Commons Reasons and Amendments
That this House do not insist on its Amendment 58, to which the Commons have disagreed for their Reason 58A.
58A: Because it is premature to confer new search and seizure powers on the Food Standards Agency until the accompanying accountability arrangements, including in respect of the handling of complaints about the exercise of such powers, have been determined.
My Lords, I will also speak to Lords Amendments 89 and 146, and Amendments 114 to 116, which are in this group.
Noble Lords will recall that Amendment 58, put forward by the noble Lord, Lord Rooker, would confer a power on the Secretary of State, by regulations, to apply any provisions of the Police and Criminal Evidence Act 1984 to the investigation of offences by officers of the Food Standards Agency’s National Food Crime Unit. As I set out during the debate on Report, the Government recognise the serious nature of food crime and the importance of empowering the National Food Crime Unit to investigate these offences independently, so that its specialist knowledge is put to best use and the burden on the police is reduced. We support the principle behind the noble Lord’s amendment and recognise his concern on the likelihood of another food safety scandal.
However, it remains the case that there is further work to do before we can move forward with legislation. Before proceeding with an extension of police powers to the National Food Crime Unit, we would need reassurance that what is proposed is necessary and proportionate and that suitable accountability arrangements will be in place, including in respect of the investigation of complaints.
Specifically, we will need to work with the National Food Crime Unit, the Independent Office for Police Conduct and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on establishing a formal independent oversight framework for the NFCU’s exercise of these powers and the potential for the NFCU to be brought under their respective jurisdictions, as the Gangmasters and Labour Abuse Authority has been. This is likely to require other legislative changes in addition to that provided for in Amendment 58.
Given that we are dealing with intrusive powers of the state, I am sure that noble Lords will understand that we must ensure that these necessary oversight mechanisms are in place in tandem with conferring certain police powers on the NFCU and not legislate for these separately as an afterthought. These are complex issues that will require detailed consideration and I know that noble Lords would not want the Government to confer intrusive powers on the NFCU without also putting in place the arrangements for use of these powers to be properly and independently scrutinised and for any misuse of powers to be dealt with swiftly and appropriately.
We are committed to working with the Food Standards Agency and its sponsoring department, the Department of Health and Social Care, to take this work forward, as we recognise that these legislative changes are in the long-term interest of all those concerned with combating food crime. The Health Secretary has agreed that the Food Standards Agency should publicly consult on the question of additional investigatory powers later in the spring, which will allow a broad spectrum of views to inform and enhance the development of these proposals. I know that the noble Lord, Lord Rooker, and other noble Lords want to make progress with this issue, but I hope that this House will agree with the other place that it is premature to legislate in this Bill and that additional time is needed to get the package of legislative changes right.
Turning to Lords Amendments 89 and 146, I commend the noble Lord, Lord Best, my noble friend Lord Young of Cookham and other noble Lords who have campaigned with such determination and, I might add, so effectively for the repeal of the Vagrancy Act 1824. The Government agree that the Act is antiquated and no longer fit for purpose. That is why we have brought forward amendments in lieu to consign this outdated Hanoverian statute to history.
However, as my noble friend Lady Williams indicated on Report, we must balance our role in providing essential support for the vulnerable with making sure that we do not weaken the ability of the police to protect communities who play an important role in local partnership approaches to reducing rough sleeping. We must ensure that the police have the tools that they need to effectively respond to behaviour that impacts negatively on communities and to protect all individuals.
Therefore, although the Government are committed to repealing the Vagrancy Act in full in England and Wales, these provisions will be commenced only once we have suitable replacement legislation in place. As the Policing Minister indicated in the debate in the Commons, it is our intention to commence the repeal within 18 months of Royal Assent. As a first step, we intend to consult on this issue in the coming months.
In the meantime, we will deliver a bold new rough sleeping strategy, which will set out how we will end rough sleeping, building on recent success in ensuring that rough sleeping is prevented in the first instance and is effectively responded to in the rare cases where it does occur, but also ensuring that our police have the ability to intervene where needed to keep people safe.
Finally, the House will recall that Amendments 114, 115 and 116 seek to specify matters to be addressed in the report on the operation of the pilot for serious violence reduction orders and to provide for the national rollout of SVROs to be conditional on a parliamentary vote. I appreciate the case that the noble Baroness, Lady Meacher, and other noble Lords have made and agree that the pilot must be robust and its evaluation thorough. The assessment of the pilot will be conducted by an independent evaluator and the Government will consider thoroughly the findings of the report on pilot before any decision is made to roll SVROs out across England and Wales. The report will be laid before Parliament. However, commencement regulations are not normally subject to any parliamentary procedure and, although we are not bound to follow the precedents in this regard, the Government remain of the view that this approach should not be changed for SVROs.
However, we accept that the Bill can and should say more about the evaluation of the pilot and the content of the report on its outcome. Amendments 116A and 116B agreed by the Commons are directed to this end. These amendments specify a non-exhaustive list of matters that must be addressed in the report of the pilot. They include information on the number of offenders with an SVRO; information about the offences that were the basis for application for an SVRO; information about the exercise by constables of the powers in Section 342E of the Sentencing Code; an assessment of the impact of SVROs on people with protected characteristics within the meaning of the Equality Act 2010; an initial assessment of the impact of SVROs on reoffending rates of those who are subject to an SVRO; an assessment of the impact on offenders of being subject to an SVRO; and information about the number of offences committed under Section 342G of the Sentencing Code and the number of suspected offences under that section that have been investigated. This a comprehensive list and, as I indicated, it is not intended to be exhaustive.
We have listened and acted. I hope that the noble Baroness, Lady Meacher, will agree that the Commons amendments in lieu respect the spirit of her amendments. For all those reasons, I invite the House to support the Motions in my noble friend’s name. I beg to move.
Motion A1 (as an amendment to Motion A)
Leave out from “House” to end and insert “do insist on its Amendment 58”.
My Lords, contrary to what we have just heard, this issue was not discussed in the House of Commons when it was sent there. The Minister said about three or four sentences, which I will refer to in a moment.
This is a piece of enabling legislation, which will save hours of parliamentary time and slotting for parliamentary time in due course. I am reminded of the late Alf Morris; once when someone said to him, “We’ll kick that into the long grass”, he asked, “How long is the grass?” and the answer came back: “Can you see the giraffe?” That is what I am trying to avoid.
Amendment 58 seeks to place the new section after Section 114B in the Police and Criminal Evidence Act 1984. Section 114B(1) states:
“The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of labour market offences conducted by labour abuse prevention officers.”
That was the bit that the Government put in the PACE Act to help over exactly the same problem with the gangmasters. Amendment 58 is taken from subsection (1) of that part of the legislation.
In a public presentation last Friday of the Food Standards Agency’s new five-year plan, the current chair, Professor Susan Jebb, said:
“We are pursuing greater powers for the National Food Crime Unit”.
This amendment does just that. There is no pressure on timing. The Secretary of State “may” act. It is pure enabling.
During Oral Questions in February last year, I raised the issue of food-related crime and the resources devoted to it. The then Minister, the noble Lord, Lord Bethell, pointed out that the FSA constituted the National Food Crime Unit in 2014 and that Ministers were in dialogue about increasing its powers. In a supplementary answer, he went further and said that
“its investigatory powers could be enhanced and its impact improved. That is the view of the Government, industry and the police”.—[Official Report, 22/2/21; col. 614.]
So what is the problem? We have had dialogue for over a year and have got nowhere. Ministers have been too slow on this.
The Food Crime Unit’s work is about tackling serious organised or complex cases of food crime. The original assumption when the unit was set up, which was after my term at the FSA, was that 10 full-scale investigations could be managed by the crime unit in a year. Data from the first quarter of 2020 shows that more than 30 operations were opened, in addition to 40 pre-existing ones.
The Food Crime Unit and the FSA can already use the powers in RIPA and the covert human intelligence sources legislation and it can also access the PNC and ANPR. But in key respects it cannot get into serious cases without the support of hard-pressed police officers and local government, and delays owing to competing higher-risk police priorities have already proven detrimental to a number of Food Crime Unit investigations.
The unit needs the powers in PACE to go direct to the courts rather than have the police doing it at one remove. The officers from the Food Crime Unit are in a position to answer questions from the Bench about the application that police officers drafted in at the last minute, unfamiliar with the case, cannot. I have to say that, in my experience, the police have never taken food crime seriously. That was my experience at MAFF from 1997 to 1999. The police admit that it is not a high priority. Therefore, if food crime is to be taken seriously, the unit needs the powers.
There have been well-documented cases where the police have been unable, unavailable or reluctant to apply for warrants on behalf of the unit. There have been delays while the unit had to wait for police officers to become available. Exactly these problems arose with the gangmasters authority and the Government acted, as I pointed out, by amending PACE. The gangmasters authority has secured the powers. I do not know all the detail today, but the gangmasters authority was run and managed by ex-police officers. In fact, I think that the first chair or chief executive was an ex-chief constable. The lack of these powers is affecting staff in the Food Crime Unit and is a real constraint.
Officers in the Food Crime Unit—I repeat what I said in January; I have not spoken to any of them—are well qualified to present cases direct to the courts. They consist of ex-police officers of very senior rank, ex-National Crime Agency officers and ex-police intelligence officers. We are not talking about unqualified people. The unit cannot do its job
“relying on the kindness of the police to lend their powers in important cases”,
as the former chair of the FSA, Heather Hancock, said.
The issue was considered by the National Audit Office in its report, Ensuring Food Safety and Standards, in June 2019. It said in paragraph 13:
“The regulatory system lacks the full range of enforcement powers to ensure businesses supply safe food.”
It went on to say that the Food Crime Unit
“does not yet have the statutory enforcement powers it needs to investigate … such as powers of search and seizure.”
That is what this is about: getting a warrant to do that work without having to queue up. The FSA wants the powers, the National Police Chiefs’ Council agrees that it should have the powers and the NAO agrees. The Government imply support by answers they have given.
I have worked in both the Home Office and the FSA over the years and the grapevine tells me that there is a big reluctance in the Home Office to acquiesce to a Back-Bencher initiating change. This a silly and not adult politics. The amendment is in effect a framework for the Government to build on. There is no need to queue for valuable parliamentary time. It does not require them to act now but it saves us from having to queue later.
There was no discussion in the Commons on the issue. On 28 February, the Minister, Tom Pursglove, after agreeing that
“food crime is a serious issue, costing billions of pounds each year,”
described Amendment 58 as putting
“the cart before the horse”.—[Official Report, Commons, 28/2/22; col. 803.]
The Minister, not I, said that food crime is costing billions of pounds a year. It makes you wonder why we are hanging about all this time with the Government having dialogue.
Speaking of horses, has anyone wondered why no court action was taken over the horsemeat issue in 2013? Thank goodness it was not a food safety issue, although we did not know that at the time. No company has ever sued another on the issue. Why? The answer is to avoid washing the dirty linen in public. This shows how vital it is to have an independent regulator, as industry cannot be trusted to do it itself.
