 House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates Criminal Justice and Immigration |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee
Clerk
†
attended the
Committee
WitnessesStephen
Shaw, Prison
s
and Probation
Ombudsman
Gareth
Crossman, Policy Director,
Liberty
Councillor
Les Lawrence, Chair, Children and Young People Board, Local
Government
Association
Councillor
Ann Lucas, Local Government
Association
Don
Horrocks, Head of Public Affairs, Evangelical
Alliance
Dr.
Louise Brown, Policy Research Consultant, Evangelical
Alliance
Public Bill CommitteeThursday 18 October 2007[Sir Nicholas Winterton in the Chair]Criminal Justice and Immigration BillWritten evidence to be reported to the HouseCJ&I 8 The
Evangelical
Alliance
1
pm
The
Committee deliberated in
private.
1.10
pm
On
resuming—
The
Chairman:
Mr. Shaw, you are on your own. I
normally ask our witnesses to identify themselves, but I do not think
we need to ask you to do that because you are, of course, the prisons
and probation ombudsman, and we welcome you here this afternoon. I am
sorry that we kept you waiting for a few minutes, but we had a certain
amount of private business to conduct before we went
public.
Your
first questioner will be Mr. Garnier, who speaks for Her
Majesty’s
Opposition.
Q
232
Mr.
Edward Garnier (Harborough) (Con): Thank you for
coming, Mr. Shaw. I shall be as brief as possible,
not least because your session ends at 1.40
pm.
Not surprisingly,
I want to concentrate on part 4 of the Bill, which deals with your
successor appointment. It is not clear from the Bill whether the
commissioner for offender management and prisons will be the same
office holder as you, or a separate
office.
Stephen
Shaw:
It will be a successor office, but whether I
shall be considered for that post remains to be seen. Assuming that the
Bill receives Royal Assent, it will depend in part on when it comes
into
effect.
Q
233
Mr.
Garnier:
How do you see your job, post implementation of
the Bill, relating to that of the inspector of prisons, the director of
the prison service and the Secretary of State or the Minister of State
with responsibility for
prisons?
Stephen
Shaw:
Both I and my office welcome the Bill’s
proposals. The office has been calling for them since it was
established in 1994, and there has been a Government commitment going
back the best part of 10 years. We welcome the proposals and believe
that they will give us the proper authority to conduct our business,
which is of considerable public importance and significance. We believe
that insofar as the Bill codifies and in certain respects extends our
powers, it is appropriate. It gives the office and the post holder
equivalent authority with the chief inspector of prisons. When these
proposals were first considered three or four years ago, I argued
strongly that the post holder should benefit from having a royal
warrant, not
least to denote equivalent status with the chief inspector. But when it
comes to practical issues, will it make a great deal of difference to
how we conduct our business? The candid answer is no, it will
not.
1.15
pm
The clause sets
out what we are entitled to do, how we go about our business and how we
conclude our investigations, which in large part reflect our existing
practice. It codifies that, puts it in a public form and reflects the
important work that we do, which includes work that is part of the
state’s compliance with article 2 of the European convention on
human rights. However, in day-to-day terms it will not make a great
deal of difference to how we conduct our
business.
Although I
very much welcome the proposals, which are largely right, it would be
proper to share with the Committee the issue of whether the Bill as
drafted provides the appropriate degree of independence for the
commissioner, a statutory ombudsman. It is a principle going back to
the first one in Sweden nearly 200 years ago, and a core international
standard of what an ombudsman is, that they should not operate within
the system but be freestanding and conspicuously independent of the
services that they oversee. Under the Bill as drafted, the commissioner
will be operating within a structure determined by the Secretary of
State—in that sense, the ombudsman will be a departmental
ombudsman.
My view,
which I have shared with colleagues in the Ministry of Justice and
elsewhere, is that it would be better if the commissioner was
accountable directly to Parliament rather than to the Secretary of
State and the Ministry. That would have two or three important
benefits. First, the post holder would be more conspicuously
independent; secondly—it may appear paradoxical but I believe it
be true—the post holder would be more accountable were he or she
responsible to and examined directly by Parliament. The third
advantage, assuming that the measure goes through, is that it will be
in place for many years to come, as no Government, of any party, will
want to return to it in a hurry, so what is set up must stand the test
of time.
Would the
courts consider the ombudsman or commissioner to be sufficiently
independent under the Bill as it stands to withstand challenges under
article 2? At the moment perhaps they would, but if we consider how the
law is likely to develop, an ombudsman operating under a departmental
umbrella is likely to be challenged about the degree of independence he
or she enjoys. In a recent case, the Parole Board was found wanting on
exactly those grounds. The Ministry of Justice intends to appeal
against that judgment and we shall have to wait for the outcome, but it
seems to me that that is the way that the law is going. There are about
half a dozen references in the Bill to what the Secretary of State may
do or pay for, and it would be better if they were replaced by a
reference to Parliament
itself.
Q
234
Mr.
Garnier:
I am glad you mentioned that particular aspect of
the Bill, as one of my concerns is that from clause 37 onwards,
investigations are requested by the Secretary of State.
“Request” is an interesting word to use in this context;
it seems to be a dressed-up way of saying things that he can tell the
commissioner to do. If you look at clause 37, you will see that the
Secretary of State will be entitled to
“request the Commissioner to
investigate any matter mentioned
in”
various subsections
of the clause. Essentially, the Bill specifies what the Secretary of
State may order the commissioner to
do.
I was interested
to hear what you said about the nature of the office. The commissioner
will have similar powers to a High Court judge, but not the
independence. On geographical matters, do you work from an office
within the Ministry of Justice or Home Office,or do you have a
self-standing
building?
Stephen
Shaw:
I share a building with the inspectorates of
probation, prisons and constabulary, and the secretariat that serves
the independent monitoring boards attached to every prison, so my
office is at some stage removed from the MOJ and Home Office.
Technically, it is in a Home Office building, but that might
change.
Q
235
Mr.
Garnier:
Constitutionally, would you think it more
appropriate if you were not—I use this language
loosely—an employee of a Government Department but, like a
judge, simply appointed by the Government or the
Crown?
Stephen
Shaw:
Certainly I would have to think about the first
part of what you said about being like a judge. Do I think it
constitutionally more proper for the post holder to be outside the MOJ
and responsible to Parliament? Yes, I do. Indeed, I have made that
point before.
May I
say something about clause 37, which is
entitled,
“Investigations
requested by the Secretary of
State”?
It might be
useful for the Committee to know that I originally asked for the clause
some three or four years ago when the measures were first considered.
It would enable the commissioner to conduct, in effect, ad hoc
inquiries of the kind that I am able to do. I have done some of my most
important work in public life conducting a number of ad hoc inquiries
on matters such as immigration, probation and prisons, and I wanted the
possibility of such inquiries to continue, so argued for the clause. I
believe that it is now thought that if the courts decided that article
2 compliant investigations were required following a significant number
of near-deaths or near-suicides in prisons, they could be carried out
under clause 37.
I
share your view, or I perhaps advance my own, that clause 37
subsections (7) and (10), which talk about the “duty” of
the commissioner to do what the Secretary of State requests and about
“directions” from the Secretary of State, are
inappropriate measures to apply to a statutory
ombudsman.
Q
236
Mr.
Garnier:
Do you think that the commissioner’s remit
will be wide enough in terms of premises? From my own experience, and
from briefings and so on with outside bodies, I have concerns about the
fact that you cannot look at every form of involuntary custody. I
accept that the military system is excluded—it is under a
different set-up—but is the remit sufficient to cover all local
authority involuntary accommodation?
Stephen
Shaw:
No, it is not. My office would like to see an
extension of the remit on complaints in respect of children held in
secure training centres. Under the current sentencing framework, two
children could be convicted of the same offence and receive the same
sentence, but one might go to a secure training centre and the other to
a young offender institution. The child in the young offender
institution would come within my current and future statutory remit,
but the child in the training centre would not come under my remit
regarding complaints. I do not think that I am betraying any secret by
saying that the Youth Justice Board, my office and the MOJ have been
looking at that. My own view is that the remit should be extended to
secure training centres, and I am hopeful that that will be agreed
during the passage of the
Bill.
When it comes to
local authority secure accommodation, you have two potential anomalies.
The anomaly at the moment is that, as I said, two children convicted of
the same offence could receive the same sentence and they could go to a
secure training centre or to a young offender institution, but of three
children convicted of the same offence and receiving the same sentence,
one could end up in a local authority secure home. You could argue that
that is an anomaly: should not the same protections
apply?
The trouble
with that is it runs into the other potential anomaly, which is that
many children in local authority care in the same home are not
offenders and would not have access to me. My understanding is that
children in the local authority accommodation have other routes through
which they can complain. I personally am content that that is the case
and that it would create more of an anomaly if just a small number of
those children were able to come to me and the rest
not.
Mr.
Garnier:
Perhaps it could be sorted out by increasing your
remit to cover those children in local authority care by order of a
criminal court as opposed to a family court
or—
Stephen
Shaw:
I understand that argument, which in the past
the office has been sympathetic to. The counter-argument is that you
are running a small home for children and you have two different
systems, depending on how the children have ended up in the home. I am
not sure that that is particularly user-friendly for the
child.
The Corporate
Manslaughter and Corporate Homicide Act 2007 has been the subject of
quite heated discussion in Parliament over the last year or so,
particularly in relation to the application of that law to
custodial and police premises. It is in, but it is a case of “Oh
Lord, make me perfect, but not yet.” It does not apply to the
Prison Service and police cells for three
years.
Forgetting
the party politics of this, as a dispassionate but clearly interested
observer, would it assist you or the commissioner if the Act applied to
custodial premises immediately, not least because it seems from the
clauses of the Bill that we are concerned with now that sometimes you
may have to defer or at least have the power to defer an investigation
until criminal proceedings are concluded?
I can see a situation in which, at the moment, with the three-year
delay, you might be investigating something that ought more properly to
be investigated by the police as opposed to the Health and Safety
Executive, and things may happen or not happen, documents may or may
not disappear and witnesses may or may not have statements taken from
them, which could inhibit either your processes or the Crown
Prosecution Service processes in arriving at
justice.
