anywhere where women and girls, for reasons of dignity, privacy and safety, require single-sex spaces. I simply say this to my noble friend: if legislation is insufficient at the moment to secure single-sex provision for women in prison, all females in this country are left vulnerable.
Since my previous amendment, I have received a great many letters, from both men and women. An amendment to secure the rights of women in prison to single-sex spaces has wide support across a cross-section of the general public. Media coverage continually indicates that the general public support single-sex spaces for women and girls. Most recently, the article in the Times last week by my honourable friend Jackie Doyle-Price MP called for women’s prisons to become single-sex once more. Quite rightly, people see this as an important issue in its own right but they recognise that it is representative of the wider issue. This amendment matters not just to women in prison but for all women and girls.
The strength of evidence indicates that male and female prisoners should be housed separately. This is normal international practice, including in our own prison rules. When the policies that permit some trans women prisoners, who are of course of the male sex, to be housed alongside women in the female estate were put in place few years ago, this was essentially a live experiment. It was not grounded in data: no data demonstrated the acceptability of the impact on women in prison and on the operation of the female estate. In fact, research recently conducted on behalf of the Scottish Prison Service demonstrates that female offenders are negatively impacted when they are housed with trans women prisoners. This is notwithstanding the MoJ assertions that operational staff perceive that the policies are working well. I am pleased that the Ministry of Justice has committed to exploring opportunities for research in this area.
It was also clear from the teach-in that the MoJ believes that the ability to act differently from the current policies is constrained by current legislation. I shall not argue on this point. But if real change is to be affected, legislative change is or may be necessary. The purpose of the Gender Recognition Act was to legally recognise the “acquired gender” of transsexual people in specific sets of circumstances, in line with a judgment of the European Court of Human Rights. The GRA contains supplementary provisions in Sections 23 and 24 that empower the Secretary of State to modify the effect of a gender recognition certificate by order. The Explanatory Notes to the GRA acknowledge the possibility that, at the time of passing the GRA, there were circumstances where its unintended consequences for people might not have been realised. I suggest that the allocation of trans women prisoners with a GRC to the female estate is one such situation, and that legislation to exclude these prisoners from the female prison estate on the basis of their sex—not their gender reassignment—is both possible and warranted.
The intention of the GRA was not to render the provision of separate-sex and single-sex services for females an impossibility, to replace sex with gender or to deny the sex differences between men and women. Neither was the inclusion of gender reassignment protection as a separate protected characteristic in the Equality Act 2010. The undesirability of that should be self-evident.
A variety of concerns in respect of the previous amendment were raised by noble Lords and at the teach-in we had. These related to the vulnerability of trans women and their safety, the ability of trans women to live in their acquired gender, and the undesirability of housing trans women prisoners far from their families.
No one wishes to place any prisoner at unacceptable risk of harm. Vulnerability exists throughout the male estate, and, although female offenders characteristically exhibit particular vulnerabilities, this does not exclude the possibility that the vulnerability of some male prisoners, including trans women, may be equally high. The question for all of us is how to keep trans women safe, and that is very important. However, that is wholly separate to the question: who has the legitimate entitlement to be housed in the female estate? I accept that, for some trans women, allocation to the male estate will not be appropriate and should not happen. My revised amendment means that Her Majesty’s Prison Service will be able to assess trans women on a case-by-case basis and make decisions concerning allocation in consideration of all known risks. The wishes of the individual prisoner can be considered, as in the present policy concerning transgender prisoners.
Where a prisoner cannot be housed safely in either the general population of the male estate or with other males in a vulnerable prisoners unit, the decision can be made to house that prisoner in a specialist transgender unit. This will ensure their safety from male prisoners. Access to or association with female prisoners would not be possible. But access to women in prison is not needed to keep these prisoners safe; it is removing them from the presence of men that is required to keep them safe—not putting them in a women’s prison. I note that the MoJ states that 94% of trans women are housed in the male estate. This means that the safety of the overwhelming majority of trans women can be met in men’s prisons.
At the teach-in, the Ministry of Justice indicated that trans women may obtain a GRC while housed in the male estate. It would seem that this means that they are able to satisfy the requirement of “living as a woman” for a period of two years to the satisfaction of the gender recognition panel. The overwhelming majority of trans women are housed in the male estate, meaning that their needs as women and their rights to live as their acquired gender can be met in men’s prisons. Certainly, specialist transgender units for women, which I advocate, should be run according to the female regime and provide a canteen for female prisons.
A concern was also raised that dedicated transgender units would leave trans women far from their families. This is not an issue that affects only trans women. A 2016 Her Majesty’s Inspectorate of Prisons report found that distance from family was a common barrier to visits throughout the prison estate. Women are particularly affected. There are around 10 times the number of men’s prisons in England and Wales than women’s prisons, and female offenders are more likely to be held at a distance from their families than men. A 2019 report stated that women are typically held at distances over 20% further away from their families than men. Some women are held at considerable distances from their families: as there is no female prison in Wales, women may be held over 150 miles from home.
Prisoner allocation to specialist units may be take place, even though this results in increased distance from family. Allocation of trans women to E Wing at Downview is an example. Trans women prisoners who find themselves housed far from family should be assisted. Financial help is already available from the assisted prison visits unit to facilitate visits from close relatives and partners of prisoners who are on low incomes.
I propose expanding this provision for trans women who are held far from family. The number of trans women prisoners currently held in the female estate is very small, suggesting that the number who may be held on specialist transgender units would also be very small. The additional financial cost would therefore be modest.
The transgender prison population is growing. Data released by the MoJ at the end of last year indicate a 20% increase in the population of transgender prisoners since 2019. Their needs in prison will become more pressing. The commitment to building new estate, as outlined in the prisons White Paper, provides the opportunity to provide that transgender prisoners are properly and appropriately accommodated. New secure units can be tailored to their needs and vulnerabilities. These needs and the operation of specialist transgender units should be a focal point for the so-called future regime design, with outcome frameworks to reflect this.