Although the FSA is a government non-ministerial department, it has independence from day-to-day control of Ministers. From my experience, Ministers of all parties —I am the only FSA chair who has experience of Ministers from both Labour and Tory Governments—do not like it when they cannot pull the levers. As such, the FSA and its work by evidence and science—that is legally required in Section 1 of the Act that set it up on behalf of consumers—operating in an open and transparent way, is not the top of Ministers’ list for action, as Ministers do not get to pull any levers. The present Secretary of State, who answers to Parliament on behalf of the FSA, is no exception.
We have moved on from 2010, when the plan of the incoming team was to abolish the FSA. The announcement was all set for 12 July 2010—it still generates 50 pages on Google due to the briefings. The FSA has had over 20 years’ experience and is part of the fabric of generating confidence in food. It is crucial that we maintain confidence. We still get food-borne illnesses: each year, there are 15,000 hospitalisations and, sadly, food poisoning leads to the death of 150 people. We are nearly 10 years away from the horsemeat issue and there will be another one round the corner. Will we be able to move fast enough when the time comes? The clear answer is no. Therefore, we need to push these powers.
The Minister said that the FSA will consult. The FSA can consult all it likes—rightly so—but whatever the outcome of the consultation, primary legislation is needed to allow Food Crime Unit officers to use the PACE legislation of search and seizure. It is as plain as a pikestaff that we ought to pass this enabling legislation.
I make one final point to every Member of the House of Lords who has ever served as a Minister or an official. I can guarantee that each one of them will remember one occasion when they wanted—I quote myself—to save the Government from themselves. I had those moments. I recall doing a Bill with the noble Lord, Lord Bassam, when we became convinced, due to exposure in your Lordships’ House, that it would not work as planned. We blew hot and cold each day in Committee and on Report. We told the powers that be in the other place, but to no avail. It required Eric Pickles—now the noble Lord, Lord Pickles—entering government in 2010 to put that policy out of its misery. I do not need to identify it, but it is an example. We were trying to save the Government from themselves and this is another good example today.
Why wait on the issue? Send it back to the other place. The Government can then modify it and add the bits from the gangmasters clause to the back end. There is no requirement on time. It solves the problem of queueing for parliamentary time in the future and it shows that the long grass is not so long. We will then get some action, because the dialogue has gone on without any success for far too long. I beg to move.
I support the amendment from the noble Lord, Lord Rooker. It is insane that we do not have this. Food crime is complicated and difficult. Food chains are very long with no roles of responsibility. It is not like selling an egg to your next-door neighbour and then they end up sick; the egg has probably travelled 1,000 miles and nobody really gives a stuff about what happens at the other end.
There are lots of categories of food crime: illegal processing, which can mean the unapproved slaughter or ingestion of food; waste diversion, which means you send waste food back into the supply chain; adulteration, which is fake food; substitution, which is what happened in the horsemeat scandal; misrepresent-ation, which is endless and to do with marketing saying, for example, that pork has come from a happy pig when, in fact, it came from some pig reared in Poland in a miserable condition; and discount fraud. It is very common, widespread and difficult to deal with.
The fact that we bring only a tiny number of prosecutions, as the noble Lord, Lord Rooker, mentioned, is a scandal, but it is one that we can fix. The FSA has a brilliant new chair in Professor Susan Jebb, who is gagging to go and to get on top of this. It would do more than just sort out crime; it would also bring safety and responsibility. It would stop this massive dispersion of food into all different places.
The noble Lord, Lord Rooker, mentioned the horsemeat scandal of however many years ago. At that point I was working for the current Prime Minister as chair of the London Food Board. He rather jovially suggested that he and I should go up to Trafalgar Square and eat a horsemeat burger. We did not, because it probably would have got him into even more trouble than usual. However, the point is that at that moment we all saw the chains. Some of that horsemeat had passed through no fewer than 15 hands as it travelled around, each time making a little bit of money. Every moment is a moment for adulteration. I cannot understand why the Government are not happy to accept the amendment and to put it in the Bill. We would then have a much brighter future for all of us.
My Lords, I strongly support my noble friend—indeed, my very personal friend. He and I wrote the White Paper on the Food Standards Agency. It was necessary then and it was the right thing to do. The public had lost confidence in politicians of all parties and we had to create a new and independent organisation. That is what we did. Believe me, I cannot for the life of me understand why Ministers object to the proposal. It is already in legislation, so what is the problem?
The reality is that food crime is a global occupation. The European Union is concerned about it, as is the Government of Australia. In the United States of America, the Department of Justice recently fined a Brazilian company $110 million for trying to rig the beef market. For that matter, it also tried to rig the chicken market there. We need these powers to combat that level of organised and very sophisticated criminal activity in food markets. I do not know why there is any hesitation about this. If America can do it, we can. Australia is looking very closely at the activities of this same food company intervening in the Australian market. It already has two subsidiaries here in the UK. I have drawn this to the attention of the noble Lord, Lord Benyon. The reality is that, unless we strengthen the Food Standards Agency, these people will fiddle, rig, and have criminal activities in our food markets. We cannot stand by and allow that to happen. As I said at the outset, I strongly support my noble friend’s amendment. I urge noble Lords on all sides of the House to support it too.
My Lords, in his opening remarks my noble friend spoke to Amendment 89, and I hope that it is in order to introduce a more consensual note to this debate by welcoming Amendment 89. The first subsection of the new clause states:
“The Vagrancy Act 1824 is repealed.”
This shows the value of your Lordships’ House. When the legislation came to this House, there was nothing in it at all about the Vagrancy Act. But an all-party campaign, led by the noble Lord, Lord Best, who had hoped to speak to this amendment, inserted an amendment that would have repealed the Vagrancy Act in its entirety. That went back to the other place and, following a very constructive meeting with the Minister, my noble friend Lady Williams, and Minister Eddie Hughes, a satisfactory compromise was reached that is set out in Motion J and government Amendment 89, which, as I said, begins:
“The Vagrancy Act 1824 is repealed.”
My noble friend explained that there may be sections of the Vagrancy Act that need to be kept and therefore that total repeal is subject to a review, with an undertaking that it will be repealed in its entirety, subject to that review, within 18 months. I am most grateful to my ministerial friends for their constructive approach and I wonder whether the Minister, when he winds up, can say when the review that he referred to will be completed, and when we can have the assurance that there is nothing in the Vagrancy Act that needs to be kept and that, within the total span of 18 months, it will be repealed in its entirety. On behalf of all those who supported the campaign led by the noble Lord, Lord Best, I say that we very much welcome the outcome of our discussions.
My Lords, I echo the thoughts that the noble Lord, Lord Young, has just shared. I declare my interest as chair of the Manchester Homelessness Partnership board and as co-chair of the national police ethics committee, because I also wish to speak to the Motion regarding serious violence reduction orders.
I support the Vagrancy Act repeal, as I know my right reverend and most reverend friends on these Benches do, and have sought to see that included in previous Bills. I am grateful that it is now on track and I look forward to working with Ministers and others to ensure that we avoid any unintended consequences and do not simply recreate the old Act in more modern language.
On serious violence reduction orders, I am deeply concerned about knife crime. In fact, in Greater Manchester we are holding a summit on the afternoon of Friday of next week and I would be delighted if the noble Baroness the Minister could join us on that occasion, if her diary permits. As one of those who sponsored Amendments 114 to 116, I am grateful that we now have an expanded list of things that the review of the pilot must include and I am grateful for the assurances that we have heard today that the list is not exhaustive.
I still have concerns that these orders may prove unworkable, that they may put vulnerable women and girls at greater risk or that they may damage community relations with police through their disproportionate application. At worst, I think that all those things could happen, but for now I am willing to accept that the review is in good faith. Again, I look forward to seeing how the lessons learned from it will be taken fully on board and incorporated into any subsequent national rollout of SVROs.
My Lords, I will speak briefly to Motion A1. I congratulate the noble Lord, Lord Rooker, on his introduction and support his amendment. Organised food crime costs billions and the police have far more urgent priorities to deal with. Food-borne illnesses cost money in lost earnings and even in some cases result in death. In the current food shortage scenario, it is open season for the unscrupulous to take advantage and exploit the public by producing and selling adulterated food that is not fit for human consumption. They avoid prosecution while the police are completely overstretched. This amendment would assist the FSA to act to prevent future food scandals. I fully support the noble Lord, Lord Rooker, and urge the Government to accept this very sensible amendment.
My Lords, we support Motion A1 in the name of the noble Lord, Lord Rooker. Compared with other important issues that the House is considering today, it is a relatively minor one. None the less, it will save no time if we abstain, so if the noble Lord divides the House, we will support him.
On Motion J, although the repeal of the Vagrancy Act is very welcome and something for which Liberal Democrats have been campaigning for many years, it is unfortunate that the Government are still insisting on delaying the repeal of the outdated and unnecessary Act until replacement legislation is in place, as we believe that existing alternative legislation is sufficient. Unlike the noble Lord, Lord Young of Cookham, I heard the Minister say that the Government will commence, not conclude, repeal in 18 months—I wrote it down. If I am right and the noble Lord is wrong, can the Minister tell us how long it will take to repeal the Act in its entirety?
On Motion L, serious violence reduction orders will allow the police to stop and search people without any suspicion that those targeted have anything on them at the time they are stopped and searched that they should not have in their possession. It is another form of stop and search without suspicion, which is notorious for being ineffective. It is even less effective at finding weapons than stop and search based on suspicion and it is disproportionately focused on black people, even compared with stop and search based on suspicion. As a consequence, it is notorious for the damage that it causes to the relationships between the police and the communities they are supposed to help. The Government’s own impact assessment shows that these measures will disproportionately impact black communities and fly in the face of the Government’s response to the report by the independent Commission on Race and Ethnic Disparities.
The police need to work together with communities suffering serious violence to build trust and confidence and to demonstrate that they are on the side of the community—not using powers disproportionately against it, as these new powers, by the Government’s own admission, will continue to do. Even Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services says that the disproportionate use of powers against certain communities is “undermining police legitimacy”.
Like the right reverend Prelate the Bishop of Manchester, we have concerns. We believe that serious violence reduction orders are likely to make serious violence worse, as they further alienate the very communities the police need to co-operate with to identify the perpetrators. However, we have reluctantly agreed to see how SVROs, arguably a manifesto commitment, work in practice in a limited number of pilot areas. We supported an amendment in the name of the noble Baroness, Lady Meacher, on Report that would have strengthened the proposed pilot evaluation and prevented SVROs from being introduced beyond the pilot phase until a report on the pilot had been laid before Parliament and both Houses had agreed to the rollout.
The Minister has given assurances that the pilot will be independently evaluated and that the Government will not continue with the scheme if it proves, as we suspect, to be ineffective or counterproductive. The evaluation must include crime reduction outcomes and community impact assessments. Given those reassurances and the Government’s strengthening of the pilot evaluation, we have agreed with the noble Baroness, Lady Meacher, not to insist on her amendments, but we will be watching the pilots very carefully and listening to the communities affected, whose trust and confidence in the police is essential if knife crime is to be tackled effectively.