Stephen
Shaw:
Just by way of preface, the office has no view
and expressed no public view on corporate manslaughter. My personal
view is that I welcome the extension, when it comes, to prisons and
police cells. We have a protocol under my current arrangements, a
memorandum of understanding with the Association of Chief Police
Officers, such that where there is a parallel police
investigation—perhaps because a death has occurred and the
police suspect homicide or assisted suicide or, indeed, if other health
and safety or other charges are possible—under the terms of the
memorandum we endeavour to ensure that we do nothing that might
prejudice a
prosecution.
The way
in which the Bill is drafted is, I think, superior to the memorandum
that I currently have, in that it makes it clear that it is my
responsibility, or my successor’s responsibility, to decide what
is or is not appropriate in the particular circumstances. Bearing in
mind that my investigations and those of my office into deaths in
custody are part of the state’s compliance with article 2, I
think that the way in which the Bill is presented will enable me rather
better to conduct an investigation in parallel with something that the
police or the CPS are pursuing than perhaps is the case at the
moment.
The
Chairman:
Three hon. Members are waiting to speak, but do
follow that up very quickly, Mr.
Garnier.
Q
238
Mr.
Garnier:
Just as a matter of procedure, do you conduct
your investigations in public hearings, as in a court, or do you visit
places and find things
out?
Stephen
Shaw:
When I am conducting death-in-custody
investigations, I have not conducted any hearings. I am separately
conducting an article 2 compliant investigation into a near-death of a
man who tried to kill himself just after Christmas 2001, where as part
of the article 2 compliant procedure I have held four days of public
hearings and four further days are scheduled for
November.
1.30
pm
Q
239
Mr.
Garnier:
But do you think that the system set out in this
part of the Bill provides the commissioner with sufficient flexibility
to hold either open or private court hearings or strictly investigative
procedures?
Stephen
Shaw:
Yes, my own feeling is that, if clause 37 is to
be used as the basis for a significant number of near-death or
near-suicide investigations, it would be sensible in due course to
revisit what is actually said there, because the procedures will be
different. Whereas in a death-in-custody investigation there will be an
inquest—that is the public examination—where there is
a near-death or near-suicide, by definition there will not be an
inquest. By definition, to be article 2 compliant I have at the very
least to consider whether the evidence should be presented in public
and, in large part, that will mean a public hearing or
hearings.
I
think that there is sufficient flexibility in the legislation, but it
might be better to ensure that what was being done was entirely article
2 compliant to make more specific what the powers and responsibilities
of the postholder
are.
Stephen
Shaw:
I see no reason why the commissioner should be
a
coroner.
The
Chairman:
Thank you. Three hon. Members have caught my
eye: the Minister from the Ministry of Justice, David Hanson, David
Burrowes and Maria Eagle, another Minister. Perhaps you will strike
first, Mr.
Hanson.
Q
241
The
Minister of State, Ministry of Justice (Mr. David
Hanson):
I have just one
question, Mr. Shaw. The provisions of part 4 for
placing the commissioner on a statutory basis are
deemed to be cost-neutral and your budget in 2005-06 was
£5.7 million. Given the discussion that you have had about the
possible extension of your role and given comments, for example, from
Mr. Garnier, about some of the aspects of potential
extension and/or other costs, have you made any assessment of the cost
implications of any of the proposed extensions in terms of budgetary
and resource implications for you and your current budget and
staff?
Stephen
Shaw:
No formal assessment has been made by my office
of the costs of any of the extensions that we have talked about. In
respect of children in secure training centres, I think we are talking
about a modest sum
there.
Stephen
Shaw:
We are not talking about a lot of children and
children, in the main, do not use formalised complaints mechanisms. It
depends how proactive we would want the office to be, but we are
probably talking about no more than two or three additional staff, so
this is a modest
sum.
When it comes to
near-deaths and near-suicides, as I say, I envisage operating under
clause 37, where the sums potentially are very much larger, because
these are article 2 compliant investigations where the individual and
his or her family must be properly engaged—that almost certainly
means engaged with the assistance of lawyers—and the potential
costs there are in the millions, not tens of
thousands.
Q
243
Mr.
Hanson:
Could you give an indication to the Committee,
from your assessment of recent history, as to how many potential cases
that might be in the course of a
year?
Stephen
Shaw:
Well, three cases have come before the courts.
There is the case of D, where I am conducting the article 2 compliant
investigation; there is a case
known as SP, where the Ministry of Justice and lawyers representing SP
have agreed that article 2 is invoked and an investigation is to take
place; and the case of JL, which is the most recent case, where the
court appears to be saying that the fact of a near-death occurring may
trigger a need for an independent investigation. If it appears that it
could be argued that the state has some responsibility, and in the
prison context it would not be hard to argue that that trigger had been
reached, in those cases you would need to have what the court called
the full D process, involving hearings and lawyers. The numbers are
difficult to predict, but there are many self-inflicted injuries in
prison. There are between 150 and 200 cases a year of people being
resuscitated. If each one of those cases were to trigger a D-type
inquiry, we are talking about substantial sums of public
money.
Mr.
Hanson:
The Prison Reform Trust has mentioned a possible
extension to cover safeguard cells and potentially, court cells. Have
you heard the view on your modus operandi with regard to those
issues?
Stephen
Shaw:
The trust may have misunderstood the current
arrangement and what would be the arrangement for the commissioner. As
I understand it, if somebody were in a police cell under Operation
Safeguard and were to lose their life, that would be the responsibility
of the Independent Police Complaints Commission. If somebody is a
prisoner and dies under escort or in a court cell, that is, under my
current remit, my responsibility, and I believe that that would
continue once the Bill was enacted.
Mr.
David Burrowes (Enfield, Southgate) (Con): How much
consultation did you have on the details of the provisions? You
mentioned that you were involved some years ago when the ideas came
along. I want to ask you in particular about there not being a duty to
consult you in terms of change of remit.
Stephen
Shaw:
I cannot recall a discussion on that particular
clause. We had a lot of involvement two or three years ago in the
drawing up of the clauses that are before you, so I have no criticism
whatsoever of the degree of consultation and involvement. Manifestly, I
have not yet persuaded colleagues in the Ministry of Justice about the
degree of independence that I called for in answering the questions
from Mr. Garnier, but I have no criticism of the
process.
In respect
of there being no requirement upon the Secretary of State to consult
before altering the remit, I suspect that that is simply because it
seems to anybody inconceivable that such an action would be taken
without some form of consultation. I would not die in a ditch if it was
argued that there should be a measure in the Bill to ensure that; I am
not going to quarrel with that. I think that it is right and proper
that I should be consulted, but whether it is necessary for the Bill to
reflect that is a different matter.
Q
244
The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle):
You set out your views about greater independence.
In your experience thus far, have
you ever felt that your operational independence or what you do has been
compromised by the current arrangements? Secondly, do you believe that
were you to have greater technical independence, given that the
arrangement is to be cost neutral, do you not think that that might
divert some of your resources into overheads, away from actually doing
the
job?
Stephen
Shaw:
I will answer those points in the order in
which you presented them. I want to make it absolutely clear to
everybody present that, in the eight years that I have been ombudsman,
there has been no improper interference with any of my decision-making.
Indeed, I hope that I would have been bold enough to have resigned had
there been so. That is not to say that prisoners, when I have made an
adverse adjudication, have not said, “Well who is it,
Mr. Shaw, who appointed you?” and “Who is it,
Mr. Shaw, who pays you?” When I have to answer that
it was the Secretary of State who appointed me and it is the same
people up in Bootle who pay the rest of the Home Office and the
Ministry of Justice who pay me, the prisoner tends to turn around and
say, “Aha.” So, there is no doubt that the legitimacy of
my decision-making, in the eyes of the complainant, would be enhanced
with greater independence.
On the issue of whether greater
day-to-day independence would mean a greater cost, I believe that the
ability to decide where best I recruit, where best I am housed and what
IT system I have—the ability to shop around—ought to mean
a better deal for the taxpayer in the long
run.
The
Chairman:
Mr. Shaw, on behalf of the Committee,
I thank you for your extremely good evidence in answer to the many
questions put to you. Thank you, very
much.
Stephen
Shaw:
Thank you, very
much.
The
Chairman:
We now ask Mr. Gareth Crossman, who
is the policy director of Liberty, to take the hot
seat.
Mr.
Sadiq Khan (Tooting) (Lab): Before any questions are put,
let me declare that I used to be the chairman of Liberty, and that, for
my sins, I am also a
lawyer.
The
Chairman:
I am not sure that I have to say to the
Government Whip that it is a sin. I am more flexible and amenable than
to think that having held that important
office—
Again, I welcome
Gareth Crossman, the policy director of Liberty, and thank him for
coming to give evidence to the Committee. We are grateful to you for
finding time to come and answer questions about the Bill. I call
Mr. Harry Cohen, the Member for Leyton and Wanstead in outer
London, to start the questioning.
Harry
Cohen (Leyton and Wanstead) (Lab): I have a number of
questions, Mr. Crossman, so perhaps we can treat them in a
bit of a quick-fire way, because of time constraints. One aspect of the
Bill gives the courts greater discretion over tariffs for indeterminate
sentences, particularly for exceptionally serious sentences. What are
your concerns about indeterminate sentences and the parts of the Bill
that relate to them? Also, the Government have talked about taking into
account an offender’s level of risk, although they have not
spelled out in detail what the mechanism for that would be. Would that
ameliorate some of your concerns?
Gareth
Crossman:
Yes, certainly. Before I answer that, I
must say from Liberty’s perspective that we do not generally get
into sentencing issues, but there are many organisations that do. We
commented mainly on the original White Paper, because the issue at hand
was confidence in the criminal justice system, which we think is a
reasonable subject for us to comment on. However, our comments on this
matter have been brief and we do not claim it to be our particular area
of interest or expertise.
We have had concerns about
tariffs. I have mentioned confidence in the criminal justice system.
Part of the problem that we identified about what is
proposed—taking away the automatic reduction of a sentence by
half for a certain type of new offence that fits into the category that
is beyond serious and into the extremely serious range—is that
it will create a sort of blip in sentence lengths. At some point, you
have the cut-off point up to which all sentences must be reduced by
half. Then, presumably, there is a range of sentences—remember
that we are still talking about extremely serious offences across the
board—where because that requirement to reduce the sentence by
half has been removed, you would expect judges automatically to lift
the amount of sentence, so you suddenly have an extra hierarchy of
seriousness and increased sentence length. At a time when there is a
lot of public concern, which is often expressed, that they do not
understand how sentencing works, adding that extra layer might be
problematic. As I said, the issue is not one of significant principle
for us. We asked whether it would actually do good or harm to
confidence in the criminal justice
system.