As part of the trauma-responsive approach to women’s custody and the Female Offender Strategy, we must recommit to keeping women’s prisons single sex. I conclude with a quote from page 54 of the new prisons White Paper:
“We know women in prison need to address their trauma and its effects if they are to engage with rehabilitative services to turn their lives around.”
I submit that the possibility for rehabilitation of female offenders should not be compromised. Their lives are not turned around if, as was acknowledged in the FDJ v SSJ judgment, these women are living in a state of fear and anxiety. My amendment ensures that the needs for the privacy, dignity and safety of all prisoners can be met; I commend it to the House and I beg to move.
My Lords, I was very glad to add my name to my noble friend Lord Blencathra’s amendment, which he has moved with a convincing and passionate speech. I agree wholeheartedly with all that he said. My own views were reinforced in the last debate when the noble Lord, Lord Macdonald of River Glaven, talked in rather chilling terms about his visits to women’s prisons; I have heard similar accounts from others, both within your Lordships’ House and outside. It seems to me that we add to the uncertainty, mental tension, fear and all those other things if we house in women’s prisons those who are physically male but proclaim themselves female.
Of course, the safety of a prisoner, no matter their sex, is important to us all—a point that some of us touched on in Committee. I put forward then a suggestion that perhaps these people should be separately treated and looked after. After all, the aim of prison—I had two prisons in my former constituency—is often lost sight of: sending to prison is the punishment and rehabilitation is the aim. You are much more likely to get rehabilitation if the atmosphere is calm and subdued and there is not rampant fear in the prison. I believe very strongly, as does my noble friend Lord Blencathra, that the solution is to treat those who are particularly vulnerable in such a way that we take as many safeguards against their vulnerability as possible. To me, that leads logically to a solution where those who were born as women, and who are women, are in women’s prisons, and those who are still physically male are, if necessary, housed in a separate unit.
I do not buy, any more than does my noble friend Lord Blencathra, the talk of travelling great distances. Of course the aim should always be to try to have prisoners as close as possible to their loved ones and the community that they know, but it is not always possible. My noble friend Lord Blencathra referred to the fact that there is no women’s prison in Wales, and so a woman sentenced to jail there can be sent 150 or more miles away. We also have to remember that people are sent to prison because they have done something detrimental to society. It may be a heinous crime or not such a heinous crime, but having to travel a certain distance may be part of the price one has to pay.
I am a great believer in community restorative justice. I believe that we send far too many people, both male and female, to prison, and that we should be much more adventurous in the way we treat those who are not, by their physical violence, an obvious danger to society; of course, they must be securely housed, wherever and whoever they are.
I am grateful to my noble friend the Minister. I attended the teach-in on Zoom—it would have been much better if only we could all have sat down together, but it was on Zoom. I do not doubt for a moment my noble friend’s passionate commitment, but I had to say to him on the day that I was wholly unconvinced; I think he respected that.
I believe that we have to grasp this problem. Like my noble friend Lord Blencathra, I had dozens of letters and messages from those who had listened to the debate —it is remarkable how many people suffer from insomnia in this country—and who wanted to say thank you for standing up for womanhood and motherhood and for not making women feel disparaged. We went through this last year, when we had the extraordinary maternity Bill to, quite reasonably, give maternity leave to the Attorney-General. As a Bill designed to give maternity leave, it did not mention the words “woman” or “mother” until it had left your Lordships’ House, where we talked a little sense into it.
This is something that we have to grasp as a society. I believe that it is totally wrong to put women in a threatened position by having housed next to them people who are still physically male. Protect them all, yes, but, in particular, let us have regard for the women. I believe that the amendment put before us by my noble friend Lord Blencathra this evening is worthy of your Lordships’ support. If it does not receive that support tonight, this is an issue that will not go away; it is a series of big accidents waiting to happen if we are not careful. I am glad to support my noble friend’s amendment.
My Lords, I am very happy to stand up for womanhood and motherhood, but this amendment is very puzzling indeed. What it would mean is that even if a person born male has lived as a woman for 20 years, even if they have undergone sex reassignment surgery, even if they have a gender recognition certificate, and even if they are assessed as posing no risk whatever to other women, the Home Office would be obliged either to place them in a men’s prison or put them in specially segregated facilities. The former option of putting them in a men’s prison would be a disaster; it would obviously be enormously dangerous to such a person. Placing them in specially segregated facilities would be demeaning; it would fail to recognise what legislation in this country has recognised for the last at least 15 years: that people who happen to be born in the wrong sex deserve our compassion and deserve recognition of their position.
I suggest to the House that these issues are far better addressed, as they are at the moment, by Home Office policy that considers the circumstances of the individual case, rather than by broad amendments of this nature, whatever the good faith of those who put them forward.
My Lords, I warmly support what my noble friend Lord Pannick has just said. It is a great mistake, certainly at this stage in our affairs, to attempt to legislate in this matter. It may be that the prison estate will be big enough in years to come so that one can segregate by gender reassignment in special prisons of their own, but we are nowhere near that at the moment and the proper way to deal with this is to rely on the discretion that exists at present.
It is quite striking if you look at the wording of the amendment—it makes no distinction between whether we are talking about male or female prisoners, but very different situations arise depending on which of these two characteristics you are considering. It makes no distinction for the time that the person may have lived in that new assignment. It makes no distinction, either, for the extent of the surgery and the appearance of the person over time as the reassignment process takes place.
It is very difficult for those of us who, I assume, have not faced this to appreciate the intense emotional problem that people who believe that they have been born into the wrong sex undergo. It is a very emotional matter, fighting against characteristics you have acquired that you do not believe belong to you. The way you deal with it is to believe that you are actually of the sex—of the gender, I should say—that you think you should have been. That involves not only reconstruction of the body but a mentality designed entirely to live the new life, which you believe is the one you should have been given. It strikes me as very cruel, if I may use that expression, to treat these people as if they had not reassigned themselves. It is not a choice. They are driven by the characteristics they acquired which forced them into their decision.