There are three issues in this group and I wish to say something about all of them. Starting with Motion A1, I thank the noble Lord, Lord Sharpe of Epsom, for sending me a copy of his letter of 22 February to my noble friend Lord Rooker on Lords Amendment 58, which relates to the Food Standards Agency. As the letter says, the amendment gives powers available to the police under the Police and Criminal Evidence Act 1984 to the National Food Crime Unit of the Food Standards Agency. However, the Commons disagreed with the amendment, giving this reason:
“Because it is premature to confer new search and seizure powers on the Food Standards Agency until the accompanying accountability arrangements, including in respect of the handling of complaints about the exercise of such powers, have been determined.”
Yet Lords Amendment 58 does not lay down a specific date or timescale by which powers available to the police under PACE have to be given to the National Food Crime Unit. It simply says:
“The Secretary of State may by regulations apply any provisions of this Act to investigation of offences conducted by officers of the National Food Crime Unit in respect of search and seizure.”
If I am right, the Commons reason suggests that the Commons and the Government never actually read the terms of Lords Amendment 58. That is surprising, since the letter from the Minister to my noble friend Lord Rooker states that
“the Government agrees in principle that these powers should be conferred upon NFCU officers in order to support their vital work tackling food crime.”
There is no argument about whether the powers should be given, but simply over when they should be given. Lords Amendment 58 would give the statutory authority to the Secretary of State to give those powers but leaves it up to the Secretary of State to decide when the time is right. So what is the problem with the amendment?
The letter from the Minister goes on to say:
“Food crime is a very serious issue and empowering the NFCU to investigate these offences independently will ensure that their specialist knowledge is put to best use and that the burden on police forces is reduced”.
Yet the Commons and the Government have disagreed the amendment. The Minister goes on to say that
“further work is required to fully work through the implications of these proposals to ensure that any exercise of police powers by a non-police body is necessary, proportionate and legitimate and that suitable governance and accountability arrangements will be in place”,
“For these reasons we have tabled a motion to disagree with Lords amendment 58”.
But Lords Amendment 58 does not say that the Secretary of State has to do it; it would simply give the Secretary of State the necessary statutory power to do it if and when the Secretary of State so wishes, which is the point being made by my noble friend Lord Rooker. Frankly, the Government really are struggling to think of a credible argument why Lords Amendment 58 should not be accepted.
The powers currently available to the Food Standards Agency under food law relate to the enforcement of regulatory matters. The NFCU investigates cases of serious crime, often involving offences such as fraud. However, the FSA’s existing powers do not sufficiently equip the NFCU to investigate these crimes fully and lawfully, and to collect evidence to the higher standard needed to prove criminal intent, without the support of partners in the hard-pressed environments of policing or local authorities.
As part of the FSA, the NFCU already has access to sensitive law enforcement powers around directed surveillance, securing communications data and the management of convert human intelligence sources. But NFCU officers have not yet been given essential investigatory powers, including the power to apply to courts for warrants to search premises and seize evidence, or to interview suspects without police officers present. The unit has to rely on the support of partners, including the police forces, to carry out these activities. This means that the courts are not hearing from the experts familiar with the cases, which can increase the likelihood that warrants are not authorised.
As I understand it, competing demands on police time have led to delays in several NFCU investigations. At present, the NFCU needs the police to go to court and swear warrants on its behalf, so investigations are delayed if the police decline or take time to do so, or if the court refuses to authorise the warrant, which is more likely if the person swearing it cannot answer questions about the case. The NFCU also needs the police to be present when warrants are executed, which can lead to delays in the unit being able to carry out searches or seize critical evidence if the police have other priorities. As I understand it, the evidence seized then needs to be taken into police custody before it can be transferred to the NFCU. These issues can and do create delay, which is a problem in running a live investigation and trying to gather evidence before it is moved or destroyed.
I understand that NFCU investigations have been impacted by all the issues to which I have referred. I am also advised that the FSA’s view is that these additional powers are essential to enable the National Food Crime Unit to properly investigate and pursue complex food crime cases. As has been said, this was also identified as a gap in its systems to keep food safe in the independent review by Professor Elliott in I think 2014 following the horsemeat scandal.
In the Commons debate on this Lords amendment, the Minister said that the chairman of the Food Standards Agency had written to the Minister for Crime and Policing on 11 August 2021, expressing concern that the existing powers of the National Food Crime Unit were insufficient for their purpose. The Minister responded in October by expressing support for the request and indicating the Home Office’s intent to work with the NFCU to find a suitable legislative vehicle.
Well, we have a suitable legislative vehicle: it is this Bill. But five months after the Minister’s reply to the chairman of the Food Standards Agency expressing support for the request, we appear to have had very little action. It is time for action now, and my noble friend Lord Rooker has made the case for achieving that objective of action by proposing Motion A1, his amendment to government Motion A: that this House
“do insist on its Amendment 58”.
I turn to the other two matters referred to in this group. First, on the repeal of the Vagrancy Act, the Government have given a concession on this, as has been said. They have brought forward their own amendment, which will repeal the Vagrancy Act. In the Commons, the Minister said the Government agreed that no one should be criminalised simply for sleeping rough and that the time had indeed come to repeal the antiquated Vagrancy Act 1824. The Minister said that the Government were planning to bring forward replacement legislation in the next Session to ensure the police had “the tools they need” to intervene where necessary. So the Government will delay commencement of the new clause for 18 months while the legislation is introduced and scrutinised. The noble Lord, Lord Paddick, asked what exactly was going to happen in the 18 months, and I, too, await an answer from the Minister on that point.
We welcome the fact that the Government have accepted the terms of this amendment and have finally decided to act. Likewise, we pay tribute, as the Minister did, to the tenacity of the noble Lord, Lord Best, and those who have worked with him on this issue—not least for ably moving the amendment and winning a vote in the middle of the night on Report, which was some achievement.
My only question follows on from what the noble Lord, Lord Paddick, said. Could we have an assurance from the Minister that this is not going to be kicked into the long grass due to the plans for delayed commencement, and that the Government will get on with improving support for those who find themselves sleeping rough on our streets?
On the issue of serious violence reduction orders, the noble Baroness, Lady Meacher, led on this on Report and we gave our support. The noble Baroness led on amendments that would strengthen the pilot of these orders, requiring it to proactively report on a number of concerns, and would require a vote in Parliament following the pilot before the orders could be brought in. The Government opposed the amendments but have brought forward Amendment 116A in lieu, which provides a non-exhaustive list of matters that must be covered in a report on the pilot. The Government say that the pilot will be robust and that an assessment of it will be covered by an independent regulator.
We are disappointed, as I said, that the Government have not accepted the reasonable amendments from the noble Baroness, Lady Meacher, on serious violence reduction orders. Prevention of crime is obviously a priority for our Benches and, I am sure, for all noble Lords in this House, and we considered this part of the Bill carefully. But the Minister is aware of our concerns that these orders may reduce trust in the police disproportionately and will not actually reduce crime.
As my colleague Sarah Jones MP said in the Commons, some years ago there was a similar scheme and knife crime prevention orders were lauded by the Government as the answer to crime. But they have not even been brought into force, presumably because they are hard to make work. What we are all trying to do is pass good law and bring into force only initiatives that actually prevent crime and protect communities. That is why the quality of the pilot is so important.
Having said that, we welcome the fact that the Government have moved slightly and included a list of areas that must be included in the assessment of the pilot, including the impact of the orders on reoffending and an equality impact assessment—of sorts. I ask the Minister whether the Government will promise a debate in Parliament after the pilot concludes. It would be appreciated if that undertaking and guarantee could be given when the Minister responds.
I am grateful to the noble Lord, Lord Rooker, for his comments and to all noble Lords who participated in this short debate. I will try to reassure the noble Lord, Lord Rooker, that we fully recognise the need to make quick progress with the consultation on extending Police and Criminal Evidence Act powers to the Food Standards Agency and then to introduce the necessary legislation as soon as parliamentary time allows.
The noble Lord very properly pushed me on a credible argument for this. I refer back to one of the paragraphs in my opening remarks: we specifically need to work with the National Food Crime Unit, the Independent Office for Police Conduct and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on establishing a formal independent oversight framework for the NFCU’s exercise of these powers and the potential for the NFCU to be brought under their respective jurisdictions. The noble Lord referred to gangmasters; that is what happened with the Gangmasters and Labour Abuse Authority. That is likely to require other legislative changes in addition to those provided for in Amendment 58. The issue is one of linked legislation. I have no doubt that the noble Lord will monitor this closely and I will ensure that he is kept informed of all developments. I hope that, on that basis, he will not press his Motion A1.
My noble friend Lord Young of Cookham asked about our commitment to commencing the repeal of the Vagrancy Act just as soon as we have consulted on and legislated for replacement legislation. The noble Lords, Lord Paddick and Lord Rosser, asked me precisely when. Perhaps it would help to clarify this if I read out what the Minister said in the Commons:
“On the undertaking that I was asked to give about the Vagrancy Act, let me say that 18 months is a maximum. If we can act faster, we will, but intensive work will obviously be required to get us there.”—[Official Report, Commons, 28/2/22; col. 855.]
My noble friend Lord Young asked about the consultation. All I can say is that it will take place this spring.
The noble Lord, Lord Rosser, quite rightly asked why the House will not necessarily have a debate on the SVRO pilot. We have done this because, subject to the Bill receiving Royal Assent, we expect the pilot to take two years, having started in early 2023. It will then take some two or three months to complete the evaluation. That timetable firmly takes us beyond the life of this Parliament. I hope that the noble Lord understands that it would not be right for me to commit a future Government or Chief Whip to provide parliamentary time to a debate on the report of the pilot. That is not within my gift or anyone’s gift. But we have said that in principle we endorse the case that has been made for such a debate and we understand the concerns. Therefore, we commit to sending all noble Lords the terms of reference for the independent evaluation of the pilot once they have been finalised and to lay a copy of those in the Library of the House.
In conclusion, I hope that, in the light of the Commons amendments in lieu providing clarity in the Bill on the matters to be addressed through the pilot and the observations about affording this House the opportunity to debate the pilot report, the noble Lord, and indeed the whole House, will support Motion L when we come to it.
I am still confused, despite what the noble Lord read from Commons Hansard. There will be consultation and replacement legislation, but will the repeal start in 18 months’ time or will the Vagrancy Act in its entirety be repealed in a maximum of 18 months? I am still not sure.
I go back to the statement that I just read: 18 months is a maximum for this issue to be resolved.
My Lords, I will make two very short points. All the issues that the Minister has talked about could be dealt with in the regulations—that is the whole point. The issue of parliamentary time is the giveaway.
From time to time, the House is fortunate to have one or more of its Members on the board of the FSA, such as the noble Baroness, Lady Howarth of Breckland, and the noble Lord, Lord Krebs, who was the founding chair of the FSA. He is tied up in committee this morning, but I have his authority to say that he will vote for this Motion. Currently, we have someone sitting in the Chamber who, as a member of the board, has inside knowledge of the crimes that the Food Standard Agency’s National Food Crime Unit is dealing with. However, because the noble Lord, Lord Blencathra, is a member of the board, he cannot speak in this debate—but he will vote for the Motion.