The
Chairman:
I suggest that members of the Committee lean
forward when asking their questions so that they make use of our
sophisticated amplification system not only to help me in my dotage,
but because it is important that those in the Public Gallery can hear
clearly both the question and the answer. Because he is speaking close
to his microphone, Mr. Crossman is certainly coming across
loud and
clear.
1.45
pm
Q
245
Harry
Cohen:
My second point concerns provisions in the Bill
that cover automatic release, recall and re-release, giving the
Secretary of State the significant power to bypass the Parole Board.
How do you feel about
that?
Gareth
Crossman:
I can assure you that there are parts of
the Bill about which we express much stronger
views, but this is an area about which we have made the observation
that, to remove powers from the Parole Board must imply that there is a
perceived problem with the way in which it operates and that it is
necessary for the Executive to take back some powers. As a general
matter of principle, in individual cases the role of the Executive
should be kept to an absolute minimum and independent bodies, whether
the judiciary or the Parole Board, should have as much input as
possible. I am not sure what the policy drivers are to make such a
decision, but there might be good reasons for doing so. I do not know
but, if by doing so, public confidence in the parole system is
undermined, it should be approached with
caution.
Q
246
Harry
Cohen:
Hopefully, I will catch an area that is covered by
one of your significant objections. What do you feel about the
extension of adult conditional cautioning and extending the scheme to
16 and
17-year-olds?
Gareth
Crossman:
We do not have a problem in principle with
conditional cautions, but with conditional cautioning that is intended
to be punitive. Cautioning has long been considered to be the way in
which people can be kept out of the criminal justice system so they do
not have to go to court and are given—albeit a
clichÃ(c)—one last chance not to get on to the treadmill of
the criminal justice system. Having practised as a criminal lawyer, I
can say that, when once a person is in there, it is difficult sometimes
to get out of
it.
Cautions have
their role, as do conditional cautions. When legislation specifies that
the purpose of cautioning can be punitive, that is a cause for concern.
The punitive element of sentencing is for judicial determination; it is
not something that the police should be doing. Their role is not to
punish. That was what happened when the conditional cautioning scheme
was rolled out originally. It has now been extended, so our concern is
about the punitive element. Hopefully, the intention is to use cautions
in respect of younger people as a good thing, but I feel more strongly
about making them punitive.
Gareth
Crossman:
Yes. A criminal record is a criminal
record. It is not in itself intended to be
punitive.
Q
248
Harry
Cohen:
What about the part that allows for the setting of
custodial sentences in absentia—the person not being there, but
still getting a
sentence?
Gareth
Crossman:
I must make a confession. As we all know,
the Bill is huge and we cherry-picked the parts on which we commented.
I must admit that we have not yet commented on that
part.
Gareth
Crossman:
We may well do
so.
Q
249
Harry
Cohen:
Let me move on. I think that you will have a view
of what I am about to say now. Part of the Bill has a cap on a two-year
limitation on compensation payable to the victims of miscarriages of
justice. How do you feel about that?
Gareth
Crossman:
What was interesting about the way that the
matter was described was that it seemed to be part of the ongoing
rebalancing of the criminal justice debate that has been taking place
for many years. The explanatory notes indicated the need to put the
compensation payable to victims of miscarriages of justice on an
equivalent basis to that paid to people who had suffered injury as a
result of criminal injury. I cannot see why the two situations
necessarily match up. Having a two-year cap because that matches up
with what happens in cases where people have been injured during
crimes, has no logic other than it being the same number. It is the
same with the way a cap is imposed on criminal injury
compensation.
A more
appropriate approach would be to view this in the same way as one might
approach civil litigation. Of course there should be a limitation
period. The idea that someone can turn around many years hence and say,
“I want to claim for the loss resulting from this wrongful
conviction,” is incorrect, just as it would be for someone who
turns around many years after a civil action and says, “I wish
to claim.” That is why we have limitation periods. A six-year
limitation period as in civil cases would be appropriate. The
imposition of a cap, albeit a high cap which I am sure would not often
be reached, seems odd when the basis of loss is not one that would
generally be capped. Generally the upper limit would be determined by
looking at all the factors involved. However, as I said, half a million
pounds—which I believe is the cap—is a high amount, so it
is not a point that we would press particularly
hard.
Q
250
Harry
Cohen:
Let us move on to the criminalisation of extreme
pornography. You expressed concerns that the legislation could
be drawn too wide, and indeed the Bill includes, as part of extreme
pornography, the phrase that I referred to on Second Reading,
“appears to” which seems very wide. Do you feel that that
is a wide definition? What are your
views?
Gareth
Crossman:
Let me begin by saying that we have no
issue with the principle of the offence, especially in situations when
people are involved in activity and there is coercion involved. There
is a gap in the criminal law, especially if someone does not fall
within the realms of the Obscene Publications Act 1964, which deals
with possession with intent to sell for
gain.
One of my
original points was that usually a criminal offence is created because
there is a need to do so. What was surprising was that the original
White Paper said that there was no evidence to show a greater degree of
criminality as a consequence of people seeing this type of material. I
understand that further research has now been done that might indicate
a causal link. I have not seen it. However, that is the starting point.
I was surprised that the offence was being created without some
evidence behind it, but I do not take issue with the principle behind
it.
The problem is
with the breadth of the offence. For a number of years, there has been
a legislative tendency to draft offences extremely broadly. The Sexual
Offences Act 2003, which has some similarities, created a range of
extremely broad offences that one would not object to in principle but
which create concern as to the
number of people who might be criminalised. There was a tendency to say,
“It’s okay, we’ll require some extra authorisation
before prosecution can take place, be it from the Director of Public
Prosecutions or the Attorney-General.” That in itself is not
grounds for overbroad criminalisation. It is a bar against improper
prosecution, but technically if you commit a crime, you commit a crime,
whether or not you are then prosecuted.
I am sorry, I realise that you
asked me to be brief and I have given a lengthy answer. My concern
about this offence, is that the range of activity that will be covered
could include activities, such as sadomasochistic practices, that
people might find peculiar but that frankly do not harm anyone apart
from those who participate in them. I know that a number of people have
expressed extremely strong concerns about this, and we share those
concerns. There will be people who cause no harm to anyone else, who
engage in private activities or who possess material that clearly
involves acting and where there is no suggestion of any coercion. That
falls within the breadth of the offence. The defences that accompany
the offence do not seem to be particularly relevant. They seem to
revolve around someone not being aware that they are possessing
material. There needs to be some limitation. I would base that around
the idea of knowledge of consent or actual consent of those who have
partaken in the
material.
Q
251
Harry
Cohen:
That is interesting, but let me take you further on
this. I raised the issue on Second Reading. You did not quite get to
the point that it is not just the activity itself happening for real
that is covered, but also when it “appears to”. That
would presumably be ritualised or, as you say, acted out. I think that
Ministers would probably argue that not having “appears
to” would open up a huge loophole. How would you cover not just
the act, but a bit beyond that—or would you not go beyond the
act?
Gareth
Crossman:
I think that you are right and have
identified a real problem. What illustrated this issue to me was the
idea that “appears to” clearly covers things that are not
real such as acting and representation. Because it was realised that by
putting that wording in a lot of certified material in films could fall
into the definition, it was necessary to introduce a defence that the
film might be certified, but if an excerpt is taken from a certified
film it becomes an offence again. This offence ties itself up in knots
somewhat because it is trying to identify the correct parameters of the
criminal law by setting them so broadly that little loopholes have to
be created that are, frankly, not particularly
impressive.
The
example I gave in the briefing was the film “Casino
Royale”, in which there are sections that may well fall into the
definition of the offence if taken as cuts on their own. For anyone who
is wondering which bits I am talking about, they are the torture
scenes. That film was certified as suitable for 12-year-old children to
see when accompanied by an adult. That is the danger of having an
offence that is based partly on the need to criminalise and partly on a
subjective concept of what is moral and proper. As soon as you start
doing that, you get into grey areas about where the law should
end.
Q
252
Harry
Cohen:
I have two more questions, one of which is very
brief. I am not sure if this is an important question for you. In the
enforcement of foreign trial proceedings by UK courts, the defendant
can say that he did not get a fair trial abroad. However, as far as I
can gather, under the Bill he will lose the right to do so. Does
Liberty have any feelings about
that?
Gareth
Crossman:
I must apologise again. Had this been
published as two separate Bills, I think that it would have been
possible to deal with those parts in more detail. There are parts that
we have not been able to
cover.
Q
253
Harry
Cohen:
Let me come to my last question, which is a much
broader one, but important. Do you feel that aspects of the Bill risk
criminalising vulnerable people, such as children and people with
mental ill-health, and if so, what are those
aspects?
Gareth
Crossman:
Yes, although it is not necessarily
criminalisation. The parts of the Bill that concern me are when it gets
into the rather grey area of where the criminal law starts and ends.
The provisions to remove people from properties for antisocial
behaviour, unlike the provisions in relation to crack houses where this
legislation has been introduced, will presumably involve families.
There will therefore be children who are moved from one place to
another, who will be relocated and re-housed. I was very
concerned—I am sure that we will come on to this part in more
detail later—by the lack of any accompanying provisions to
ensure that appropriate provision is made for families that are
removed.
I
would say something similar about the special immigration status
provisions, which will clearly lead to the families of those who are
given special immigration status having conditions placed upon them as
a consequence—that is what the Bill says. As far as I can see,
that flies directly in the face of what the children’s
convention says is the appropriate treatment of children. Therefore,
for us, sometimes, it is not so much about what the criminal law says;
it is about the line between what is punitive and what impacts on those
who have done nothing wrong themselves. They are dealt with by the law
because of the actions of their families.
2pm
Q
254
Mr.
Hanson:
I want to clarify, Sir Nicholas, the point that
was made, because I think that it will be an important matter of
debate. Our colleague from Liberty, Mr. Crossman, has just
mentioned that, for example, scenes from the film “Casino
Royale” could be outlawed under this legislation. I would like
just to press him on what basis he makes that assertion, given that,
for example, in clause 64 we define quite clearly in subsection (6)
what an extreme image is. Also, clause 65 relates to matters concerning
classified films and so on. I am interested to know on what basis he
makes that assertion, because it will be a matter of public debate
around these issues.
Gareth
Crossman:
To quote clause 64(6)(b):
“An “extreme
image” is...an act which results in or appears to
result...in serious injury to a person’s anus, breasts or
genitals”.