I make these points just to emphasise that we are dealing here with a very difficult problem. The offender requires as much consideration on the grounds of safety and emotional distress as the people around them in the prison in which they are placed. Legislation is not the way to go, certainly not at the moment. I personally have complete confidence in the way that the prison authorities are dealing with this very difficult problem at the moment.
My Lords, I welcome this amendment and I commend the noble Lord, Lord Blencathra, in particular, for doggedly sticking with this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for organising the MoJ teach-in, which I found very interesting and useful. I learned a lot and I listened hard.
I thought this amendment was a nuanced and sensitive way of dealing with all the objections raised by the MoJ at that teach-in, so I am rather disappointed that the Government have not accepted the proposal from the noble Lord, Lord Blencathra, which is a bespoke amendment that protects women’s single-sex spaces while sympathetically and practically managing any challenges faced by transwomen prisoners.
The amendment might be a modest proposal—I think it is—but noble Lords may be interested to hear that it has created a huge amount of interest outside this place over the last couple of days. People on Twitter might look at #KeepPrisonsSingleSex. It has been trending for the last 36 hours. Do look because the messages on there are what I am talking about, rather than the fact that it is trending.
I want to read a few tweets that could maybe help us understand why this amendment matters. One woman said:
“I find it quite baffling that this is even up for discussion! How did we get to the point where we need a debate to include legislation to prevent something so damaging to women?”
“Women in UK prisons must not be locked in with convicted male criminals. This is an appalling failure of the duty of care the state has for female prisoners. Female prison staff must not be forced to search male prisoners. Let’s hope the House of Lords shows sense.”
I would like to think the House of Lords would as well, but maybe not. The final one I want to read out says:
“I’ve been to prison and I’m telling you now that for some women it’s their only safe space, due to abuse on the outside. Allowing anyone who claims to feel like a woman to be put in that safe space is wrong! Women, criminal or not deserve to feel safe.”
I say hear, hear to that.
I quoted that last tweet because it is important to consider what female prisoners think about this issue. At the teach-in, the MoJ—like a couple of noble Lords in their contributions—was keen to reassure us that operational staff say that policies are working well. I think we have to ask: who says they are working well and who are they working well for? I have been told by women prisoners and female prison officers I have been in contact with that they are not so happy with the arrangements and are concerned. That is why I read out that tweet. Anyway, all of this is hearsay. It is just what I am saying, or what a tweet says or what, indeed, the MoJ says about operational success. The whole area would benefit from the Government commissioning some independent research.
I wonder whether noble Lords have seen the research published in the British Journal of Criminology recently and reported in the Times. It was by Dr Matthew Maycock, a former employee of the Scottish Prison Service. It contained some valuable insights. For example, female prisoners interviewed suggested that some of those who identified as women while incarcerated with them had reverted to identifying as males again on release. The research also revealed that female officers in Scotland feel uncomfortable at being forced to do intimate body searches of prisoners who still have male genitalia.
We have heard of instances of people living for many years having transitioned. I note a freedom of information request on that. It revealed that of the 12 trans-identifying prisoners convicted of violent and sexual crimes and housed in Scottish women’s jails, only one had undertaken medical and surgical transition. Can we please remember that we are talking about something slightly different from what has been described? Unfortunately, the Scottish prison board has not used that research and has decided to develop its own policy, preferring to conduct its own research, which I am not sure about.
I know that the UK Government are keen on expert advice and I am delighted to hear that the Minister is going to look at more research. There are some great academic and independent experts out there who could shine some light on what is really going on in prison and how prison policy is working, or not, as far as prison officers and prisoners are concerned.
During the debate initiated by the noble Lord, Lord Blencathra, in Committee, and at the teach-in, I felt that all the spotlight was on the welfare and rights of the transwomen prisoners rather than on women prisoners. Whenever some of us raised the welfare and rights of women prisoners, they were almost treated as somehow secondary. For example, we were told that the female prisoners should not worry about sharing quarters with transgender prisoners because those transgender prisoners would have been through a risk assessment process. That process, however, is all about which transgender prisoners are assessed as being suitable to be managed safely on the women’s estate. This puts the focus of risk on an institution’s organisational capacity rather than the risk to women or how women might feel about it. It was also argued that this present policy is necessary because a minority of transwomen could face unacceptable risk if housed in male prisons. We have heard that again from a couple of noble Lords.
Of course, these prisoners should be protected and kept safe, but let us be honest. They are not the only group of male prisoners who face risk or violence on the male estate. Vulnerable young men also can face violent bullying, even rape or sexual assault. Look at the levels of self-harm in the male estate. It is such a problem that suicide watch is too often an everyday reality for too many frightened male prisoners on the male estate.
This of course is unacceptable. The solution should be to make the male estate safer and fit for purpose for all, perhaps tackling overcrowding, understaffing, et cetera. The solution should not be, in any instance of any vulnerable male prisoner feeling unsafe on the male estate, to move said male prisoner into the women’s estate. Let us remind ourselves that the purpose of women’s prisons is not to protect vulnerable males, and women should not be buffers or victims of the male Prison Service’s inability to protect vulnerable male prisoners.
I know that some noble Lords may be feeling uncomfortable that I am using the word “male” to describe transgender women—such is the muddle that we have got into in conflating sex and gender. I was doing that to emphasise their sex, rather than to be offensive or cause any problems, but such is the weight of coercive control and political pressure around identity politics that it can be difficult sometimes to state biological truth—and the biological truth is that sex and gender are distinct. Sex is recognised in law as the basis of women’s rights. The prison estate is separated according to sex. Unless the Government are advocating mixed-sex prisons, women should have the expectation that they will not be locked up or housed with males.