That this House do not insist on its Amendment 70 and do agree with the Commons in their Amendments 70A and 70B in lieu.
70A: Page 46, line 35, at end insert the following new Clause—
“Administering a substance with intent to cause harm
(1) The Secretary of State must, before the end of the relevant period—
(a) prepare and publish a report—
(i) about the nature and prevalence of the conduct described in subsection (2), and
(ii) setting out any steps Her Majesty’s Government has taken or intends to take in relation to the matters referred to in sub-paragraph (i), and
(b) lay the report before Parliament.
(2) The conduct referred to in subsection (1)(a)(i) is a person intentionally administering a substance to, or causing a substance to be taken by, another person—
(a) without the consent of that other person, and
(b) with the intention of causing harm (whether or not amounting to an offence) to that other person.
(3) In subsection (1), the “relevant period” means the period of 12 months beginning with the day on which this Act is passed.”
70B: Page 195, line 27, at end insert—
“(ka) section (Administering a substance with intent to cause harm);”
My Lords, in moving Motion B, with the leave of the House, I will also speak to Motion M. Amendment 70, originally tabled by the noble Lord, Lord Ponsonby of Shulbrede, and passed by this House on Report, would require the Secretary of State to
“establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.
As I have made clear previously, the Government share that concern about spiking, whether it is spiking of drinks or by needles, which has prompted this amendment and we are taking the issue very seriously.
In September last year, my right honourable friend the Home Secretary asked the National Police Chiefs’ Council to review urgently the extent and scale of the issue of needle spiking. We still have much to learn, as the noble Lord acknowledged at the time, but it is clear from what the police have told us that the behaviour is not exclusively carried out with the intention of perpetrating a sexual assault. Sometimes, financial crime might be a motivation. Indeed, many reported incidents do not appear to be linked to any secondary offending at all. It seems that sometimes the act might be an end in itself, yet all examples of this behaviour are serious in their impact on the victim and in the fear and anxiety felt more widely by those seeking simply to enjoy a night out.
It is also clear that we need a response that goes beyond the criminal justice system and encompasses health, education and the night-time economy. In the Commons, therefore, the Government tabled Amendment 70A in lieu, which is drafted more broadly. It requires the Home Secretary to prepare a report on the nature and prevalence of “spiking”—which, for these purposes, we are defining as
“intentionally administering a substance to someone without their consent and with the intention of causing them harm.”
The report will also set out the steps that the Government have taken or intend to take to address it. The Home Secretary will be required to publish the report, and lay it before Parliament, within 12 months of Royal Assent.
I hope that this addresses the concerns that underpinned the amendment tabled by the noble Lord, Lord Ponsonby, but in a way that enables the Government to consider the issue in the round. In addition, the Government are looking at whether creating a new offence specifically of spiking would help the police and courts to tackle the issue. If we need to take action to do this, we will not hesitate to do so.
Amendments 141 and 142 provide for bespoke new offences to tackle so-called sex for rent. We are very clear that exploitation through sex for rent has no place in society and we understand the motivation behind the amendments. However, as I previously explained, there are two existing offences in the Sexual Offences Act 2003 that can be, and have been, used to successfully prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain. We recognise the need to stamp out this terrible practice and support those at risk of exploitation. Again, on Report I set out some of the actions that we have already taken, including producing updated guidance for prosecutors and measures in the forthcoming online safety Bill to tackle harmful content on the internet.
We recognise that we need to go further. We are determined to act on the concerns that have been raised on this issue, both in your Lordships’ House and in the other place. Accordingly, we will launch a public consultation before the summer to invite views on the issue of sex for rent and, as part of this, we will look at the effectiveness of existing legislation and whether there is a case for a bespoke criminal offence. Following our commitment to undertake a consultation on this issue, the Commons disagreed with the Lords amendment by a majority of over 100.
All sides of the House share the heartfelt desire of the noble Lord, Lord Ponsonby, to do more to tackle spiking and sex for rent. We are fully committed to doing so. We will publish a report on the nature and prevalence of spiking and the actions that we are taking in response, including consideration of the case for a bespoke offence, and we will be consulting before the summer on the issue of sex for rent. In the light of these clear commitments, I invite the House to agree Motions B and M. I beg to move.
My Lords, the amendments in this group were introduced by the Official Opposition and we supported them. We welcome the Government’s undertakings in Amendment 70A in Motion B to prepare and publish a report on spiking, for example of drinks, intentionally and without a person’s consent and with the intention of causing harm, so as to establish the extent of the problem and therefore to inform what measures need to be taken to address it.
We also welcome the Government’s commitment to undertake a consultation on whether the existing law in respect of requiring or arranging sexual relations as a condition of accommodation—so-called sex for rent—needs to be strengthened. The prevalence of the phenomenon and the lack of prosecutions under the Sexual Offences Act 2003, which the Government believe covers these scenarios, indicate that such action is likely to be necessary. We are grateful to the Official Opposition, particularly to the noble Lord, Lord Ponsonby of Shulbrede, for raising these important issues and securing government action to address them.
My Lords, I declare my interest as director of Generation Rent. I will speak briefly to Motion M. Campaigners have argued consistently for a specific offence to more easily prosecute predators who seek to exploit women and men, including renters, by asking for sexual favours in return for a roof over their heads. It is disappointing that the Government did not accept the Lords amendment. It is not right that a victim has to be defined as a prostitute for justice to be served. The fact that there has only ever been one prosecution is proof that the current law is woefully inadequate.
However, movement has been made on this issue: there is recognition that it needs addressing and, of course, we welcome the public consultation as a step forward. In welcoming that, I ask the Minister—I am sure that other noble Lords will want to know the answer too—when the timetable and the terms of reference for the consultation will be published.
Regarding action against online platforms and hosts, for too long the tech firms have not been held accountable for hosting harmful and abusive content. Instead, they have been able to facilitate the exploitation of renters through sex-for-rent ads, completely without consequence. The Minister confirmed that this will be dealt with in the online safety Bill. Can she confirm that paragraphs 16(a) and 16(b) of Schedule 7 will mean that sex-for-rent ads will be classed as priority illegal content and will therefore be dealt with under the schedule? Can she confirm the sanctions that will be used to deter tech platforms from hosting sex-for-rent ads and the consequences if they continue to do so?
I appreciate that, as a Minister in a different department, the noble Baroness may not know the full detail of the DCMS Bill to answer my specific questions about sex for rent and Schedule 7, but if she could commit that she or someone else will write to me to explain exactly how the online safety Bill will deal with online sex-for-rent ads under the “Priority offences” schedule on illegal content, I would be very grateful. Will these online safety provisions be part of the public consultation or will the consultation deal solely with the criminal justice aspects of sex for rent?
My Lords, I open by thanking the noble Baroness, Lady Williams, for the way in which she introduced the two government Motions.
First, on Lords Amendment 70 in my name and the Government’s Amendment 70A, it is fair to say that the Government’s response goes wider than my original amendment. That is a good thing. It is indeed true that the Government are considering the issue in the round. Sexual motivation is not the only reason why people are spiked through their drinks or through needles; there may be any number of motivations for people doing it, so it is reasonable to look at this matter in the round and that is what the Government are proposing to do through their amendment. I thank the noble Lord, Lord Paddick, for his support on this matter.
Moving on to sex for rent, I pay tribute to my noble friend Lady Kennedy, who has played a leading role in this House in promoting Amendments 141 and 142. She showed her knowledge in this area in the questions that she put to the Minister about how this matter will be taken forward regarding the online safety Bill. She put some pertinent questions and I hope that I can be copied in on the answers regarding the timetable and whether particular aspects of the DCMS Bill will address the sex-for-rent issue.
The further concession, if I can use that word, which the Minister has made is that there will be a public consultation, which will launch by the Summer Recess. Of course that is welcome but, as she fairly pointed out, there are a number of elements to this. It is not an issue for one department or one that is easy to solve. Indeed, it is not easy to quantify, although there is no shortage of horrific examples that one can see online on any number of websites where people seek sex-for-rent arrangements.
I thank the Minister for the way she introduced the Government’s Motions. We will support them if they are put to a vote.
I thank the noble Lords, Lord Ponsonby and Lord Paddick, for their very constructive comments, and the noble Baroness, Lady Kennedy of Cradley, for her always very constructive approach in bringing these matters forward.
The point about someone having to identify as a prostitute is a really serious matter. I say again that anyone who makes a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies where a victim has on one or more occasions provide sexual services to another person in return for financial gain.
The consultation on this will be before the Summer Recess. We will write about the terms of reference once they are settled. The consultation will be confined to the case for a bespoke new offence.
On the online safety Bill and where it meets what we have been talking about, the legislation will define the harmful content and the activity covered by the duty of care. This includes illegal content and activity, harms for children and legal but harmful content, and activity for adults. The relevant offences, which are Sections 52 and 53 of the Sexual Offences Act 2003, have been included in that list of priority illegal harms in the Bill, demonstrating the importance that the Government attach to the tackling of these harms.
I hope that answers the noble Lords’ questions. Again, I thank them for their constructive work on this.
Motion B agreed.
That this House do not insist on its Amendment 71, to which the Commons have disagreed for their Reason 71A.
71A: Because police officers are already subject to a duty to cooperate during investigations, inquiries and formal proceedings and it would be premature to add to such provision pending further consideration by the Government.
My Lords, I will also speak to Motionexpand-col4 K on secure schools, which is in this group.
The House will recall that Amendment 71 would introduce a duty of candour for the police workforce. The other place has now considered this amendment and rejected the proposed duty, without, I might add, putting the amendment to a vote.
The Government take police integrity and accountability extremely seriously. As has been outlined to the House previously, in February 2020 we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020, and therefore has the force of law.
For the benefit of the House, I will reiterate the extent and focus of this duty. It says:
“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness”.
A failure to co-operate is a breach of the statutory standards of professional behaviour by which all officers must abide, and could therefore result in disciplinary sanction. I therefore suggest again to the House that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in Amendment 71, because a breach of this duty could ultimately lead to dismissal. We are reluctant to dilute the existing measures in place to compel individual officers to co-operate.
This duty to co-operate was introduced in 2020, after the issues highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel. We are keen that this duty becomes rooted within the police workforce before considering any further changes to legislation. The recently commenced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a proper test for this duty. Noble Lords will also be aware that a response to the Daniel Morgan Independent Panel and the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public bodies. Before the Government respond to these reports, it is of course imperative that the Hillsborough families are given the opportunity to share their views.
We will continue to assess the impact of the existing duty on police co-operation with inquiries and investigations. As we consider the case for a broader duty of candour for public servants and bodies, we will determine whether the existing duty is sufficient to ensure public confidence. As for timing, I can assure the House that we will set out our conclusions later this year.
Given these considerations and the decision of the elected House, I respectfully ask the House not to insist on Amendment 71.