I do not know if you have seen
“Casino Royale”, but there is a section where there is
quite severe damage being caused to someone’s genitals. On the
point of classification, as I said, there is an exemption, if it is a
classified film, but that exemption does not apply if you take an
excerpt from that film.
“for the purpose of
sexual arousal”.
From the
Government’s perspective, we are trying to define what is, under
clause 64(6), an extreme image, which is one that is made for the
purpose solely of sexual arousal in terms of the film.
There may be aspects within
film classification that examine those issues and the British Board of
Film Classification will make a determination on that. However, the
focus of the legislation is to ensure that we outlaw the downloading of
extreme pornography that is undertaken for purposes of sexual arousal,
which actually causes—or appears to cause—damage to a
person’s life, or indeed, under clause 64(6), other aspects that
I will not go into in the Committee today. I was interested in the
definition, from Liberty’s perspective, of whether this is a
real objection or, in a sense, a technical objection that needs later
clarification, or whether the objection is specifically on a freedom of
speech or freedom of information basis, in relation to the type of
material that we intend to
cover.
Gareth
Crossman:
It is both of the first two. It includes
the technical aspect, as to how it will be determined that the purpose
of an extraction of the type that we are talking about might be for
purposes of sexual arousal. More broadly, there is concern over the
idea of criminalising activity where you are dealing with something
that, in itself, is perfectly legal—a film that has been
censored and given a 12 certificate. A part might be extracted for the
purpose of sexual arousal and the possession of that extract becomes a
crime. It is where you feel comfortable about the limits of the
criminal law, when no one else is being affected. Obviously, no actors
were harmed in the making of this film. So it is about where you define
the limits of where the appropriate criminalisation is to be.
This is difficult, because, as
I said at the beginning, we do not have an issue with the creation of
this offence. The difficulty arises when you are dealing, effectively,
with offences involving morality; it is very difficult to draw a
specific line where the criminal law should begin and where it should
finish. This is the Government’s offence. We will obviously try
to make suggestions as to where we think that that line should be
appropriately drawn, and we do not pretend that it is easy. We will try
to make positive suggestions, but frankly we would be uncomfortable
with the idea of something being criminal simply because it is going to
cause sexual arousal, if no other criminality is being
alleged.
Q
256
Mr.
Garnier:
But is it not more difficult than that? If one
looks at clause 64(3), there is a huge degree of uncertainty and
subjectivity. It provides:
“if it appears to have been
produced solely or principally for the purpose of sexual
arousal.”
Who is to decide whether it so
“appears”? Is it the judge, the policeman, the viewer or
the maker? Have you any idea what the Government are thinking about, or
what they appear to be thinking
about?
Gareth
Crossman:
No, and I thank you very much,
Mr. Garnier, for succinctly putting one of my other concerns
into a far more condensed version than I did. The problem is, indeed,
that this is extremely subjective. When making a subjective
determination on criminality, some jurors might think, “Oh, that
is horrible stuff. I do not like that. They must be guilty”,
when dealing with acts that are not causing harm to other
people—obviously parts of the Bill will cover areas where people
are being hurt, and that has rightly been criminalised—and it
will be very difficult for a judicial or jury determination to be
consistent about who is convicted and who is
acquitted.
Q
257
Mr.
Burrowes:
The provisions arise on the basis of the
horrific Jane Longhurst killing, which I understand involved accessing
websites containing rape scenes. In relation to the issues that you
have raised about the definitions of “extreme image”, do
you think that there is a need to have a definition of rape within the
offence? There may be a question as to whether an image of rape is
covered by the
offence.
Gareth
Crossman:
It becomes very difficult to talk about the
way in which this offence is defined, when referring to rape. If you
are talking about a depiction of rape in a film, that is something that
will have occurred in many classified films, but it is not rape because
it is acted. If it is actually rape, that is non-consensual; someone
has been coerced into something against their will. Therefore it is
appropriate to make it a criminal offence to possess such material.
That is why the element of coercion is so important in how you can
properly draw the
offence.
Mr.
Burrowes:
Yes, I assume that you are referring to whether
it would be covered within the definitions in clause
36?
Gareth
Crossman:
I see. If it does not appear to threaten a
person’s life or so on, that may be
so.
Q
258
Mr.
Garnier:
The depiction of rape may constitute an extreme
image, but it must fit within the rest of the clause to become an
offence. Until we understand what clause 64(3) means, we are not much
further forward. I can think of any number of extreme images which are
disgusting and unattractive to look at, but the prosecution will have
to prove that an image appears to some unknown person to have been
produced solely or principally for the purposes of sexual
arousal.
Gareth
Crossman:
Yes.
The
Chairman:
Do you wish to follow this up any further before
I pass the questioning to David Heath?
Q
259
Harry
Cohen:
Is the burden of proof shifted on to the
individual, to defend themselves, if an allegation is brought against
them under the
provision?
Gareth
Crossman:
I was not aware that that was the case.
Could you point out where that might be
so?
Gareth
Crossman:
With regard to the defences, it is not that
the individual takes on the burden of proof, but there is a
presumption, if they are in possession of the material that falls
within the definition of the offence, that they have to prove that one
of the defences applies. In some ways, a strict liability offence is in
position which will result in a conviction unless you can establish the
defences. That is not uncommon in criminal law. If I was to say where
my concerns with the offence lie, it has less to do with the way in
which the defences are constructed, and more with the very broad nature
of what is
criminal.
Q
260
Mr.
Garnier:
I do not want to engage in an undergraduate level
of conversation when you are well beyond that. Looking at the defences
in clause 66(2), it is a defence for the person charged with the
offence under clause 64 to show that
he
“had not seen the
image concerned and did not know, nor had any cause to suspect, it to
be an extreme pornographic
image”.
To go back to
clause 64(2) and (3), there is a direct problem there because we have
the “appears to” under clause 64(3), yet there is a
different requirement under clause 66(2), in that the defendant has to
show that it did not appear to him that it was
not—
Gareth
Crossman:
That is a very good point. I think that
that reinforces the concern that I have about how to get consistency of
conviction from the interpretation of what the offence is. It is
extremely unclear. I have looked at this several times—although,
obviously not in the detail that I should have done—but every
time that I look at it, it seems to raise more questions about what or
will not be criminal. Unfortunately, when these matters arise, the
Government’s response in recent years has just been to make it
as broad and criminal as possible, and then not to prosecute
unnecessarily, which is okay by them. I maintain that that is not the
correct approach to criminal law.
Q
261
Mr.
Heath:
I am not sure that I should have given way to the
Minister in the first place, but it was a useful exchange, and I concur
entirely with the last statement. Can I move on to two areas that were
not within the original draft of the Bill? The first is the incitement
to have a public case. I do not think that Liberty is going to be
particularly helpful to any of the parties represented in the
Committee, because your view is that there should be no further speech
offences. Is that
correct?
Gareth
Crossman:
We are saying that there should be a
moratorium on further speech offences, further incitement offences and
further speech offences generally. Let me explain why. The development
of speech offending has been somewhat piecemeal. Since it first became
a criminal offence to incite someone to racial hatred in 1965, to the
current version of the offence in the Public Order Act 1986, to the
extension
to incitements to racial and religious hatred in 2006, incitement to
hate—which is not a crime in itself—has been criminalised
for certain things. Other speech laws include encouragement to
terrorism, and, where no intent is required, a recklessness test.
Several things arise from that rather piecemeal approach. One of them
is that it seems that there is no logical reason why people would
choose to offer the protection of the criminal law to a certain type of
speech incitement offence, but not to others. Why, for example, will it
now be an offence to incite someone to homophobic hatred, but if I
incite someone to hatred on the basis of their sex or disability, it
will not be an offence? Why? There is no illogical reason for that. The
justification seems to be that there has not been a case made for it,
but the case for introducing an offence might be made by those who
lobby most effectively to introduce that
offence.
Secondly,
there is an efficacy issue. Do those offences work? How many
prosecutions do we have? I think that Lord Basham said that there had
been 79 prosecutions since 1987 for incitement to racial hatred. That
works out at about four a year, so the legislation is not used a lot.
Maybe the chilling effect is greater. I remember that when I was
looking into racial and religious hatred, I looked at the British
National party website, which was not a politically pleasant
experience. It referred to the trial taking place at the time of two
members of the British National party for racial hatred. The BNP
website said—this will not be word-perfect, but was the
sentiment—that they must ensure that they gain maximum publicity
and membership from the publicity that the trial generates. Possibly,
those who originally created the offence of incitement to racial hatred
did not intend that it should provide succour, promotion and membership
opportunities for members of extreme right-wing
parties.
2.15
pm
Therefore, we
are saying, “do not approach a piecemeal extension”,
because there is no reason why one could not continue to extend it so
that any area of law that deals with a legitimate discrimination could
also be covered by incitement law. Rather, the impact of current laws
should be looked at and reviewed to see whether they are
working.
Q
262
Mr.
Heath:
Thank you. I understand that advice. If we were,
however, to ignore that advice and have a crime of that sort, I wonder
if you have given any consideration to what sort of balance should be
struck between the wish to outlaw a particular model of behaviour and
the wish to protect free speech.
Gareth
Crossman:
Ideally, you should adopt the model that
was used for the Racial and Religious Hatred Act 2006, which included
the need for intent and the specific protection to cover free
expression. That would be the logical approach to take. The difficulty
is that, while one can understand—if one wants to introduce
those offences—why those extra protections might be needed,
there is no logic to it because religious incitement has a distinct
nature, it is not immutable in the way that other things are and there
is no logic with which to approach the religious model. The more
obvious choice is the racial model,
but that does not have the protections of free speech that the religious
model has. That is why there needs to be a review of how those laws
operate.
One ties
oneself up a bit; having introduced thorough concerns with certain
provisions to protect them, when we make another law a couple of years
later, ought we to apply those protections or to look back at an
earlier model? Unless one is taking an overarching view of the need and
efficacy of the legislation, that is what will
happen.
Q
263
Mr.
Heath:
If I may, I will move on to the changes to the
requirements for authorities of the multi-agency public protection
arrangements to provide information on sexual offenders—those
were not originally in the Bill and were not really in the frame until
amendments were published recently. I do not know whether you have had
a chance to look at the amendments and have a view on
them.