Any male who wishes to transition is free to do so. In a tolerant society I would expect our approach to be, “Wear what you want, change your names and pronouns as you like and, of course, express your gender identity”. However, none of this changes someone’s sex, and people should not have expectations of the same rights as women. If any trans prisoners are mistreated in the male estate, prison authorities should punish perpetrators and protect the victims, of course. But we need to untangle this humane response from the often-bullying demand that we deny biological reality or that the rights of transgender women can be used to sideline women’s rights to single-sex provision—an important and hard-fought-for right which I as a woman am not prepared to sell out just for political expediency or because it is unpopular. If necessary, special provision should be made for transgender prisoners, of course, and maybe the details, as people have described them, are not what one would want. However, an attempt at resolving this in a humane way is why this amendment is so important. It is a practical and pragmatic solution for transgender prisoners who feel unsafe on the male estate, but it does not force women to give up their rights, or compromise women and same-sex provision on the women’s estate.
My Lords, I rise to speak against this amendment. We should remind ourselves that when we talk about trans women and trans men, we are talking about men and women who have faced very difficult choices about their identity and whom they believe themselves to be. Once they face that choice and make the decision, the transition is a very lengthy process and, again, it is not undertaken lightly because, as we have heard, so often it leads to gender reassignment.
I occasionally go on Twitter. I have read the tweets and received messages from people who, in relation to what we are discussing tonight, have said that if they thought that they were going to prison as a trans woman or a trans man, they would rather commit suicide than face what they believe would be inhumane treatment within the United Kingdom Prison Service. We have to deal with these fears. We are being asked to deal with fears on both sides of this argument, and I want us to deal with both equally. The balancing of rights always poses for us the greatest problem, but I believe that the Ministry of Justice, in its policy on assessing trans prisoners, has got it absolutely right.
It is late and we have other important work to do, so I will begin to wind up. But I wish to associate myself wholeheartedly with the comments of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick. I could go through the policy section by section stating why I believe it is right. I am not going to do that, but if your Lordships wished to return to it, I would do so.
I will finish with these reflections. This amendment, even though it has been placed in good faith and, as the mover said, with good intention, deeply concerns me because it perpetrates the stereotype of trans women and trans men as sexual predators—as a threat to other women, and trans men as a threat to the wider society. It also, as was said in debate on the previous amendment, creates further inequalities; it does not reduce them.
My Lords, I support this amendment, and the first thing I want to say is that we are talking only about men who have not transitioned to women, which is quite different.
Although we have come a long way since the 2007 Corston report to improve conditions for women in prisons, we are now failing them. Indeed, something has recently gone badly wrong. Women prisoners have a right to the security of a single-sex space. By definition, women are deprived of this security if men are admitted to their prison, including trans women prisoners of male sex, whether or not they have the benefit of a GRC. By the same token, a women’s prison is no place for vulnerable at-risk males. Prison policy must provide for the protection of everybody, and this amendment makes that clear.
How then have we allowed prison policy to be captured by a concern for the protection of trans prisoners at the cost of imprisoned women’s most fundamental rights? There is no balance or fairness in that. The answer of course is that government departments have allowed themselves to be influenced, even intimidated, by noisy and modish pressure groups, whose wilful ignorance of basic science has all the features of a cult.
I have never visited or been to a prison, but as a woman I can imagine how it must be to be incarcerated and threatened. On this note, I very much support this amendment and thank my noble friends Lord Blencathra, Lord Farmer and Lord Cormack for tabling it.
My Lords, I have visited a number of prisons, both women’s prisons and male prisons. I have also sat where the noble Lord, Lord Wolfson, sits and answered a number of difficult questions about where you house those who have transitioned, or purport to transition, usually from the male gender to the female gender. It is an incredibly difficult task that the Ministry has to perform, and it requires assessment and nuance. As a young barrister, I had the privilege of representing April Ashley, a pioneer in this field who died about three weeks ago. She changed from a man to a woman after pioneering surgery in north Africa and had lived successfully as a woman for 30 years when she was arrested by the police and thrown into a male jail. She was philosophical about the unfair charge, but less philosophical about the desperately inconsiderate approach that was shown by the police.
The noble Lord, Lord Pannick, referred to those who had lived for 20 or 30 years in their acquired gender. I am afraid this amendment would deal with that sort of situation. I know that it is well meant and it acknowledges the difficulties, but I suggest that to legislate in this area would be extremely inappropriate.
My Lords, one of the main reasons I put my name again to this revised amendment in the name of my noble friend Lord Blencathra is that I was not persuaded by the Minister’s assurances in Committee that risks are properly balanced before a trans woman is housed in the female prison estate.
First, I heard no mention of the consideration not just of physical harm coming to female prisoners but of the risks of introducing high levels of fear and anxiety by accepting male-bodied female-identifying persons into the prison. More than half of female prisoners have experienced domestic violence—we have already heard that this evening in the previous debate—the vast majority of which will surely have been at the hands of men. A case board investigating the risk that a trans woman presents will not be looking through the filter of trauma, abuse and male exploitation that many imprisoned women apply to their surroundings. I undertook several prison visits for my MoJ-commissioned review of the female estate. As was typical, I questioned a panel of prisoners. On one visit, the de facto leader, who dominated the proceedings, was obviously male and not attempting to pass as a woman. This transgender prisoner might not have been exerting sexually charged and motivated power, but there was a palpable imbalance all the same.
Secondly, Ministry of Justice policy is not in step, as we have heard this evening, with public opinion. A poll conducted by Women for Women UK found that, when respondents were asked whether intact male-bodied trans women should be housed in a women’s prison, support slumped to net disapproval of minus 20%. Contrary to public perception, the overwhelming majority of male-born transgender people retain their penis and are fully male bodied. Moreover, a 2016 meta-analysis established that less than 3% of the transgender population is undergoing any gender-affirming surgical or hormonal treatment, with the remaining 97% simply self-identifying with no modifications to their natal sex body at all.