Turning to Amendment 107, the House will recall that the amendment sought to confirm that local authorities can establish and maintain secure 16 to 19 academies, either alone or in consortia. The elected House disagreed with this amendment by a substantial majority of 190. In inviting this House not to insist on the amendment, I remind noble Lords that there is no legal bar preventing a local authority setting up an entity capable of entering into academy arrangements directly with the Secretary of State, or indeed doing so itself. This is not prevented by the Academies Act. I therefore ask the House not to insist, on the grounds that this renders the amendment unnecessary and it could have disruptive consequences for the academies legal framework.
I appreciate that existing government policy is not completely aligned with the spirit of this amendment. But I want to be positive, and recognise the expertise of the local government sector and the critical role that it already plays. Local authorities have a long-established role in children’s social care and the provision of secure accommodation for children. I should therefore highlight that, in practice, there are already important ways in which local authorities can be—and already are—involved in academy trusts, which we would certainly be open to utilising also in secure schools. Trusts can, and do, procure services from local authorities; some local authorities have established spin-out companies specifically to provide services to trusts and maintained schools alike. In principle, there would be nothing to prevent a spin-off company entering into an agreement with the Secretary of State for Education to establish an academy trust.
Our vision for secure schools is to take a new and innovative approach to the delivery of youth custody and to engage visionary, child-focused providers—many of which are charities—in the running of establishments. It would therefore certainly be possible, for example, for a charity and a local authority to come together to put forward a bid to establish a trust in which both parties could have some involvement across both the governance structure and the delivery of services.
Even now, local authorities can be involved on the governing boards of academy trusts at the policy-imposed maximum level of 19.9% representation on the member group or trust board. A forthcoming schools White Paper will say more about how the Government will be working with local authorities to enable every school to benefit from the support of a strong multi-academy trust.
It remains true, I accept, that although there is no legal barrier, the Government’s current policy is that academy trusts are not local authority-influenced companies and therefore our starting point in secure 16 to 19 academies is to mirror this position. However, to repeat a commitment that I have previously made, my department will assess in detail the potential role of local authorities in this new form of provision before we invite applications to run any future secure 16 to 19 academies.
Turning again to the amendment, I appreciate that the question was asked in Committee and I think on Report: “Why not put the matter beyond doubt and send a strong signal to local authorities?” The short answer is that the statute book should not be used as a form of signalling. It is not a method of semaphore. As a former practising lawyer, I can tell the House that when the statute book is used in that way, the result usually is to increase legal uncertainty and not to make things clearer.
Specifying that local authorities can “establish and maintain” secure 16 to 19 academies would give rise to more questions than it would answer. It would bring into question whether local authorities could run and maintain mainstream academies—a matter that, as I said, is clear already under existing law. It would create questions about whether other types of organisations that run academies presently could also run secure 16 to 19 academies.
I respectfully commend the noble Lord, Lord German, for raising this issue and ensuring that it was fully debated by both Houses. I am particularly grateful to him and the noble Lord, Lord Marks of Henley-on-Thames. He is not in his place, but I thank both noble Lords for their sustained engagement with me and my officials on the issue, which I and my officials have found extremely helpful. However, for the reasons set out, I respectfully invite the House not to insist on Amendment 107 and invite the House to agree Motion C and, in due course, Motion K. I beg to move.
My Lords, in relation to Motion C, one of the main recommendations of the Daniel Morgan Independent Panel, led by the noble Baroness, Lady O’Loan, was for the police to be subject to a statutory duty of candour, as has been introduced into the National Health Service, and Lords Amendment 71 sought to establish that. The Government with their Amendment 71A, in Motion C, claim that police officers are already under a duty to co-operate during investigations, inquiries and formal proceedings and that it would be premature to add such a provision pending further consideration by the Government.
The provision to which the Minister referred makes a lack of candour a matter for police misconduct proceedings, except in the most serious cases where a complaint is made by someone who is not a member of a police force and who is directly affected by the conduct. Whether a police misconduct investigation is held, or misconduct proceedings are brought, is a matter for the relevant chief constable of the police force concerned.
Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has today published a report in which it describes the Metropolitan Police’s approach to tackling corruption as “not fit for purpose”. Publishing the report, Her Majesty’s Inspector of Constabulary, Matt Parr, said:
“It is unacceptable that 35 years after Daniel Morgan’s murder, the Metropolitan Police has not done enough to ensure its failings from that investigation cannot be repeated. In fact, we found no evidence that someone, somewhere, had adopted the view that this must never happen again.”
That is why we need a statutory duty of candour. In the case of the issues covered by the Daniel Morgan Independent Panel, there was systemic and institutional withholding of information by the police sanctioned at the highest level. Arguably, the current Commissioner of the Metropolitan Police, who as an assistant commissioner decided to withhold essential information from the panel, would have had to order an investigation into herself under the provisions that the Minister is relying on.
The provision that the Government are relying on is not fit for purpose in the circumstances of police cover-ups, even when there is a member of a police force who is a whistleblower, because the whistleblower is a member of the police force and cannot bring a complaint against his or her own force. However, work is ongoing by the families of the victims of the Hillsborough disaster and the family of Daniel Morgan to ensure that a comprehensive, effective and legally binding duty of candour is imposed on all public institutions. Therefore, we have reluctantly decided not to insist on Lords Amendment 71.
In relation to Motion K, we are grateful to the noble Lord, Lord Wolfson, for clarifying that there is no legal barrier to local authorities setting up and running academies and for the Government’s acknowledgement of the important role that local authorities have played in the past in running secure accommodation for young offenders.
There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.
As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.
On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.
The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice
“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]
The Minister also made that point.
Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.
We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.
My Lords, I am grateful to the noble Lords who took part in this debate. I will take matters fairly briefly, given the amount of other business before the House.
On the duty of candour, I emphasise the essential point that the disciplinary system provides clear sanctions that can lead to dismissal. We should not introduce criminal sanctions for the police alone. Ultimately, the inspectorate can determine whether forces are following the guidance. We will monitor that extremely carefully.
I do not want to take up the House’s time too much on the report, which has been published in the last half an hour. My right honourable friend the Home Secretary has already issued a statement, which noble Lords will be able to find online, but my understanding is that the Metropolitan Police has 56 days to respond formally to the report. The Home Secretary will of course return to Parliament to provide a full government response once the final report and responses have been received.
I am grateful to all noble Lords for their engagement on the issue of secure schools. I have tried to set out the legal position clearly. I hope that the undertaking that I have set out will be sufficient. Again, with apologies to the House for not dealing in too much detail with the new report, because I am sure there will be other opportunities to debate it, I beg to move.
Motion C agreed.
That this House do not insist on its Amendment 72, to which the Commons have disagreed for their Reason 72A.
72A: Because pending the Government’s full consideration of the Law Commission’s review of hate crime legislation, the Law Commission has identified adding sex or gender to this legislation could prove detrimental to efforts to tackle violence against women and girls.
My Lords, I am grateful to the noble Lord, Lord Russell of Liverpool, for seeking to move the debate forward by tabling an amendment in lieu. Before I turn to the specifics of his Amendment 72B, I will say something about the wider context. The Government take the issue of violence against women and girls very seriously. The last couple of years has, sadly, seen some terrible incidents and I do not think that anyone could doubt that there is more to do.
The Government have ambitious plans in this area. We have debated them often enough in your Lordships’ House, such that I do not need to set out again everything that the Government are doing to tackle violence against women and girls, but I reiterate that this is an absolute priority for the Government. Although we might disagree on the best approach, all of us, and Members in the other place, are on the same side. All of us share the same absolute determination to do our very best to tackle these awful crimes.
I am glad that in tabling this amendment, the noble Lord, Lord Russell of Liverpool, is not pressing to add the characteristics of sex or gender to hate crime laws, making misogyny a hate crime, as it is colloquially known. I do not decry the motives of anyone who advocated that course of action but, as the Law Commission identified in its review examining the question of whether to add sex or gender to hate crime laws, this amendment is not the right course of action.
I will not repeat the Law Commission’s general recommendation against adding these characteristics through the various legal models that it examined, as I outlined during our debate on 17 January, except to quote its stark concerns. It said that,
“we have concluded that … hate crime laws”
“unlikely to prove an effective response to misogynistic offending, and may prove more harmful than helpful, both to victims of violence against women and girls, and also to efforts to tackle hate crime”.
Furthermore, the Law Commission came to its conclusion after almost three years of careful deliberation and a public consultation. The results of the latter found that a majority of both individual and organisational respondents opposed adding these characteristics to the law, including, crucially, a number of organisations experienced in the field of tackling violence against women. Every model examined to make misogyny a hate crime could not garner consensus and simply gave rise to a different set of equally negative trade-offs that might prove counterproductive.
There were considerable problems with the amendment that was passed at an earlier stage by your Lordships’ House. These arise both in broad matters of law, as highlighted by the Law Commission, and in its specific formulation. In my mind, this continues to speak to good intentions being frustrated by the reality that, on this occasion, the approach is regrettably not the right solution. That is why the other place voted by a substantial majority to disagree with your Lordships’ amendment.
On Report, the noble Lord, Lord Russell of Liverpool, suggested that your Lordships’ House should send the amendment to the other place for them to have another look, as matters such as this were better considered by the elected House. The other place has now considered the matter fully and sent back an unequivocal response.
I turn now to the issue of police recording, which is one of the main features of the amendment proposed by the noble Lord, Lord Russell, before us today. Noble Lords might recall that during the debate on the Domestic Abuse Bill I committed to asking forces on an experimental basis to identify and record any crimes of violence against the person, including stalking and harassment, as well as sexual offences where the victim perceives it to have been motivated by a hostility based on their sex.
I admit fully that I am disappointed that we have not made greater progress on this commitment. The reasons for this stem from a desire to ensure consistency across forces, which I know the noble Lord is also very keen on, and guarantee that the resulting data is reliable. A number of forces have opted in the past five years or so to take such recording forward themselves, but they do so using different terms, concepts and frameworks. For example, some forces are recording misogyny and misandry; some only misogyny. Some are recording sex, while others are recording gender identity. The inherited landscape of different local efforts makes it quite difficult and more complex than the typical hate crime data collections.
However, I can assure noble Lords that discussions with the police through the NPCC have been under way on this for some time. Our intention has always been and continues to be to harmonise the various approaches, but we need to get it right and ensure that we are getting the maximum benefit from the data that is recorded. We need to be mindful of the Law Commission’s findings in December, which said that
“several stakeholders felt that adding sex or gender to hate crime laws could help to bolster the reporting of crimes included in its scope. Whilst we acknowledge this argument, we also note that the Nottingham ‘Misogyny Hate Crime’ pilot has not been associated with increased reporting.”
With all that in mind, we need to ensure that the experimental collection is properly conceived and carefully designed. This takes time and the Government already have the legal powers they need to take it forward. Legislating on this matter will not offer a panacea to what are wholly technical questions that need resolving. We have already exercised such powers, with success, as it concerns other forms of hate crime data, making incremental but important progress in building a picture of patterns and trends.