Gareth
Crossman:
I did look at them, although only very
recently in the past few days or so. I looked at them with interest
because there have been some concerns about how, on the one hand, to
provide the proper protection that is necessary for children to be kept
safe and, on the other, to address all of the problems that can arise
from the notification process. When members of the Government went to
the States, they saw what was being applied there and felt concerned
that that level of public awareness might prove counterproductive. One
aspect of the current model is that the police know where people are
and those people know that the police know that; if they were hounded
out of their homes, no one would know where they would be and they
might be a greater danger. Therefore, I looked at that issue with
interest and do not see how the clause, as it is drafted, would work.
There are major problems in the drafting.
If I may, I shall explain where
I think problems might arise. It states that there is a presumption
that the responsible authority should disclose information about the
relevant previous convictions of the offender to the particular member
of the public. That would create a presumption that one would have to
inform someone, but in relation to whom would that presumption apply?
Which member of the public would that be? Also, the person who would be
given that information would not have asked for it but would be given
it whether or not they wanted it. They are told whatever level of
information is considered appropriate. A further problem arises from
the fact that conditions can be imposed upon that person—who may
never have asked for that information—about what they may do
with it. What conditions are they? How will they be enforced? Will
breaching them involve some sort of civil liability? You cannot enforce
a civil liability on somebody who has been given information, whether
or not they wanted it, and is then told that they cannot use
it.
A more practical
thing that struck me is that if you are one of these people who is
given this information it puts you in an intolerable position if you
are then given conditions. If you are given a certain level of
information about a person, because they pose a risk and it is
necessary to protect children, but you are then told that there are
conditions upon this information and you cannot pass it on to certain
people, what
happens if a child is hurt in that area and it is found out that you had
that information? You are not a public figure. You do not have the
backing of an official role. You are just a person who has been given a
piece of information. That is an intolerable position to put
individuals in. It is fine when you are talking about people who are
performing roles, such as head teachers of schools, because there is a
clear delineation about what they can and cannot do. The way that this
is drafted will put people in very difficult positions and I do not see
quite how it will be
enforced.
Q
264
Mr.
Burrowes:
Going back to the proposed hatred offence, we
have heard evidence that there is a gap in the law, particularly in
relation to vile anti-gay rap music, which does not lead to an offence
and prosecution. Could we have your view on whether that gap is plugged
at all by the Serious Crime Bill and the new offence of intentionally
encouraging or assisting crime and encouraging or assisting crime
believing that an offence will be committed? Do you think that it is an
offence that is properly dealt with in discrimination legislation or is
there a need for new
legislation?
Gareth
Crossman:
It is absolutely right to say there is a
gap in the criminal law. Everywhere where there is an absence of
incitement law, there will be a gap. You will say things and because
that is not an area that has been made subject to the criminal law,
that is a gap that you could plug. But then there are other gaps which
presumably you should have to plug as well.
Mr.
Burrowes:
What about the example of anti-gay rapping
music, violent language and inciting
offences?
Gareth
Crossman:
Let us remember that if you incite someone
to commit any offence whatsoever, you are committing an offence in
common law. That has been the case for 200 years. So if you incite
someone to go out and kill somebody because they are gay and if you
incite violence against somebody because they are gay, you are
committing an
offence.
Mr.
Burrowes:
That has been abolished. The new offence of
intentionally encouraging or assisting crime comes in the Serious Crime
Bill.
Gareth
Crossman:
I must admit that the Serious Crime Bill
was not one of mine. If that has been replaced, am I correct in
thinking that what has happened is a codification of the common
law?
Gareth
Crossman:
There is a range of criminal law that can
be applied to those who incite those who commit crimes. We are talking
about incitement to hatred. There may be many things that you wish to
do against those who sing foul, homophobic nonsense. You may wish not
to allow them into the country if they are from overseas because you
believe that they are not conducive to the public good. If you run a
venue where they are booked to play, you may decide that you and, as
far as you are concerned, everyone else should not be giving them a
platform. What we are talking about is the criminal law and whether it
is a crime to incite someone to hate.
I will come
back to the same point that I have made before. If we are determining
that some areas are suitable
for that to be an offence, then unless you can show a logical reason why
you should not extend it to any other area where somebody could be
discriminated against, then it has to be piecemeal and slapdash. Let me
make this absolutely clear. I am not saying—please let me make
this absolutely clear—and nor is Liberty saying, “Do away
with all incitement to hate law. Do away with all speech
offences.” What we are saying is that the way that the law is
developing at the moment is
undesirable.
Q
265
Mr.
Hollobone:
In that respect, to turn it the other way
round, if we were to consider a law against incitement to hatred, full
stop, what do you think Liberty’s view would be of
that?
Gareth
Crossman:
I think it is likely that we would feel
compelled to object to a law that criminalises incitement to hatred. I
do not think anyone would dispute that it is appropriate that the law
places limitations on free speech. That is clearly the proportionality
model that is incorporated in the Human Rights Act and it has been
recognised through interpretation of the common law as well. But before
you can place a restriction, you have to be satisfied of various
things. First, you have to be satisfied that it is for a legitimate
purpose, which it may be—it might be a legitimate purpose
because it is going to prevent crime or is for the public
good—but you also have to establish that it is proportionate and
not excessive.
I would
have to say that, just as it is not a crime for me to hate anybody, if
I go around inciting people to hate others and I am committing a crime,
I would be very pushed to say that that would be a proportionate act
from the perspective of criminal
law.
Q
266
Mr.
Garnier:
It may be that we are in the area of legal
development where we are trying to recognise an identified group with
concerns for their own safety and reconcile that with our desire not to
pass useless laws or simply to repeat laws that already exist. But do
you think that it would be possible to frame a law that made it
illegal—a crime—intentionally to do or say things with
the intention of arousing fear or concern such that that group of
people would be subjected to physical or mental
harm?
Gareth
Crossman:
Well, you are not far away there from
sections 4 and 5 of the Public Order Act 1986, which deals with
behaviour intended or likely to cause harassment, fear or
distress.
Q
267
Mr.
Garnier:
I agree with you, but if one added the magic
words, “on the basis of their presumed or actual sexual
orientation”, would you agree that, although we may not be doing
much good, we are not doing any
harm?
Gareth
Crossman:
Correct me if I am wrong, but if you are
talking about the approach that is taken under the Crime and Disorder
Act 1998, it is more about taking activity that is already criminal and
aggravating it because of the intention behind it. I do not see that as
being particularly problematic. If you commit an assault, it is
aggravated if you do it for racial or religious motivation. I can see
that the same thing could easily apply to an assault based on
homophobic reasons. But that is a very different thing, because you are
dealing with something that is already in the realm
of criminality. I think concern arises when you take something that is
not criminal at all and bring it into the criminal law on the basis of
a discrimination-based
argument.
Q
268
Mr.
Garnier:
Could I take you to the Hansard report of
Tuesday’s sitting? In columns 74 and 75 you will see that, in
response to a question that I asked out of total ignorance, because I
had no idea what Mr. Summerskill had in mind, he recited a
long list of nasty things that apparently rap artists sing.
Mr. Summerskill broadly says that these are unpleasant,
nasty things that cause gay people to live in fear and that these sorts
of lyrics incite hatred against gay people. I am sure that you are
familiar with these arguments, but how do you respond to his arguments
in relation to those sorts of lyrics? You can imagine what they are, we
do not need to have them read out all over again, it was wonderful
enough as it was.
Gareth
Crossman:
One of the consequences of the introduction
of these offences is that it makes for some of the more interesting
Hansard
reading.
2.30
pm
Gareth
Crossman:
I think that it is the issue of
specificity; inciting hatred towards particular individuals, that is
different from a sort of general incitement to hatred against a
particular group of people that contains many people and is
non-specific. I know that Stonewall has been making this case for a
number of years and it is keen that the offence be introduced. You look
at lyrics such as this and you can imagine why people might feel that
it is unacceptable to have people calling themselves musicians coming
out with this. That is fine, but we are talking about the criminal law.
Without the specificity of an individual offence being committed
against a particular individual, it is difficult to use a broad brush
of criminality.
If you know
that there is an offence of incitement to hatred against homosexuals,
it is unlikely that unless you are a dancehall artist, for example, you
will be prosecuted. These are likely to be high-profile prosecutions.
The chilling impact of knowing that there is such an offence, in the
same way as knowing that there is one of incitement to encouragement of
terrorism or incitement to racial hatred, is that it might make you
feel that you are being persecuted, but it is likely that the people
who will be prosecuted most will be black dancehall artists. I imagine
from the examples that we have been given that they are the people who
would be
targeted.
Sorry, I
lost my thread somewhat. The point that I am trying to make is that
what is deeply unpleasant is not necessarily a subject for the criminal
law, and if you cannot be specific about those against whom you are
inciting an act of actual violence or other crime, you are getting into
a grey area of what should be criminal.
Q
269
Mr.
Garnier:
May I take you to column 83 of the same report?
You will see that in Question 190 I quote an extract from the article
that Shami
Chakrabarti wrote for The House Magazine quite recently and I
dare say that you are familiar with what she said
there.
Gareth
Crossman:
Yes, indeed—it is eloquently put.
Over 3,000 new criminal offences have been created since 1997. A lot of
those have not been put into effect; some of the offences get used very
rarely. When properly used, legislation, especially the criminal law,
will target a gap in the criminal law where there is a proportionate
and necessary need to provide protection.
Q
270
Mr.
Garnier:
Which seems to be what Mr. Summerskill
said in answer to me at the bottom of the page, he said very generously
to me:
“You
make a very good point. I cannot comment on what Shami Chakrabarti
chooses to say. The reality is that in the human rights framework in
which many people feel we now live, there are many sensible people who
say that that, nevertheless, does not mean that everyone has human
rights to do or say whatever they wish. Human rights should be applied
proportionately and with responsibility and we do not accept that where
there are robust protections for some communities, there should not be
similar protections for others where there is clear evidence. I have
cited some evidence and the Chairman asked me to desist precisely
because I did not want to take you through the entire
volume,”—
that is
the column that we looked at a moment
ago—
“But we have
cited very clear examples of what we regard as transparent evidence
that there is an issue.”——[Official Report,
Criminal Justice and Immigration Public Bill Committee, 16 October
2007; c. 83, Q190.]
It seems
that there is potential for agreement between the line that Liberty
takes and the line that Stonewall takes. Assuming that you are prepared
to accept that Stonewall thinks that there is a need for a law, the
bridge seems to be the issue of proportionality and possibly
intent.