The noble Lord, Lord Pannick, made an argument about the trans woman prisoner whom these policies are designed to protect, who may have been living in their acquired gender for many years, have had full reassignment surgery and treatment, pass perfectly as a woman and have been convicted of a minor non-violent offence, and said that to refuse to house this prisoner in the female estate would be wholly unjustified. But the statistics I have just given, and my own understanding and albeit limited experience of transgender prisoners housed in women’s prisons, lead me to ask: is this description really characteristic of the population of trans women prisoners, including those held in the female estate? This example of a transgender prisoner seems divorced from reality and from the prisoners with whom female offenders are forced to contend on a daily basis. It is perplexing why prison policy is formulated to account for a situation that may never transpire, exposing female offenders to prisoners who are very far removed from that hypothetical.
Rhona Hotchkiss, a prison governor from Scotland who, as deputy in a men’s prison, initially pushed for trans women to be housed in the female estate, became deeply concerned at how this practice played out when she became governor of Cornton Vale. A prisoner transferred from the male estate when they identified as a woman then reidentified as a man after a short time in Cornton Vale. Frustrated by the delay while the Scottish Prison Service deliberated, the prisoner threatened to rape other prisoners and staff. Hotchkiss was deeply shaken, thinking: “What woman threatens to rape other people”—a crime for which a penis is required—and “Why should we take people’s word for this? We don’t for anything else”. This to me strikes at the heart of the issue: we are giving the benefit of the doubt to people who identify as women yet have all their male hormones and physicality intact. We are giving them access to female spaces despite the benefits to and rights of women to have sex-specific prisons.
This amendment has broader implications. It speaks to the necessity of upholding the fundamental rights and freedoms of women and girls on the basis of sex, not gender, as recognised in UK and international law. This is not simply a disagreement between the Government and those of us who have spoken to the amendment. It is a difference in point of principle between the Government and large swathes of the electorate, as polling indicates. Gender does not take precedence over sex. Males do not take precedence over females. The protected characteristic of gender reassignment does not take precedence over the protected characteristic of sex.
To summarise: in the prison context, male hormones and a male sex organ surely present considerable risk to vulnerable women, for the varied reasons I have given above, which include perceived threat to mental safety and actual threat of domination and exploitation, not just the objective risk of physical and sexual harm. I support my noble friend’s amendment.
My Lords, I refer to my interests in the register and want to make it clear that I am not expressing any opinion on the merits of this particular amendment. But, because the debate has ranged far and wide beyond the amendment, and because there appears to be some misunderstanding in the House as to what the amendment is, I hope that, when the noble Lord stands to speak to this amendment, he will clarify two important factors.
I wonder whether he would tell the House whether housing a trans woman holding a gender recognition certificate on the male estate would be unlawful, as that woman is legally a woman. That is quite an important distinction, and it has not come out. There is clearly a misunderstanding there. The second point I would like him to clarify is whether housing a trans woman on a male estate, or a trans man on a women’s estate, could be unlawful as it could amount to discrimination.
My Lords, perhaps I might amplify, somewhat more bluntly, the points made by my two noble friends, and indeed the noble Lords, Lord Faulks and Lord Cashman. I have been to prisons as a member of the Koestler Trust, trying to take arts in there, and one of the things that struck me—and in a way the arts were a release for this—was the fevered testosterone. We have heard about it from both sides. I ask noble Lords to imagine, just for one moment, what would happen to somebody incarcerated in a male prison who already appears—if I may use the word—effeminate, and who may moreover have been sexually adapted to being a woman. I cannot even begin to think how that person would be targeted in a male prison. We need to think very carefully about that, whatever the merits of the amendment moved by the noble Lord, Lord Blencathra.
My Lords, I draw attention to my interests as declared in the register. I find myself somewhat perplexed by this debate and the amendment. My noble friend Lady Meyer said that we were talking only about men who had not transitioned—but I do not think that the amendment says that. It is clear in referring to
“a person who has undergone gender reassignment”.
So there appears to be some misunderstanding about what the effect of the amendment would be, and I wonder what the problem is that we are trying to fix. After all, my noble friend Lord Blencathra himself said that the number of transgender women in the women-only estate was “very small”.
We know that in practice the vast majority of transgender prisoners are already held in prisons which match their sex registered at birth. The small number who are not held in such places have been risk-assessed. As the noble Lord, Lord Pannick, pointed out, that risk assessment would count for nothing in relation to transgender women because the effect of this amendment would be to say that there are no circumstances, irrespective of risk, in which such women, who may have been women for some time, may be held in the women-only estate.
It does not matter that the authorities believe that they pose no risk whatever. It does not matter that the numbers that we are talking about are actually very low. What matters to those who tabled this amendment is that the law should say that they should never be held in such a wing. That is in principle wrong.
It seems to be the sense of the whole House that people should be held according to the appropriate accommodation after a risk assessment. That might well mean that trans women are not held in the women-only estate. It might well mean that trans men are not held in the male-only estate, but that it is better that there is a risk assessment and they are held in the appropriate place.
The effect of this amendment is to prescribe, because those who tabled it think they know better. That, in the end, is the decision that we are confronted with. It is a decision about whether we are to be guided by ideology or pragmatism and, I would suggest, compassion.
It was said in advancing this amendment that a reason to accept it is that, absent it being passed, no places could be safe for women, not just in prison, but beyond the prison estate. How can that be? How could this amendment, were we to pass it, suddenly make all other places for women safe? It was also said—
I wanted to clarify whether, if the proposal has an impact on prisons, what impact it might have on all women. What is at issue is the protection of single-sex facilities—places that are only single sex. That is a very important principle—no matter how small the numbers are in this instance—about which there is concern. I am clarifying why people say that, and not just in this House—this is a widespread concern.