I repeat that I would have liked to have made swifter progress; that we have not done so is certainly not through lack of effort or intent. I assure noble Lords, however, that we will continue to work with the NPCC to institute a reporting system as soon as it is reasonably possible. As soon as we have a way forward, the Policing Minister will write to all forces to disseminate this message. We simply need continuing effort; that is what I can recommit to pursuing in this House today. What I cannot provide is a specific timetable here and now. I fully recognise that this amendment is perhaps an expression of the understandable frustration about seeing results. As such, I will be sure to update noble Lords as to the progress that we are making as we go.
I turn to the other issue raised by the amendment before your Lordships from the noble Lord, Lord Russell, which concerns legislation related to a separate public sexual harassment offence. The Law Commission report touched on this and did not recommend one as such, noting that such a question was beyond its terms of reference. What it recommended was that the Government explore the possible need for one, ensuring that if it is found to be required it is also proportionate and well defined.
We have been actively considering this proposal and, as I undertook to do in a recent meeting with noble Lords, I have spoken to my colleague the Minister for Crime and Policing. As we set out in the Tackling Violence Against Women and Girls strategy last July, this is a complex area and we remain cognisant that there are arguments for and against creating a new offence. As such, we feel that it is right formally to elicit expertise and views on this topic. I am very happy to announce today that, before the Summer Recess, we will launch a consultation on whether there should be a new offence of public sexual harassment.
I repeat that the Government take the issue of violence against women and girls very seriously. We will do all we can to move the dial on tackling that violence and consider the Law Commission’s proposals in full. We will continue to drive forward solutions outside hate crime, underpinned by the VAWG strategy. As I have said, through this we have already done a wealth of work. However, on the immediate issues raised by this amendment, I hope I have been able to provide reassurance to noble Lords that we will continue to work with the NPCC and launch a consultation on a new offence of public sexual harassment before the Summer Recess. On that basis, I invite the noble Lord, Lord Russell of Liverpool, not to press his amendment and invite your Lordships to support Motion D. I beg to move.
Motion D1 (as an amendment to Motion D)
As an amendment to Motion D, at end insert “and do propose Amendment 72B in lieu—
72B: After Clause 54, insert the following new Clause—
“Intimidatory offences aggravated by sex or gender
(1) A person must not commit an act—
(a) which amounts to harassment or intimidation of another,
(b) which he or she knows or ought to know amounts to harassment or intimidation of the other, and
(c) which is aggravated by hostility towards sex or gender.
(2) For the purposes of this section, the person whose act is in question ought to know that it amounts to or involves harassment or intimidation of another if a reasonable person in possession of the same information would think the act amounted to harassment or intimidation of the other.
(3) Subsection (1) or (2) does not apply to an act if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the conduct was reasonable.
(4) A person who commits an act in breach of subsection (1) is guilty of an offence.
(5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
6 Police, Crime, Sentencing and Courts Bill
(6) An offence is “aggravated by hostility towards sex or gender” for the purposes of this section if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s sex or gender (or presumed sex or gender); or
(b) the offence is motivated (wholly or partly) by hostility towards members of a group based on their sex or gender.
(7) The Secretary of State must make regulations within six months of the passing of this Act requiring the chief officer of police of any police force to provide information relating to—
(a) the number of crimes reported to the police force which, in the opinion of the chief officer of police, fall under subsection (6), and
(b) the number of crimes reported to the police force which, in the opinion of the chief officer of police, do not fall under subsection (6) but in which the victim indicated they believed they were targeted due to their sex or gender.”
My Lords, the noble Baroness, Lady Newlove, who would have been presenting this amendment and making the argument for it—which is why on Report the precursor to this amendment became known as the Newlove amendment —is today receiving, rightly, yet another honorary degree to add to her rather large handful of them, and thoroughly deserved it is. However, she is here in spirit and if we were still able to vote virtually, she would be voting in favour.
This Amendment 72B in Motion D1 is a response to the rejection by another place of that amendment, which, in essence, argued that we should make misogyny a hate crime. The debate about misogyny—what it is and what we should do about it—was discussed at length in the passage of the Domestic Abuse Bill last spring. One result of that debate was that, in return for particular amendments not being pressed, as the Minister indicated, Her Majesty’s Government agreed almost exactly one year ago—which is also the anniversary of the murder of Sarah Everard—at the Dispatch Box to mandate all police forces in England and Wales to undertake a trial period of recording misogynistic hate crimes. That undertaking was given with an undertaking that it would begin in autumn 2021—not 2022, not 2023, not 2024 but autumn 2021. Noble Lords will not be surprised to hear that I will be returning to that subject later.
To summarise what happened in another place the other week, I will use the words of the Minister, Kit Malthouse, to summarise the Government’s view:
“On the misogyny issue, I commend the motivation behind the set of amendments that we are sadly declining. We understand people’s genuine concern about the safety of women and girls in the public sector”—
I suspect that when one is at the Dispatch Box one occasionally says things that when you read them do not make complete sense. I do not think he meant only women and girls in the public sector; I think he meant women and girls in general in public—
“and indeed we share it. We are determined to make significant inroads in this area … we cannot in all conscience support an amendment that the Law Commission and other large groups interested in this area believe runs the risk of damaging the cause of women’s safety. That puts an obligation on us to bring forward alternatives that will do something positive for women’s safety. That battle is under way, and we commit to doing exactly that.”—[Official Report, Commons, 28/2/22; col. 786.]
So today the battle recommences.
I am very glad to see the noble Baroness, Lady Kennedy of The Shaws, in her place, because I would like to recommend that all noble Lords who have not had the opportunity to do so read her report Misogyny: A Human Rights Issue, published last week by the Scottish Government. It recommends a much more proactive and focused approach to this problem than we are at the moment able to consider in England and Wales.
The working group underneath the noble Baroness agreed on a definition of misogyny to help focus its investigations and recommendations. I think it is worth reading it out for your Lordships, because it encapsulates pretty accurately what it is that we are talking about when we talk about misogyny—because, depending on who you talk to, you might get different definitions. The definition used by the group led by the noble Baroness, Lady Kennedy, is:
“Misogyny is a way of thinking that upholds the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom. Conduct based on this thinking can include a range of abusive and controlling behaviours including rape, sexual offences, harassment and bullying, and domestic abuse.”
Motion D1 is designed to focus on two key areas. First, it is a direct response to Minister Kit Malthouse’s undertaking to bring forward alternatives: we decided to bring forward our own alternative, which reinforces the commitment to ask all police forces across England and Wales to record misogynistic hate crimes. It also addresses the category of public order offences, ensuring that stronger sentences are handed down when an offence is motivated by hostility towards the sex or gender of the victim. This would allow the police and courts to take stronger action against gateway offences, which may lead on to serious violent or sexual offences if they are not properly addressed at an early stage. By bringing the treatment of these offences into line with the approach taken to racially or religiously aggravated public order offences, this amendment would enable the courts to raise the maximum sentence, allowing a range of factors to continue to be considered such as the degree of culpability and the degree of damage to the victim.
Secondly, this amendment is an opportunity to call Her Majesty’s Government to account for their failure, thus far, to deliver on the undertaking made a year ago to bring in England and Wales-wide recording of misogynistic crimes. At a meeting with the Minister and some of his advisers last week, for which I am most grateful, the experience was perplexing and somewhat frustrating. This initiative appears to be going at the pace of the slowest and most reluctant police force. In true British fashion, each force is currently reinventing the wheel in its own image and doing its own thing. Each force has different computer and database systems, most of them woefully out of date, which are incapable of talking to one another and, in some cases, to systems within the same police force.
This is not new news. It has been known for many years. Before the undertaking was given, there should have been a proper assessment of the degree of probability of it coming to pass and coming to pass in a timely manner. To commit that it would happen by last autumn was courageous and perhaps a touch foolhardy, with the benefit of hindsight. This is despite the NPCC itself being in favour of this initiative. My observation from my background in the private sector is that there appears to be a woeful lack of ownership for delivering this and lamentable project management. As I said at that meeting, if this was happening in the private sector—speaking as an ex-headhunter—had my firm been chosen, I would expect to have quite a lot of searches out to replace some of the people responsible for the initial phases of this project.
One year on since that commitment was given, 100 more women have died in this country at the hands of men. Each week brings new revelations of unacceptable behaviours and attitudes. Today, 22 March 2022, is no exception. In a newspaper that I do not normally read, because it is rather dangerously left-wing, the Daily Telegraph, a journalist called Cara McGoogan has today written about misogyny in police forces. This is in preparation for a documentary that will be on Radio 4 this evening, which is called, for reasons many of us will understand, given comments by various police forces, “Bad Apples”. For this documentary, she spoke to a dozen female serving or ex-police officers:
“They have told me male cops aren’t just assaulting members of the public—but also their own. They describe being the target of misogyny from their colleagues along a spectrum from sexist banter to bullying, domestic abuse and sexual assault, including rape.
Shockingly, they also describe a pattern in which it’s female officers who are forced out after they report this behaviour”.
Sue Fish, formerly the chief constable of Nottinghamshire Police, which in 2016 was the first police force to introduce the recording of misogynistic crime, was interviewed by this journalist:
“Within minutes of us meeting at her home in the East Midlands, she’s in tears as she tells me about the two times she was sexually assaulted by different senior colleagues—in around 1993 and 2007—one of whom was a superintendent … She didn’t report the first incident because she didn’t think anyone would believe her … Sue reported the second incident to her boss, who said it wasn’t a surprise from that officer. The officer remained in his position.”
Is it any surprise that the initiative committed to by Her Majesty’s Government one year ago is mired in obfuscation, evasion, an apparent unwillingness to take responsibility and arguments about database compatibility, when all the while more women die, week in and week out? There is perhaps a connection between the slow pace at which this initiative is proceeding and some of the attitudes evidenced in the documentary that will be on Radio 4 this evening.
This amendment asks the Government to give serious consideration to the alternative that we put forward and, at the very least, to come forward with a clear and concrete statement of intent. I am grateful for what the Minister has indicated the Government are willing to undertake. I hope that that undertaking, when it is delivered in April or May, will be taken with the degree of purpose, organisation, resourcing and ownership that is sadly needed.
Once and for all, we need to demonstrate that the recording of misogynistic crimes across England and Wales will happen. We want to know who will make it happen, how it will happen and—although it probably will not happen—when it will happen. It would be nice to know whether it will happen at a slightly faster rate than our R&R programme, because if it is anything like that I will not be around by the time these crimes are recorded. We have a sort of chicken and egg situation: we need to have reliable data about the incidence of these crimes and behaviours in order to inform the debate about how we can best create specific laws to try to address this. We cannot do one without the other. That is why I beg to move.
My Lords, I support the noble Lord, Lord Russell. I am glad that he referred to the fact that Scotland had commissioned a report on this. Indeed, the report, which I chaired the working group to complete, took the same view as the Law Commission of England and Wales, in that we did not suggest that there should be a hate crime relating to sex or gender. In fact, we felt that misogyny is different in its nature and that the hate crime framework is not an appropriate way to deal with the problem.