Gareth
Crossman:
Proportionality is the test by which we
determine whether something is properly criminal. Where we differ is
that we try and take an overarching view; we do not draw a distinction
and we do not try to create a hierarchy of rights. The danger is that
this approach to legislation is creating hierarchies of benefits. There
are some groups who are deemed worthy of protection and others who are
not.
When the
Commission for Equality and Human Rights is just about to come into
operation and is supposed to take an overarching view of the idea of
equalities and rights for all, I would be concerned about the message
that it sends out for certain rights to be protected under the criminal
law in a way that others are not. Yes, we agree about proportionality,
but we also say that there must be
consistency.
Q
271
Mr.
Garnier:
If we are to have a law at all, which is entirely
up to the Government because they run the show, is it your view that
such a law must include the concept of intention in the mind of the
defendant before it is put into law?
Gareth
Crossman:
I cannot give you an absolute answer.
Before you take away the element of intent and, by definition,
introduce an element of recklessness, you would have to be very, very
careful about what you are doing. In recent times there has not been a
speech offence based on recklessness that Liberty has supported.
We have opposed incitement to encouragement of terrorism for various
reasons, but mainly because by introducing a recklessness test you are
criminalising careless or reckless speech.
Q
272
Mr.
Garnier:
I guess it depends what you mean by recklessness.
Recklessness often means a refusal to consider the consequences, which
to the reasonable man might be obvious.
Gareth
Crossman:
Yes.
Gareth
Crossman:
That is the difference between subjective
and objective—or rather the court’s interpretation is.
Many eminent lawyers spoke in debates on the Floor of the House about
encouragement to terrorism, and discussed the parameters of the law and
exactly where recklessness started and finished. But outside the
courtroom and Parliament people have not got a clue where the
parameters of the law are. All they will know is that there is an
offence of encouragement of terrorism or incitement to homophobic
hatred. They will not know exactly where that law begins and finishes
and what interpretation we have put on it.
There are two dangers in that
situation: first, there is the chilling effect that people will just
shut up rather than be in breach of the law; and. secondly, that people
will feel they are not getting protections that others have or that
they are being particularly targeted in a way that other groups are
not, and that can cause
resentment.
The
Chairman:
Philip Hollobone wanted to come in. This will
have to be the final question, as we have about one and a half minutes
to
go.
Q
273
Mr.
Philip Hollobone (Kettering) (Con): Race relations
legislation is the longest standing anti-hatred legislation we have to
judge against. Given your earlier remarks about the number of
prosecutions and the publicity that extremist groups have gained from
such prosecutions, is it Liberty’s view that the offence of
inciting people to racial hatred has improved race relations in this
country, or do you think that they would have improved in any
event?
Gareth
Crossman:
That is an impossible question for an
organisation such as Liberty to answer; we do not do empirical,
statistical research into these issues. The Commission for Racial
Equality might be in a far better position than we are. Based on the
number of prosecutions there have been, I would not say that it has
been a particularly used offence; I think that of the 79 prosecutions
there were 44 convictions. I hope that community and race relations
have improved considerably since the 1960s; I think that that has
happened for a range of reasons, but whether the existence of an
offence of incitement to racial hatred is one of them I could not
say.
The
Chairman:
This is probably an appropriate point at which
to end this part of our sitting this afternoon. On behalf of the
Committee, I thank you, Gareth Crossman, for answering our questions so
openly, and for being so honest when you felt that the question was
beyond the brief that you have in coming before us on behalf of Liberty.
Thank you very much, you have been very
helpful.
I ask
colleagues informally, are you still comfortable? Would you like a
short break? Our other witnesses are here, but I think that they would
understand it if we took a 10 minute
break.
2.40
pm
Sitting
suspended.
2.52
pm
On
resuming—
The
Chairman:
We have before us representatives of the Local
Government Association, Councillor Les Lawrence, chairman of the
LGA’s children and young people board, and Councillor Ann
Lucas.
Mr.
Heath:
Let me declare that I was at one time a
vice-president of the LGA. I was never told that I was not any more, so
I may still be one.
The
Chairman:
I think that I hold some honorary office with
one of the local government associations, and they certainly have not
told me that I have been kicked off, but I suspect that I am no longer
in an honorary position.
Les
Lawrence:
I am not in a position to confirm one way
or the
other.
The
Chairman:
I was going to ask our witnesses to identify
themselves, but I do not think that that is necessary as Les Lawrence
is clearly Les Lawrence and Ann Lucas is clearly Ann Lucas. On behalf
of the Committee I thank you for coming before us as witnesses to help
us with the Bill, not least from the point of view of those that serve
in local government. David Burrowes, who, by the way, is a solicitor,
is going to start.
The
Chairman:
Sometimes it is helpful, because it could
perhaps impact upon the style of the
questions.
Q
274
Mr.
Burrowes:
First, a general question. What is your reaction
to the Bill, particularly the youth justice provisions? What do you
welcome and what do you not
welcome?
Les
Lawrence:
We welcome the Bill in terms of the fact
that it is a wide-ranging and largely an enabling one. It is a
framework that, in the sense in which it is intended, we welcome very
much. We certainly welcome the emphasis placed on community-based
interventions of young offenders. We are very supportive of the youth
rehabilitation order and the way in which the Bill strikes a balance
between punishment and protection, reform and rehabilitation.
While we
recognise that being radical is not always something that comes easily
to legislation, we would have liked to have seen a shift towards what
we call prevention and early intervention, which is much the intent of
children’s services or young people’s services. That is
illustrated by the integrated youth support service and so on. We
should also like to see an emphasis on greater partnership working,
responsibilities and concepts of duties to co-operate between the youth
justice system and the children’s trust arrangements that exist
in all local
authorities.
However,
we have a slight caveat in that, although the Bill is enabling, the
devil is always in the detail of the statutory instruments and
guidance. The Local Government Association would obviously be keen to
engage with the Department in the formulation of guidance to ensure
that it is of benefit to both the Government and local authorities in
general.
Q
275
Mr.
Burrowes:
In relation to the practical working of the
youth rehabilitation order, the bottom line as far as you are concerned
is that it is deliverable. Let us consider if from the perspective of
the point of sentence. In the delivery of measures of rehabilitation
for young people and to place them in appropriate places, funding is
often the barrier. For the funding and the place to be matched up with
the time that the sentence is ordered is often something that does not
happen. It is not obtainable. What assurance can you give that the
orders specified in the Bill are
deliverable?
Les
Lawrence:
Where we see an advantage in the youth
rehabilitation order is that, in the current system—certainly
previously—there has been an increase in the number of young
offenders who are subject to custodial sentences. It is now recognised
that the medium or long-term benefit of those custodial sentences is
reducing. The degree of reoffending among young people who have been in
the custodial system is much higher than even within the adult
arena.
The youth
rehabilitation order is a mechanism whereby we can begin to refocus the
intent behind community sentencing. It must be structured in such a way
that it brings a benefit back either to the community or to the
offender such that we could then begin to link it with the concepts of
restorative justice. We must make certain that both the victim, either
an individual or the community, and the perpetrator get a benefit back
that brings about a long-term benefit in terms of the youth justice
system as a
whole.
That is
exampled by the differential costs. Here, I can agree that the order is
deliverable. I am sure that colleagues round the table know that it
costs roughly £24,500 per six months to keep a young person in a
custodial situation. However, if community sentencing is used in the
most effective form and it is linked with a YRO, that would cut the
cost to about £6,500 for the same period. That shift in
resources will not happen overnight. Any change in the system will take
a significant time to evolve, but a shift in existing resources will,
in our view, bring about a significant change in the understanding and
acceptance of the youth justice system, and a whole panoply of benefits
to not only the offender, but the victim or the subject of the
offender’s misbehaviour.
With the
involvement of the police; the youth offending service; in some cases
the NHS, because often the youngsters have mental health issues; the
child and adolescent mental health services and local government as the
lead in facilitating the implementation of these orders in conjunction
with the courts, I think not only that the measures will be
deliverable, but that the long-term benefits will be there for all to
see.
3
pm
The
Chairman:
If Councillor Lucas wants to come in on any of
these questions will she please do so. For the information of the
Committee as a whole, could you advise us where you are councillors
for?
Les
Lawrence:
I am the cabinet member for children, young
people and families on Birmingham city
council.
Ann
Lucas:
I complete the west midlands round-up.
I am a Coventry city
councillor.
The
Chairman:
Thank you very much. I think that that is quite
helpful because we appreciate that the part of the country that you
come from may in some way influence some of the views that you express,
although we understand that you are here to represent the Local
Government
Association.
Q
276
Mr.
Burrowes:
Dealing with the specific requirements within
that order, there are local authority resident requirements, drug
treatment requirements, education requirements and, separately,
fostering requirements. All of those inevitably impact on resources.
All of those orders are dependent on recommendations from the youth
offending team and the social worker of a local authority, for example,
to be deliverable. All of those things are very much within the
province of the local authorities. The provision sounds good, but I
question whether it is likely to happen on the
ground.
It would be
useful to hear, in terms of your members association, whether you feel
that the capacity is presently there to deliver those types of
requirement. To take one example, adolescent drug and alcohol services
are bereft across the country with one residential drug rehabilitation
centre in the whole country. Can these requirements be
delivered?
Les
Lawrence:
I would like to convince you that it is not
only possible, but that it can be achieved in reality. Over the last
three or four years, local government has had to deliver services in a
much more integrated way than has been the case, dare I say it, for
central Government. Yesterday, in a speech to the adults and children
conference in Birmingham, the Secretary of State for Children, Schools
and Families indicated, interestingly, that the Government are
beginning to understand, at long last, that the way in which local
government works in a joined-up manner is something that they need to
do.
If you look at the
type of arrangements that exist on the ground, such as local area
agreements, which link the drug and alcohol element to teenage
pregnancies and in turn to the NHS through the primary care trusts, you
begin to see that the building blocks are already in place to enable
the intent behind the rehabilitation orders to be fulfilled. Often
these things will utilise many of the same people who assist in
providing the enforcement, revocation and amendment of rehabilitation
orders. I hope that I can begin to convince you that this is an intent
that we fully
support.
Q
277
Mr.
Burrowes:
Referral orders and, in a sense, the conditional
cautions inevitably have an impact on the youth offending team. Do you
have any comments about their role in those orders, which is within the
remit of the local authority, and about their ability to
deliver?