I am grateful to the noble Baroness. I think we can agree that it is important that women should be safe. The Equality Act provides exemptions in a number of scenarios, including in relation to women-only spaces outside the prison estate to ensure that. It allows the prison authorities to make the right judgments about where it is appropriate to place people. The safety of people is put first, and so it should be.
It has been suggested that a reason to pass this amendment is because of the media coverage that this debate has excited, and that outside this place there is a tremendous wave of anger we need to pay attention to. Of course, if people’s fears are provoked and if media campaigns suggest that women cannot be safe, there will be such fervent outrage, but that is not a reason for us to depart from the facts. The facts do not lend support to this approach, which places ideology above pragmatism. I therefore urge the Government not to accept this amendment.
My Lords, I really did not want to speak today, because, whatever I say, I am going to get abuse, but I have been incensed by some of contributions. I point out, in an absolutely non-specific way, that the majority of speakers have been male, and they have spoken against the amendment. Two women have spoken for the amendment, because they perceive there is a problem. My party’s policy is that trans men are men and trans women are women, and I do not have a problem with that, but there are occasions when women in women’s prisons experience sexual predation by men who have falsely self-identified as women. The noble Lord, Lord Cashman, said that we are saying that all trans women are sexual predators. We are not saying that—of course not.
Will the Minister clarify whether trans men go to male prisons? My understanding is that they do not, because they would not be safe. What we are talking about here is keeping people safe. Vulnerable people of all kinds, whatever trans identity or sexual identity they have, should be kept safe. Clearly, prisons are the worst possible places to keep people safe; they are a nightmare. This Government are increasing the number of prisons. They are not trying to reduce the prison population and make our prisons safer; they are adding to the problem. Do trans men go to male prisons? Have there been cases where men have falsely self-identified as women and predated sexually on women? I have had emails and letters from women who have been abused by men who have falsely self-identified as women. What can we say to those women? We cannot say, “This is an ideology and we’re trying to look good”; we have to be serious about people who are abused, whether they are male or female, or trans men or trans women.
I would not vote for this amendment, because it is too hardline. I accept the issue of safe accommodation—that seems very sensible; I do not see it as demeaning at all. Prisons are demeaning; safe accommodation sounds very safe to me.
Only men in this debate have spoken against the amendment. Why do men think that is okay? I do not understand. They are ignoring the fact that some women are predated upon. Sometimes those women may not be telling the truth—I have no idea, but I rather suspect that they are. Please can we just think about the vulnerable people and stop being so ultra-sensitive and supposing that we are all getting at everybody. I am absolutely fed up with this debate, and I hope this is the last speech.
My Lords, it will not be, because this woman disagrees with this amendment. I speak as a woman who cares deeply about the physical safety of women. One of the things I find most objectionable about the campaign which has been run in the media for the past couple of years is the assumption that those of us who are women and who stand as allies with trans people do not care, because I do not believe that is the case at all.
It would be very tempting at this stage to answer some of the wide-ranging points which have been made about, for example, polls with leading questions, misinterpretations and mis-statements of the law, but I shall not do that. I shall simply stick to the facts that this House should look at when it comes to a decision on this matter.
The noble Lord, Lord Blencathra, spoke about an entitlement of prisoners to go to an estate. There is no such entitlement. The noble Baroness, Lady Jones, talked about instances where self-identifying male prisoners had predated on women. That has happened, but my understanding is that it has not happened since the implementation of the policy which has been operational in the Prison Service since 2016 and was updated in 2019.
There are historical cases, which are trotted out all the time by people who wish to disparage trans people. Let us be absolutely clear what the current policy that is operated in our prisons is:
“A proper assessment of risk is paramount in the management of all individuals subject to custodial and community sentences. The management of individuals who are transgender, particularly in custodial and AP settings, must seek to protect both the welfare and rights of the individual, and the welfare and rights of others in custody around them. These two risks must be considered fully and balanced against each other … Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custody”.
My understanding, from talking to prison officials, is that not only is there no entitlement for a prisoner to be held in an estate, but that the risk assessment includes an assessment of whether somebody is attempting to be transferred into an estate in order to perpetrate further crimes. If they are, it is held as a contra-indication.
I agree absolutely with the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick. What we have now is a policy, as the noble Baroness, Lady Falkner, said, that does protect to the full the human rights of individuals, but also balances them with the safety of everybody—that includes the staff in prisons as well; let us not forget them. The noble Lord, Lord Blencathra, is therefore putting to us an amendment that is not based on evidence and is a retrograde step. I urge noble Lords to reject it.
My Lords, I do not intend to repeat the arguments that other noble Lords have made and those that I made in Committee; they are in the official record. Existing legislation and procedures, properly applied, are sufficient to ensure the safety and well-being of all prisoners and staff in our prisons in relation to transgender prisoners. I am sure that the noble Lord the Minister will confirm that.
Because I have said, in answer to a suggestion on Twitter, that I felt that the existing risk-based approach was best, I was sent a direct message on Facebook from somebody I have never heard from before saying, “Leave women’s rights alone you nasty little misogynist. We see you loud and clear. Trans rights simply means male rights. Enjoy your irrelevance MRA bigot”. Whatever MRA stands for, I have no idea. Of course, as the noble Baroness, Lady Fox of Buckley, has said, we need to consider the rights of women—of course we do—but transgender people also have rights, and their rights need to be balanced. The best way to do so is on a case-by-case basis.
The noble Baroness, Lady Meyer, and the noble Lords, Lord Cormack and Lord Farmer, talked extensively about transgender people who had not undergone gender reassignment surgery, or transgender women who are still physically men. There is nothing at all in this amendment about the physical state of transgender people; it applies in a blanket manner to every single transgender person. The fact is that every prisoner entering the prison estate is risk-assessed to ensure that they are not a threat to themselves or others, and they are then housed or segregated on that basis. If that assessment has been wrong on rare occasions in the past, the problem was not with the system, let alone with the law; it was a problem with implementation. I understand, however—and I am sure that the Minister will confirm—that that is no longer a problem. This amendment is not necessary and we oppose it.