I voted for the amendment from the noble Baroness, Lady Newlove, because nothing else seems to be on offer at the moment in England and Wales, but Scotland is looking at the creation of misogyny legislation. That is not because misogyny should be criminalised, because ways of thinking should never be criminalised. I have said that in this House before. I spoke only last Thursday in the International Women’s Day debate, in which I described how important it is to protect ways of thinking, because in our forum internum is our creativity, imagination and the ways in which we solve the world’s problems. Unfortunately, it is also the seat of the rather negative sentiments that people might feel, such as hatred. It is the actions that flow from that way of thinking that one has to look at and see whether they are appropriately criminalised.
In this House, we repeatedly have debates about the failure to prosecute rape, about domestic violence, stalking, revenge porn and so on. These continue to be insoluble and difficult to prosecute because of the mindsets of many of the decision-makers—even police officers on the ground, those prosecuting and making decisions about prosecuting, and those within our courtrooms. Unless we deal with this way of thinking in our society, we will continue to have these problems. I say that as someone who has practised at the Bar for more decades than I care to count. I have written about this and studied it. I have spent time looking at other jurisdictions, all of which have the same problems. Misogyny is a problem at the base of all this. Unless you address it seriously, you will not address the problems of how we deal with this continuing flourishing of crime against women and girls.
I urge the Government—any Government—to address misogyny. Our world is filled with it; it is a serious problem, and the way to address it is by trying to shift the dial among those who make the decisions to make them address their own way of thinking. That is what we sought to do in the working group that worked on this in Scotland. I urge all noble Lords to read the recommendations we made, because it is a serious piece of work. It is not knee-jerk or about saying, “Let’s just draw down the hate crime stuff”, because we are talking about what happens to 52% of our population. There is hardly a woman who will not be able to describe having been harassed, spoken to in unacceptable ways, degraded, humiliated or dehumanised at some point in her lifetime. That is what women are complaining of, and it is every woman, so let us have that in mind.
I heard what the Minister said about seeking to address this seriously. The Law Commission said that it was not within its remit to look at whether there should be a public harassment offence. We decided on having a public misogyny harassment offence and did not make it simply about sexual harassment, because the harassment is not of a sexual nature for older women; it is not the saying of the gross things that we have heard about from so many women.
What has happened in our society, and the reason why this is so urgent now, is that the internet—social media—has disinhibited people to say things that they would normally keep to themselves, even if they did have those intents on some women. Even if they did want to degrade and humiliate women, they would keep it to themselves. However, the internet has allowed people to pour this stuff out and it is translated on to the street. What used to be only online five years ago is now happening at the bus stop.
I want people to have this in mind; it is not some trivial matter. Noble Lords must see the enormity of the problem now: the stuff that is said to young women coming out of student unions, pubs and clubs would make men in this Chamber ashamed of their own gender—their own sex. Something has to be done about it. It is very different from what is experienced by men, so let us not make this mad equivalence, as though men at the end of their night in the pub say to each other, “Charlie, text me when you get home.” Men do not do that, because they do not have the same fear built into them from the age of nine that somehow there is something fearful out there, and it takes male form. That is the problem for girls and women: they are brought up knowing that there is something to be afraid of.
We really have to take this seriously. I support what the noble Lord, Lord Russell, has asked us to do because it is a signal to the women out there that we take it seriously. Women came in front of our commission and said that something has to be done. It may be that, in the longer term, we will have to introduce a misogyny Bill, like in Scotland. We advocated that where there is an offence, such as assault, threatening behaviour or criminal damage, judges can enhance the sentence so that there is an aggravation. It should not be inside a hate crime Bill, because it is different.
Most men do not hate women, but somehow from boyhood they breathe in this sense of entitlement and now feel entitled to say publicly things to women that noble Lords would not believe. Women who are parliamentarians, who write in newspapers or are campaign leaders receive online and now offline the most egregious threats to be raped or killed, which put them in fear. Is it any wonder, therefore, that women do not want to take part in public life or step forward to ask for equal pay or an improvement in their status in the workplace? They are undermined in their self-confidence and self-worth. We have to do something about it.
My Lords, I disagree with this amendment, but I agree with one part, at least, of what the noble Baroness, Lady Kennedy, just said: any woman will indeed have heard the vile abuse that is spewed out online and can go offline to the bus stop, as she indicated. There is a coarsening of what is said to women, but that is my challenge: although it is vile, legislation to deal with what is said to women could well be a serious challenge to free speech.
Free speech matters because an emphasis on the cause of women’s safety could well be, and some women certainly believe so, at odds with the cause of women’s freedom and liberation. Despite everything, if we are going to say that words matter, by constantly talking about misogyny as a problem that is so rife in society we are, as I have said, in danger of frightening young women into believing that misogyny is indeed everywhere and that all men are misogynists and so on, so I want some caution here.
A definition of misogyny, despite the work that the noble Baroness, Lady Kennedy, has done in Scotland, is also very contentious. Indeed, I have talked to a variety of feminists in Scotland who disagree with the definition there. It is very difficult to pin down what we are talking about: goodness knows, we cannot even get the definition of “women” right in 2022. We do not even agree on what a woman is. I will not go round and ask Front-Benchers on all sides to give us that definition, but your Lordships will know that to get yourself cancelled, you merely have to repeat the biological definition of a woman as an adult female and you can get yourself into all sorts of trouble. I am not saying that to be provocative. I am making the point that if you are to have a misogyny definition and cannot work out what the definition of a woman is, that at least shows it is complicated.
I also think that the definition that was read out about a type of thinking—this is where I again agree with the noble Baroness, Lady Kennedy—is difficult if misogyny is a way of thinking that leads to action. We have to be careful that we do not try to criminalise ways of thinking. But if we are then going to ask the law to place extra sentences on people who are misogynists, that requires indulging in a certain amount of mind-reading if it is a way of thinking. How do you deal with that? That is a difficulty.
I also disagree with what the noble Lord, Lord Russell, said about stronger action being needed for what was described as gateway offences. When you look at what is actually being said, having gateway offences creates a danger that relatively minor offences will be treated as though they are a mere and inevitable step to the most grievous crimes, such as rape and so on. That will therefore lead to huge potential injustices. There are people who are indulging in no doubt sexist and inappropriate, or sometimes unpleasant, activities, but assuming that they will turn into a rapist, murderer or sex abuser could label a range of, essentially, young men—who have a lot to learn, goodness knows—as potential rapists. We have to be very careful.
It is not that I want reassurance from the Government. If anything, I want us to have a pause on this. It has become fashionable to feel that you have to say such things. I am as concerned as anyone about the problems with prosecutions and convictions for rape. These are discrete and important issues for us to deal with. Under the auspices of concern about misogyny, we have to be careful. If you oppose acting—or being seen to act—in relation to misogyny, I really do not want to be told that it means one is cavalier about violence against girls and women. Of course I am not cavalier about that; why would I be? But this is not a rampaging issue that threatens everyone, and it needs to be dealt with proportionately and with some sensitivity, rather than under a banner headline.
My Lords, in defending freedom of expression, which often includes offensive speech, various criteria are maintained, which largely concern the context in which the speech occurs. There are two particular aspects. The first is whether the hate speech, misogynistic or otherwise, is able to be avoided. Is there a way in which the individual can avoid the speech, for example by not turning on the radio or their text messages, or whatever it might be? The second is one that has already been alluded to by the noble Baroness, Lady Fox. It is the extent to which there is a direct relationship between hate speech, misogynistic speech, and actual harm coming to an individual woman.
The noble Baroness, Lady Kennedy of The Shaws, who is to be commended on almost everything that she does, talked about protecting thoughts. In a way, what one is doing is contradicting that by saying that if someone is thinking about delivering offensive speech that will automatically, if it is expressed, lead to action. I think there is a tiny bit of confusion here. Although I will support the amendment, there is an element of curtailing freedom of speech that we ought to be mindful of.
My Lords, recently I was going home late and I got into a cab and was chatting to the cabbie. At some point he said, “Oh, you posh young birds”. It was so inappropriate on so many levels that I did not know what to do. I did not tip him, of course. It struck me that it was not necessarily offensive—but I did object to it.
I have heard today two incredibly powerful speeches in favour of the Motion, from the noble Lord, Lord Russell, and the noble Baroness, Lady Kennedy. I do not understand why the Government have not heard this message. It is not coming from just these two people; it is coming from millions of women who experience misogyny and really do need protection. It is not enough to say, as the police often do, “Don’t wear short skirts, don’t go out after dark and don’t drink too much” and things like that. This is on a completely different level. It is about protecting women who cannot protect themselves, so I hope that the Government are listening.
I noticed that the noble Lord, Lord Wolfson, was writing very seriously during these speeches. I hope he was making prestigious notes about what was said and how important it was, and I hope the Government are listening.
My Lords, I support the amendment and thank the noble Lord, Lord Russell of Liverpool, for all his support on this issue. I say to the noble Baroness, Lady Kennedy of The Shaws: “What a powerful speech”.
I particularly want to reiterate the points made about police recording. I am really quite depressed that this amendment has had to be laid—depressed as a Conservative Peer, because I have been so heartened by the commitment that this Government have shown on the issue of violence against women and girls. But at the moment, on the issue of misogyny—it exists, it is there and is corrosive; it is huge, if you ask me—there is a lack of grip. There has also been a lack of leadership and accountability, in particular on the issue of recording, and that really matters.
It matters because we should not make promises at the Dispatch Box and not keep them. That picks away at the faith and trust we have in our democracy. I do not wish to make too big a point out of this, but it is important and we do notice it. It also matters because it helps victims to have much more faith in the system; it gives them confidence. We have heard that from chief constables who have voluntarily taken this approach on board. It matters because it helps them do their job as well. It helps them target their resources, understand where the repeat perpetrators are, and target the culture within their own police forces—which, as we know, is a huge problem.
I hope that noble Lords will support the amendment, as I will. It really matters. Misogyny exists, it is corrosive and it needs to be tackled, and this is a very thoughtful and reasonable approach.
My Lords, I rise with some trepidation as the first man to speak in the debate—sorry, after the noble Lord, Lord Russell, of course, the proposer of the Motion. Something seriously needs to be done about misogyny in society, as the noble Baronesses said. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that misogyny is not hatred of women. My understanding is that it is hatred of women who are not subservient to men and who do not allow men to do what they want because they can, because they are stronger or because they think they can get away with it.
I have to say that I do not understand the Law Commission’s assessment that having misogyny as an aggravating factor would undermine the investigation and prosecution of things such as domestic abuse and sexual violence. Racism is treated as an aggravating factor by the courts, yet black victims of domestic abuse and sexual violence are not disadvantaged by having racism as an aggravating factor. So why should women be disadvantaged were misogyny to be an aggravating factor? Perhaps the Minister can answer that question.
I agree with the noble Baroness, Lady Kennedy of The Shaws, that we must deal with misogyny in terms of the actions that have a detrimental impact on women—not the thought but the deed, not the prejudice but the discrimination against women.
Amendment 72B in Motion D1 would create a new offence of harassment or intimidation aggravated by hostility towards sex or gender, where the maximum penalty for the new offence is the same as the offence, under Section 4 of the Public Order Act 1986, of intentional harassment, alarm or distress without any aggravating factor. So there is an issue there.