Les
Lawrence:
Yes, if those come into being, they can be
used as part of an early intervention and preventive strategy. The
situations that give rise to the conditions under which such a caution
is given can be addressed early enough to turn around the challenging
circumstances that these young people often face. What tends to be the
case at the moment is that, once they get into the youth offending
system, every time they are ratcheted up by one incident and before
long they are in a custodial situation. Often you will find that young
people are being incarcerated—I will use that phrase—for
offences that adults would never be incarcerated for. That is one of
the drawbacks of the current process. If you have these extra tools in
the box, as it were, you can ally that, through partnership working,
with much more intervention and with preventive strategies, using
outreach workers, or, as you rightly say, workers within the youth
offending service, to bring about a stop at that point, and also offer
the assistance and the help to address the issues that have given rise
to the circumstances in which the young person has found themselves.
That is beneficial, not only to the young person but to the wider
community as
well.
Ann
Lucas:
It is often a lot cheaper. Through the local
strategic partnerships in Coventry, we have different youth activities,
with some bad boys and girls, especially bad girls, funnily enough,
because if you get a bad girl you will find that you usually have six
or seven bad boys somewhere quite close. For a very small amount of
money, you can actually get them to think about what they want to do in
their community and, if they have something to do that is not sport,
because not all girls want to do sport, for £2,000 or
£3,000 you can get a group off the street. We got a group of 19
off the street and the crime figures went down
immensely.
Q
278
Mr.
Heath:
Let us return to the youth rehabilitation orders,
because there is general realisation that, if they work as the
Government intend, they will save money and be more effective, which is
the most important part. I just worry that there is not yet an
equivalent provision across the country of some of the elements that
will be required for this measure. Local authorities vary enormously in
what they can provide and what they do provide. I am a little surprised
that the LGA is quite so bullish about the prospects of putting those
building blocks in place in the very near future.
Les
Lawrence:
We are as supportive as we are because we
are running at the moment a project called Children in Trouble and we
are running four pilot schemes in different parts of the country. It is
in conjunction with the Magistrates Association, the police and the
Howard League for Penal Reform, and it is testing a range of options
with custody in the extreme. That is simply because it is felt that,
given the
number of youngsters who are ending up in custodial situations, there
may be a way of providing much earlier support, earlier intervention
and working with the young people to see whether we can facilitate a
change. That is change not only in the way that people view young
people but change within the communities from which many of these
youngsters come, and also to overcome what I call the intergenerational
perception of older people of young people and of young people of older
people.
Those pilot
schemes have started. We have the National Foundation for Educational
Research involved, who will undertake the evaluation. That evaluation
will start early in the new year. So, in a sense, we have begun to get
evidence that this type of arrangement—not taking the youngsters
into custodial situations—is beneficial. The magistrates and the
police are both supportive, there is collective working and the extra
element within the pilot projects is the third sector. We have
organisations like the NSPCC and NCH, the children’s charity,
working with us as well and that is making for quite an interesting,
collective coming together of various groups.
The final element that is
beginning to come out of these projects, but which is also something
that many local authorities have begun to use, is what I call
peer-mentoring. Often, youngsters who were in the system themselves
become the mentors of those who are entering the system. Because they
are able to talk the talk and relate in a much more effective way, it
adds an element to assist us in moving many youngsters away from
becoming entrenched in the youth justice
system.
Q
279
Mr.
Heath:
If a court, having looked at a particular young
person’s circumstances, makes an order requiring intervention on
the part of the local authority, do you take it as being a duty on the
local authority in question to provide what the court
specifies?
Ann
Lucas:
One of the reasons that we are bullish is that
you were absolutely right in saying that not all authorities work at
the same rate, and legislation means that they will have
to.
Ann
Lucas:
I see it as a duty. Once it is enshrined in
law, it becomes a duty. I am not a lawyer, you probably
are.
Q
280
Mr.
Heath:
The intensive fostering requirements are quite an
innovative part of the Bill and I know that they have been trialled,
but is it really possible to recruit the right sort of person to
provide those, given the difficulties we know there are in getting
foster parents for children in children’s services at the
moment. Very specific care will be required. Is it possible to recruit
enough people of the right calibre and attitude, in order to provide
that across a wide scale, in your experience?
Les
Lawrence:
The type of foster carers that you have
alluded to are essential. I will not hide from you that it will be
difficult to recruit them, but the quality of foster carers in many
local authorities is of a very high order, I would suggest. Local
authorities are constantly seeking to recruit and refresh, and they
offer opportunities for carers in a range of circumstances, not
depending only on age, ethnicity, or
challenge.
We
sometimes undervalue those who take on the role and therefore it is
incumbent on local authorities to ensure that they are never left on
their own, they are fully supported, they have access to services in
the round, and that, again, we work in partnership with other agencies
who can often provide skilled support that the local authority cannot.
I have referred to the third sector in many instances but the local
authority has the lead role. If you adopt the principle that is
enshrined within the Children Act about the statutory responsibility
for vulnerable children and use that as your working principle, I think
that we will be able to overcome the difficulties you allude to in
terms of
fostering.
Ann
Lucas:
In fact, as councillors we have legal
responsibilities; we are corporate parents. So, when you ask if we can,
my answer is that we have to. These are our
children.
Mr.
Heath:
But we have had to for a long time. I used to lead
a local authority myself. I know the
difficulties.
Ann
Lucas:
Yes, so we have not been as good a parent as
we might have in the past. We must be better in the
future.
Q
281
Mr.
Garnier:
To follow up on that point, 27 per cent. of
people in custody have come from care, so clearly something is going
wrong somewhere.
I
draw your attention to an expression that is repeated throughout
schedule 1—
“a
court may not include”
a
fostering requirement in a youth rehabilitation order unless the court
has been notified by the Secretary of State that arrangements for
implementing such a requirement are available in the area of the local
authority, which is to place the offender with a local authority foster
parent. There are equivalent provisions for other remedies that the
Bill seeks. Do you see the Secretary of State contacting each local
authority area and saying, “Got anything I could make use
of?” Or do you think there will be some form of planning? Do you
think he will say, “I’m not actually going to do this for
at least five years because there is not a local government authority
in the country that has the additional cash that is required to do
this”? How do you think this is going to
work?
3.15
pm
Les
Lawrence:
The thought of a Secretary of State picking
up the phone and speaking to each local authority is slightly Monty
Pythonesque.
Mr.
Garnier:
There is an awful lot about government that is
Monty Pythonesque or even Kafkaesque. Just from time to time if a
Government pass an Act of Parliament, does it not behove them to talk
to somebody?
Les
Lawrence:
I think that there would be, or at least I
trust there would be, an expectation that that responsibility would de
facto be delegated to Government offices in the region to enable there
to be arrangements that are either on an authority-by-authority basis
or on an area basis. The courts certainly tend to cover more than one
local authority. That type of arrangement would easily facilitate the
intent behind the clause. In that sense, you will be able to find that
a relationship would be built up, not only between local authorities,
but with the court system. Given that there is now a move, again
through local area agreements, to devolve roughly 10 per cent. of the
Youth Justice Board’s funds, then you have the beginnings of the
financial framework to facilitate the intent.
Ann
Lucas:
We normally work together across local
government, as you have pointed out. These young people are not
anonymous figures. They are young people who will be well known, both
in the system and by all the statutory bodies and most of the voluntary
bodies. There is the kernel there of getting together the right package
for that young
person.
Q
282
Mr.
Garnier:
I do not want to impugn your motives. I cannot
believe that anybody, either in government or in local government, is
looking to see this not work. Clearly, it is in the national interest
for it to work, but I am puzzled about what you think will happen. Do
you envisage sitting down in Birmingham and Coventry and reporting to
the government office for the west Midlands or directly to the Ministry
of Justice with a plan, so that the Secretary of State can then tell
the courts that arrangements are sufficient in any given area for him
to certify that these resources or systems are available? I am not sure
where the initiative will come from. I know that you both
represent very large authorities, but there will be smaller county
authorities with smaller resources. I just do not have any idea about
this. You are the experts, you tell me. What are the mechanics that
will enable the Secretary of State to say, “It is there, so that
court can do this”?
Les
Lawrence:
Yes, there will have to be a degree of
planning. There is no doubt about that. You cannot do it in a laissez
faire way. That is right. Each of the courts in each area will know
pretty accurately the number of young people who are currently going
through the system and are subject to the current arrangements. From
that you can begin to determine the likely number that would be the
subject of the referral orders if the legislation passes through. Over
a period of time, you could then, as Ann has rightly said, working
together within and across local authorities, begin to put in place the
necessary resources to enable the fulfilment of the intent behind the
legislation.
Q
283
Mr.
Garnier:
So are you going to be able to do that from
within your own budgets, or are you looking to the Government to
provide you with additional resources?
Les
Lawrence:
With the devolvement of the Youth Justice
Board funding to which I referred—the first 10 per
cent.—and if we can move from the current process of putting
young people into custodial situations and to the rehabilitation
framework, with the community sentencing options, we have quite a
significant amount of resource that we can refocus. It will not happen
overnight—I can see it taking anything between three and five
years to evolve—so I am trying to paint you a picture that is
not going happen as soon as the legislation is
passed.
Les
Lawrence:
It requires joint working, a degree of
planning, and a degree of commitment amongst all the agencies to
achieve the desired outcome. I would not be fooling anybody if I said
that it will not take
time.
Q
284
Mr.
Garnier:
But you are not going to build this paradise out
of 10 per cent. of the devolved Youth Justice Board budget, are you, so
let us take your own two large authorities, Coventry and Birmingham.
Ann Lucas, what would Coventry need to make the Bill
work?
Ann
Lucas:
One of the things that we are going to
need—it will be difficult—is an admission that we need
not only to work together but to pool budgets. There will be a lot of
virement of money necessary, and in my experience, that has been very
difficult. It is always difficult to persuade one budget holder that if
they are saving money, in actual fact, it should be passed over to
another. Multi-area agreements may make a difference with the smaller
authorities working together. You are right; they may have to do that,
not just working with local area agreements, but with multi-area
agreements.
Q
285
Mr.
Garnier:
What numbers? The Chancellor of the Exchequer is
not going to write out a cheque for a blank figure. He is going to say
that you can have x amount because you have told him that you need x
amount. What do you think the x or the half-x is going to
be?
Les
Lawrence:
People think of fostering care as fostering
care, but it is not, because local authorities provide the generality
of foster carers. However, the Youth Justice Board provides the money
for what is known as intensive foster caring. Intensive foster caring
is the basis of seeking to take young people out of the youth justice
system. That was indicated in response to an earlier question about the
orders.