My Lords, I too will be relatively brief. This debate is about balancing rights and balancing vulnerabilities, and I have been following it over months if not years. Unfortunately, I did not go to the teach-in organised by the noble Lord, Lord Wolfson. However, I have been to other events on Zoom where I have spoken to prison officers and the people involved in managing the situations discussed here. It is apparent to me that there has been an evolution in the prison officers’ and governors’ approaches. I have spoken to a number of them several times. I spoke to one women’s prison where transgender units operated for a period, and the way they were operated was later changed. I have to say the governors I spoke to seemed—I do not want to use the word “relaxed”—to think that they could manage the situation. That is what I was told, and I have every reason to believe in their professionalism in dealing with an evolving situation—as we have heard from noble Lords, there is an increase in trans prisoners; the figure of 20% since 2019 was mentioned.
I have visited quite a few prisons over the last 10 years and I am always impressed by the quality of the prison staff, the governors and the prison officers. The basis of my view is that I trust them to make the right decisions. I think they are dealing with very difficult circumstances and I think that they can manage risk. As the noble Baroness, Lady Barker, said, they have policies which have evolved over a period, which include the safety of the prisoners and the staff. I was pleased to hear that during the teach-in the Minister said that he is willing to support further research into this matter. It is an evolving situation, but for my part I am content that the current complex case boards that make these difficult decisions should continue to do their work.
My Lords, this amendment relates to the management of transgender prisoners. The result of the amendment would be that transgender prisoners would “ordinarily”—and that word is used twice in the amendment—be held in a prison matching their sex as registered at birth. I will come back to that word “ordinarily” later on.
I should first record my sincere thanks to the noble Lord, Lord Blencathra, for his time. I am pleased that he found the teach-in with officials from the MoJ and HMPPS to be helpful. I am grateful also that my noble friend Lord Cormack and the noble Baroness, Lady Fox of Buckley, were able to attend the teach-in. I am conscious, from what they said then and this evening, that I did not persuade them at that time. I am not sure that I am going to persuade them in the next few minutes, but I am going to try.
I am not proposing to refer to anything said on Twitter. That is despite the fact that I think I am one of the few ministerial twitterers—or is it tweeters?—around. My tweets have become a lot duller since joining the Front Bench, but I can say that on this subject Twitter exhibits heat and no light whatsoever. I am grateful for the relative safety and sanity of your Lordships’ House.
Under the amendment, transgender prisoners who are not held with prisoners matching their sex as registered at birth would be held in separate accommodation such that they have no contact with people of their acquired gender. That is the inescapable result of the amendment. I suggest that it is unnecessary. Transgender prisoners can already be held in prisons in matching their sex as registered at birth where this is assessed as appropriate. In practice, the vast majority of transgender prisoners are already held in prisons matching their sex as registered at birth. The small number who are held otherwise have been through a rigorous multi-disciplinary risk assessment process. There is already provision, as I will explain in a moment, for transgender prisoners to be held separately from other prisoners of their acquired gender if doing so is deemed necessary.
We take the allocation of transgender prisoners extremely seriously. This is a subject which, as the last hour or so has demonstrated, arouses a lot of controversy and passion. But the approach we have put in place allows us to strike an appropriate balance—the noble Lord, Lord Cashman, put his finger on that as the right word, as it is a balance—between the safety, rights and well-being of transgender prisoners and that of all other prisoners in the estate.
I can therefore assure the noble Baroness, Lady Fox of Buckley, that we do not look at the position of the transgender prisoner only in this context. The officials who are managing the risk know the risk which can be managed, for example, in the women’s estate. They are balancing the risks and working out what the best solution is. I can also assure my noble friend Lady Meyer that neither I nor other Ministers in the department give in to what she referred to, if I took it down correctly, as noisy and modish pressure groups. If I did that, I would not be able to take much of the Government’s business through your Lordships’ House.
Under the Government’s current policy, transgender prisoners are initially allocated to a prison matching their legal gender. As the noble Baroness, Lady Barker, set out, this is the way we do it. For most transgender prisoners, this is the same as their sex registered at birth. Most transgender prisoners then remain in a prison matching their sex as registered at birth. Transgender prisoners who have not changed their gender by obtaining a gender recognition certificate are held in a prison opposite to their sex registered at birth only where that is judged appropriate by a multidisciplinary complex case board, which considers all relevant factors. Transgender prisoners who have changed their legal gender can still be moved to a prison matching their sex as registered at birth where a case board judges that to be necessary to manage risk.
To come back to the words of the amendment, it is not clear what “ordinarily” would mean in practice for those making decisions about transgender prisoners. Our current approach is robust and over 90% of transgender women in prison are held in the men’s prison estate. I respectfully agree with my predecessor, if I can call my noble friend Lord Faulks that: this is a nuanced and difficult matter. I also agree with my noble friend Lord Herbert of South Downs that this ought to be a matter not of ideology but of putting into place systems which actually work. We believe that our systems work.
The second part of the amendment suggests that a facility be created to hold transgender prisoners who are not to be held in a prison matching their sex as registered at birth separate from other prisoners. In fact, the current policy allows for this: a small part of HMP Downview, known, as the House has heard, as E Wing is used for this purpose. It allows transgender women with gender recognition certificates to be held separately and have supervised contact with other women only where a complex case board has deemed this necessary. Such a board can also recommend that a transgender woman with a GRC can be held in a prison matching their sex at birth where their risk is considered too high to be held in E Wing. All other high-risk transgender women without GRCs are placed in the male estate.