There is a crisis of misogyny in society in general and in the police service in particular. Urgent, decisive action needs to be taken, notwithstanding the Law Commission’s findings. Creating a new offence, as suggested by the noble Lord, Lord Russell of Liverpool, in the form and with the penalties suggested might not be the right answer, but it is a vehicle to allow the Government to come forward with a better alternative using the Bill. We do not know when the next legislative opportunity will arise and we need to force the Government to take action now.
This urgency is reinforced by the fact that, as the noble Lord, Lord Russell of Liverpool, said, the undertakings given by the Government when we last debated this issue during the passage of the Domestic Abuse Bill—now an Act—to ensure that all police forces flag offences aggravated by hostility towards sex or gender do not appear to be happening. Even if the Government are not convinced that legislative change is needed, surely they must deliver on their commitment to ensure that the nature and extent of the problem of misogyny in society is measured by the recording of such offences by the police. Surely the Government must understand why police forces might be reluctant to record misogyny as a hate crime when there is clear evidence of a culture of misogyny in police forces. That is why they should be compelled to do so by the Government.
I am concerned that the Government, encouraged by the Law Commission, are going into reverse on the issue of misogyny, betraying women who suffer every day from male violence. If for no other reason, we should support Motion D1 and Amendment 72B.
My Lords, this has been an extraordinary debate in many ways. It has really gone to the heart of the issue. I pay tribute to the noble Lord, Lord Russell, in the way he moved his amendment.
I will start by addressing a specific point that the noble Lord, Lord Paddick, made about the way sentencing is done in courts. I speak as a magistrate who sits in London. When I sentence on a matter where there is racism as part of the sentence, I explicitly have to say in court what the uplift is because of the racist element. However, when there are other aggravating factors, be they misogyny or any other factor, such as the fact that the victim works in a public-facing way, I am not required to do that, but I can if I wish to. That is a very specific example of the difference in the way sentences deal with particular different types of aggravating factors.
I want to address some of the points which noble Lords have made and really focus on police recording. There is a history to this issue. I understand the points the Minister raised about the practical difficulties, but I thought the noble Lord, Lord Russell, had it right when he said that this seems to be going at the pace of the slowest police force. There is an opportunity through this Bill for the Government and the Minister—she is in a senior position—to show leadership and use the Bill to make concrete progress on police recording of misogynistic cases.
The noble Baroness referred to Sue Fish and Nottinghamshire Police. I consulted my noble friend Lord Coaker, who used to be a Nottingham MP, and he said that the noble Baroness’s assertion that there was no greater reporting because of the hate crime reporting mechanism in Nottingham—I think that is what she said—is a contested area. Sue Fish herself does not agree. She believes that the system she introduced in 2016 has been beneficial and we may hear more about that in the radio programme which the noble Lord, Lord Russell, referred to. So it is a contested issue, but my understanding is that Sue Fish believes it has been highly successful.
My noble friend Lady Kennedy gave an extraordinary speech. She told us about her experience in Scotland and made a very pertinent, interesting point that this is not about making it illegal to have hate thought; it is the actions that flow from that thought that the law needs to address. Other noble Lords addressed that philosophical debate, if I can put it like that. My noble friend also talked about the internet acting as a disinhibitor.
When the noble Baroness, Lady Fox, spoke about her reticence, if I can put it like that, on the type of legislation or amendment we are talking about here, my noble friend Lord Coaker said that we should just look at the mobile phones of teenage girls today to see how prevalent misogynistic abuse is. It is absolutely everywhere. I would say, as somebody who has brought up their family in London, that it is far more prevalent than racist abuse on teenagers’ phones. This is a very serious issue.
I thought the noble Baroness, Lady Bertin, also gave a powerful speech. She complained about a lack of grip and leadership. Well, her noble friend the Minister has leadership qualities; we see them every day in this House, and this is an opportunity for her to show that leadership. I look forward to the Minister’s response. We will certainly support the noble Lord, Lord Russell, if he chooses to press his Motion to a vote.
My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a very interesting debate. Part of what has been interesting for me is hearing the differing views on misogyny across the House. This goes to the heart of the difficulties of this issue. The noble Baroness, Lady Jones of Moulsecoomb, asked if my noble friend Lord Wolfson was making prestigious notes. I wondered if he was making prodigious notes, but they might be both prestigious and prodigious—I do not know.
I thank all noble Lords who have taken part. I will restate three important points that I made in my opening remarks, as well as make some further points that were asked about. First, we are still pursuing the commitment that we previously made on data recording. I quote the comments that I made this time last year:
“I advise the House that, on an experimental basis, we will ask”—
not mandate, but ask—
“police forces to identify and record any crimes of violence against the person, including stalking and harassment, as well as sexual offences where the victim perceives it to have been motivated by a hostility based on their sex. As I have said, this can then inform longer-term decisions once we have considered the recommendations made by the Law Commission. We will shortly begin the consultation with the National Police Chiefs’ Council and forces on this with a view to commencing the experimental collection of data from this autumn.”—[Official Report, 17/3/21; col. 371.]
As the noble Lord, Lord Russell of Liverpool, pointed out, that was autumn 2021. I have absolutely voiced my disappointment on that. I am pleased that the wheels are in motion, albeit moving more slowly than I had hoped. We are making some progress.
The second point is that, before the Summer Recess, we will launch the public consultation on a new offence of public sexual harassment. I think that that reinforces the point made by the noble Baroness, Lady Fox.
Thirdly, the Law Commission, having studied this issue and a variety of possible solutions, recommended against making misogyny a hate crime. I am grateful to the noble Baroness, Lady Kennedy of The Shaws, for her points. I know that that is a source of regret for some noble Lords, but we cannot ignore the firm advice of experts that legislating in this way could do more harm to women than good. No one wants that outcome.
The noble Lord, Lord Russell of Liverpool, made an interesting point about Cara McGoogan’s article in the Daily Telegraph. The points that he raised about racism, misogyny and domestic violence within the police are being looked at by the noble Baroness, Lady Casey, and Dame Elish Angiolini. I know that we will get on to Child Q this afternoon when I repeat the Urgent Question. It is not a point that I dismiss at all; we all have to get to grips with the culture of the police.
The noble Baronesses, Lady Fox and Lady Kennedy of The Shaws, talked in different ways about the internet translating into real life. Obviously the online harms Bill is coming up. I do not want to give a complete prequel to that, but in that Bill we will need to consider the balance between free speech and protecting our children, women and girls. The noble Lord, Lord Ponsonby, referred to this and, as a parent, I am glad that my children had grown up by the time these problems began to surface, but I worry for the children, women and girls of the future.
To conclude, we are continuing to explore all options to tackle violence against women and girls and we are taking forward real change to achieve that. I invite the noble Lord to withdraw his amendment and I commend Motion D to the House.
My Lords, this has been an interesting 55 minutes or so. We always seem to be at our finest when we discuss problems that a lot of people seem to agree are insoluble, which is disappointing in a way. It would be nice to talk about problems that are solvable.
I am grateful to all noble Lords who have spoken and to the three men who managed to stand up. Essentially, to some extent I apologise, as I feel I must, on behalf of many of my sex. The attitudes of an awful lot of males are a concern and are shaming. Unless more of us stand up and talk about it, it probably will not go away.
The noble Baroness, Lady Kennedy, is a pioneer in this area. I again recommend that all noble Lords read her report. When I started reading the preface, I realised that I was reading a report unlike most others I have read—and, in talking to her before we came in this morning, I discovered why: the noble Baroness wrote it herself and that does show. It is cogent, it is spirited, it is clear in its intent and it communicates brilliantly. So I recommend that more Ministers and noble Lords, when they put their names to a report, should write the preface themselves rather than get somebody else to do it. The noble Baroness’s point that what she is trying to do in her report is focus on egregious, unpleasant, aggressive and harmful actions, not thoughts, is also really important. We all think things that perhaps we should not from time to time. Mercifully, most of us do not act on them—or, if you get to my age, you probably forget them. At my age, the most important thing is to learn new things more quickly than you forget old things.
I take the point made by the noble Baroness, Lady Fox, about women’s freedom. But to suggest in some way that what we propose is potentially to label all men as misogynistic—and to send a message to all women that all men are basically misogynistic—is perhaps, might I suggest, slightly decrying the intelligence and perspicacity of members of the female sex to work out for themselves when something is genuinely misogynistic in a very unpleasant way and when it is less harmful. The noble Baroness is particularly skilled at talking about absolutes and problems. It would be great if we could move on and perhaps focus more on solutions than on the problems that are in the way of trying to find solutions.
My noble friend Lady D’Souza made an excellent point. We need to be careful that the law of unintended consequences does not lead us, in a sense, to suppress when what we are trying to do is liberate. I say to the noble Baroness, Lady Jones, that if she sees that taxi driver again I am sure she will give him a piece of her mind—or will change her accent to talk a bit more like me, so he will think that she is even posher than she really is.
I say to the noble Baroness, Lady Bertin, that it is always good to hear from the Government Back Benches. She made the good point that if you make a commitment, you should be able to keep it. The Minister has been frank and honest about some of the problems the Government have encountered, but I come back to the point I made earlier: this should and would have been foreseeable if they had done the proper analysis much earlier of what was implied by the commitment they were making.
The noble Lord, Lord Paddick, is far more skilled in these details than I am, and in particular on the law of unintended consequences in how one puts laws together and applies them. He makes a very good point but, again, there is the incredible importance of recording misogynistic data, so we actually know what we are talking about instead of just guessing.
The noble Lord, Lord Ponsonby, shared his direct experience as a magistrate and it was very compelling. If it is racially motivated, you have to fess up and say that up front, but if it is equally or more egregious, you do not have to. The fact that it is optional tells you that we are barking slightly up the wrong tree.
Finally, I turn to the noble Baroness’s contribution. What is so frustrating is that we spend so much time talking about all the problems that get in the way of trying to do something about this. We do not hear very much about prospective solutions. To some extent that is what Kit Malthouse invited us to do and committed the Government to doing—trying to find solutions.
On the point about asking police forces to comply with this rather than mandating them, I disagree with asking them. I actually think that we should mandate. Police chiefs are used to having a variety of things mandated by the Home Office, so would not be surprised or shocked. They might not particularly like it if the Home Office did so in this case, but I would strongly encourage the Government to think about doing that.
It is worth reading Hansard to see what happened when the Commons was considering our amendments. The vast majority of time in the early part of that debate was spent on the Newlove amendment, with speakers from all sides of the House, including a considerable number of Conservative Back-Benchers, particularly women. There was also a prominent man, the ex-Secretary of State for Justice, Robert Buckland. He has been intimately involved in helping to develop this amendment. I have also involved the noble and learned Lord, Lord Judge, in thinking through the validity and force of what we are talking about.
There is a growing concern and voice in another place that we need to stop talking about problems; we need to commit to doing solutions. So, for the reason that I feel that the soles of the feet of Kit Malthouse deserve to be subjected to a rather higher temperature than I think he feels at the moment, I would like to test the opinion of the House.