However, as we have heard, the amendment would mean placing all transgender women in the women’s estate in E Wing, even where the board had assessed them as posing a level of risk which could be managed in the women’s estate. We do not think that would be fair or appropriate, essentially for the reasons set out by the noble Lord, Lord Pannick—and, just to correct the record, when he referred to the Home Office he would now, obviously, mean the MoJ. To pick up a word which I think was used, it would be cruel to do so. I agree with the approach of the noble and learned Lord, Lord Hope of Craighead, who said that we have to be alive to all the relevant distinctions and various issues which transgender prisoners present with, and, as the noble Lord, Lord Cashman, put it, we are alive to the risk of suicide.
I appreciate my noble friend’s long-standing concerns in this area. I accept that we did not always get it right in the past. Prior to the strengthening of our approach in 2019, there were a small number of sexual assaults committed by transgender women in the women’s estate. However, we learned the lessons of that and since 2019 there have been no such assaults.
I want to make another point: even if, God forbid, there were such an assault, that would not necessarily mean that the policy was wrong. Regrettably, there are assaults in prison not infrequently, so I am not going to lay my hat on the line and say that as soon as we have an assault that means the policy is not working; that would also be a fundamentally mistaken approach. We consider the risks and put an appropriate policy in place.
To pick up the specific questions put by the noble Baroness, Lady Falkner of Margravine, it is not unlawful to hold trans women with GRCs in the men’s estate; there are already powers to do so. Trans women are routinely held in the men’s estate and trans men are routinely held in the women’s estate.
I think I have answered all the questions that have been put to me so I shall end on this point. A number of noble Lords have put to the Government that there is public disquiet about this issue. We have put in place a policy that we think provides for the proper management of transgender prisoners and the proper protection of all women in the women’s estate. I am not going to make any apology for putting management and protection first and what is said to be public opinion—whether on Twitter or anywhere else—second. I am conscious that also in our prisons are people who have been found guilty of the most heinous crimes, such as sexual violence against children, and we do not manage those prisoners by the way that public opinion might suggest they be managed. A proper criminal justice system takes account of the considerations that I have set out. For those reasons, I invite my noble friend to withdraw the amendment.
My Lords, it is normal to say when winding up that it has been an interesting debate. This one has certainly provoked more interest than I had anticipated. I thank my noble friends Lord Cormack, Lord Farmer and Lady Meyer, and the noble Baronesses, Lady Fox and Lady Jones, for their contributions.
I start with the contribution from my noble friend Lord Herbert. I do not do anti-social media—things like Twitter and so on. I am not motivated to move this out of ideology, nor because of what the media say; I am motivated to do it because I have been approached by women in prison who, rightly or wrongly, are afraid for their safety. It is right to say that it is only a small number of trans women in prisons but there are a large number of women who are afraid of them. They may be wrong to be afraid, but it is in their interests that I am working to try to make sure that they no longer have that fear.
The noble Lord, Lord Pannick, said that my amendment would mean that transgender prisoners should either be stuffed into the male estate or put into some ghastly specially segregated facility. He made it sound like something the apartheid regime would invent. That is exactly the current MoJ policy: all transgender prisoners coming into the prison estate start off in the male estate. I am not inventing that; it is the current policy, as my noble friend has said. Some 90% of trans women prisoners stay in the male estate and then some are moved to the women’s estate. They are moved to a specially segregated facility called E wing at Downview. I merely suggest in my amendment that the facilities of E wing at Downview should be extended to house more transgender prisoners.
I think the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Pannick, are acting under the impression that the vast majority of these prisoners have spent a long part of their life as trans women—that they have had hormone replacement therapy, have had operations and have been living as women for years. That is not the case; as we have seen from Scotland, only one in 12 has. We do not have the figures for England because, understandably, they are confidential, but the anecdotal evidence is that there is no one in our prisons in England with a GRC who has gone through that process, so they are not those who have lived their lives as women for 20 or 30 years.
I say to the noble and learned Lord, Lord Hope, that, if the Government were to go down my route, I perfectly well accept that a system could be built in where someone who has had hormone replacement therapy, has had surgery and has been living as a woman for X number of years may qualify on a risk-assessment basis to classify as a woman, not in biological terms but in terms of being sent to prison.
I say to the noble Lord, Lord Cashman, that it is quite wrong to categorise this amendment as stigmatising trans people as a particularly violent class. That is not the case. I made absolutely clear in my speech that many trans women prisoners could not stay in the male estate because the male prisoners would be violent towards them; they are equally or more capable of violence.
I accept that the court said that what the Prison Service is doing is lawful. On the narrow point of law considered by the court, that is correct, and one would hope that the MoJ would not have a policy that deliberately broke the law. The point of issue here is not ideology but that what is lawful and what is morally right part ways. I urge the MoJ to accept my solution, which lets trans women prisoners live their lives in prison in a safe space, and women theirs. I simply do not understand why the Lib Dems, the Labour Party and some of my own noble friends now dislike women so much that they are resolutely opposed to defending their hard-won rights. I can see how the Government have blundered into this hole, but at least I see signs from them that they have now stopped digging.
I am not going to be successful today, but I say to all my noble friends on the Front Bench, in all departments, that this policy of downgrading the rights of biological sex women is heading for the scrapheap of history. It is not on the side of science, logic, morality or common sense, and everyone outside the political bubble we are in knows that. The battle for common sense and the rights of women will intensify. I conclude by suggesting that all my noble friends and all Ministers should read the excellent article in the Times last week written by my honourable friend Jackie Doyle-Price MP. She said, inter alia:
“Sex is biological and immutable. Gender is social. The two things are distinct. And by conflating sex with gender we have created an inevitable conflict between rights based on sex with those assumed by someone with a transgender identity … We can be inclusive without compromising the rights, dignity and privacy of women.”
Those are wise words. Jackie Doyle-Price is on the side of common sense and history.
I beg leave to withdraw my amendment, not because I am wrong but because I cannot win in the numbers tonight.
Amendment 97ZA withdrawn.
Consideration on Report adjourned until not before 9.22 pm.