Going back to
the children in trouble project, we have specifically concentrated in
north-east Hampshire on the use of intensive fostering. The Youth
Justice Board is funding that, as it does right across the country. The
early indication is that the number of places and the resources,
working with the court and the other agencies, are sufficient at this
point, as is the number of places that are required to match the number
of available resources. Yes, there is support from local authorities,
because of the other services that need to go with the fostering
service, but thus far, albeit from early indications from that pilot,
it seems that the resources—if used in an aligned and the proper
way—are sufficient at present.
Q
286
Mr.
Garnier:
But you cannot put your hand on your heart and
say that the best estimate is that a unitary authority is going to
require additional resources of x million, and that a county authority
will require resources of y million; or that on the basis of models
that you have worked up, in the light of the Bill, you have put in bids
to the Ministry of Justice for such-and-such; or that you need this
amount of money, this number of people, and the following working group
to do that. Has any detailed planning of that nature been
done?
Les
Lawrence:
Not in the singularity of that area. With
regard to the Local Government Association’s submission prior to
the comprehensive spending review and the total new burdens under
children’s services requirements, there was certainly a
significant requirement to obtain additional funding. The requirements
that we put forward had not been met in
whole.
Les
Lawrence:
Yes, that is true, but I refer back to one
of my original premises. If one looks at the amount of money that is
currently spent by the Youth Justice Board wholly and totally on
custodial arrangements, one will see—I repeat the figure—
that it costs £24,500 for every six months that a youngster is
in a custodial situation. The cost to take that same young person and
provide the kind of intense community sentencing arrangements with a
menu of options is £6,500. That is available at the present time
and shows the disparity between the cost of one process and another.
One could bring about a change so that existing resources were
re-focused and re-targeted to enable that change, and I feel that the
YRO is a mechanism for doing that. If representatives of the Youth
Justice Board were here, they would send the same
message.
Q
288
Mr.
Garnier:
Probably, across all the parties in the House of
Commons there is no dispute that it is better not to send offenders of
any age to prison if that can be avoided, because one could usually get
a better result outside prison. Although the reoffending rate for some
community sentences is quite high, even on the grounds of simple
expense, it would be a good thing to do something better and cheaper
outside of prison—there is no question that keeping youngsters
in custody is expensive. Do you think that it would be sensible for the
LGA to do some detailed accountancy work so that Parliament, let alone
the Government, could understand what the LGA’s needs are so
that it can do what the Government want it to do as a consequence of
the Bill becoming an Act?
Les
Lawrence:
I think that you will find that the LGA
will be willing to undertake the challenge to present a series of
scenarios given the indications that you have made so that we can help
to inform the debate.
The
Chairman:
I say from the Chair, without bias or prejudice,
that we will, no doubt, be in touch with all members of the Committee
during the passage of this legislation. Three more members of the
Committee have caught my eye: the hon. Member for Leyton and Wanstead,
who will ask questions next, followed by the
Under-Secretary of State for the Home Department, the hon. Member for
Gedling, and the Under-Secretary of State for Justice, the hon. Member
for Liverpool,
Garston.
Q
289
Harry
Cohen:
Thank you, Sir. Nicholas. When the Magistrates
Association’s representatives were before us, they answered one
question by saying that they would prefer what they called diversion
and recall processes than youngsters coming to court at all. From my
reading of the Bill, one cannot get a youth rehabilitation order
without it going to court. Is that right and, if diversion is to be our
priority, should not there be some sort of power for the local
authority or teams in the area to do a sort of YRO or its equivalent?
Could that be reflected in the legislation so that the order would not
have to go to
court?
Les
Lawrence:
That depends upon what you mean by,
“going to court.” I will use the discussions that are
ongoing within the Ministry of Justice on childcare proceedings and
family courts, where much of the emphasis is on preparation and
pre-assessment, and where the court intervention is based around what
are called directions. Thereby, the judge is involved, but at a stage
that is not in full public session. The directions are used to bring
about a much quicker solution. I suggest that that is a good model to
look at in terms of YROs. The court is still involved and judicial
supremacy in this regard is exercised through the concept of
directions. Therefore, because of the early work, the implication and
implementation of such a process becomes much easier, better understood
and, dare I say, less
costly.
3.30
pm
Q
290
Harry
Cohen:
So that is an administrative process that really
must go hand in hand with the Bill and
YROs.
You said earlier
that, presumably in several cases, young people can be incarcerated for
offences for which an adult would not be. That is a pretty shocking
state of affairs. Could you spell out again what brings that about?
What sort of mechanism would stop that happening and cut into the
cycle? Should we, for example, look again at the legislation, or is
there another administrative process? Perhaps a youngster could appeal
and say, “An adult would not go to prison here.” What
could be
done?
Les
Lawrence:
I know that it sounds simplistic, but I
would mention the whole process of early intervention, working with
families, early identification of youngsters who are in danger of
getting into trouble, and the use of outreach services from the youth
offending services. Those constructs and the passage of information
between organisations are all elements that help to reduce the numbers
of people going into the youth justice system.
Look at those
local authorities which have a very good relationship with the police.
I will use an example from my own local authority. We have police
located in schools. They become part of the school population. Respect,
confidence and a relationship build up between the young people and the
policeman lodged in the school. That often happens through safer
community
partnerships. They have reduced the incidence of crime, not only within
the immediate locality of the school at what they call “tipping
out” time, but also in the wider community because respect for
police and for their authority is greatly enhanced. That is
irrespective of the nature of the communities within which those types
of arrangements have been set up and it requires, as I say, the kind of
partnership arrangements that Ann was referring to through strategic
partnerships and similar measures.
Often youngsters who become
disengaged from society are seen as dysfunctional. They get themselves
into a cycle which leads them inevitably into a custodial situation. It
can start from a caution, moving on to an antisocial behaviour order,
then they break the ASBO and so on. Often, despite the best endeavours
of staff, the provision made by youth offending institutions for
education, training and the appropriate improvements in health and
well-being, is not as conducive to supporting the rehabilitation of
these young people as it should be. My final point—and it is a
strange conundrum—is that the Children Act 2004 created the
concept of a child or young person as being from 0 to 19. In the youth
justice system, the cut off is at 18. At 18 a young person suddenly
becomes an adult, but as far as the responsibility of a local authority
under the Children Act goes, that person should be supported until the
age of 19.
Q
291
Maria
Eagle:
It is important for us centrally to get some sense
of how local-authority led arrangements are going to work. Over the
last few years there has been a greatly increased level of partnership
working at local authorities and across agencies. From your experience
at the Local Government Association, do you think that something like
the local criminal justice boards or the children’s trust, or
perhaps even the local safeguarding children boards are the best way of
ensuring co-ordination? I heard what Ann Lucas said about pooling
budgets, which always helps, but from your experience, what do you
think will be the best local partnership arrangements for ensuring that
those kinds of flexible, local arrangements work?
Ann
Lucas:
From my point of view, looking always in local
authority areas, everybody looks to the local authority to lead. That
is a statement of fact. That is what happens. One of the other things
that it is important to say is that young people who are on the edge of
coming into the criminal justice system do not want in all cases to be
dealt with by the police or the courts or whatever. If they see the
local authority as the lead, they are more likely to interact in a
better way.
Maria
Eagle:
So will you use the children’s trust
arrangements to lead the work? Is that what you are
saying?
Les
Lawrence:
I would certainly suggest the
children’s trust as the overarching strategic body, but in terms
of the nature of the vulnerability of the young person, that would
either stay within the trust arrangements or go into the safeguarding
board, which has specific responsibility around very vulnerable young
children. As the safeguarding board in every case has a close
relationship with the trust arrangements—often the chairman of
the safeguarding board is part of the trust arrangement—that
linkage is
already there. Equally, the youth justice arrangements within most local
authorities have a direct link, either through the director of
children’s services or one of the senior members serving on the
children’s trust. So collectively you have all of the component
parts and all of the authority and decision-making processes in place
to enable this to be a natural vehicle for undertaking the role that
you are suggesting.
Q
292
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Vernon Coaker):
Moving on to a couple of
things that we have not mentioned so far, there are some important
measures in the Bill and local authorities are crucial in trying to
deal with the problems, working with the police and other agencies. I
am thinking in particular of the new measures with respect to street
workers, anti-social behaviour, the premises closure orders and so on.
Could you share your thoughts on those measures and what use they will
be in tackling some of the real issues on the street that your members
of the Local Government Association will be involved
with?
Ann
Lucas:
One of my tasks was to chair a task group
called ahead of the game, which ran along side the Home Office’s
“Paying the Price”, looking at prostitution. We focused
solely on street workers; the whole remit of trafficked women and
indoor sex workers was too large. We welcome wholeheartedly taking away
the term “common prostitute” from the statute book. It
has been our experience that that was the most unequal and unfair term.
If a man were brought before the courts for soliciting, he would be
charged under the Sexual Offences Act 2003 and would not be called a
common prostitute. It was unfair and stigmatising, so we welcome the
change.
Following Les
Lawrence’s earlier comments about prevention, we would have
liked a little more done towards prevention and we will continue to
lobby for the removal of prostitution offences. If you really want
people to move on and to change their lives, those sentences relating
to prostitution only stigmatise them, and very often mean that people
cannot move on with their lives. Broadly, we welcome the
measures.
Les
Lawrence:
As I am sure you will recollect, in
response to the consultation earlier in the year, the LGA requested
that the concept of premises closure orders were included in this Bill.
We fully support clause 103 in this instance because it is about
working together, not just the local authorities but the police too.
That brings about a much greater dialogue and it is a tool. We want to
ensure that the guidance enables the concept of local discretion to be
exercised, especially in the last resort.
We have to recognise that
depending on the nature of the premises, other service requirements may
come into play. If a particularly unhelpful family is living in a
house, the question of homelessness comes into play, especially if
there are children involved when we have statutory responsibilities. If
it is an unlicensed premise, the costs may be associated with what are
known as regulatory impact statements, but the cost of that undertaking
is marginal, at just over a couple of
thousand pounds. The general drive to include this proposal in the Bill
is well supported. We can iron out any of the little wrinkles in the
guidance as long as there is an appropriate dialogue between the Home
Office and ourselves.
Mr.
Coaker:
We would welcome that because what we have tried
to do, as Councillor Lawrence and Councillor Lucas know, is to build on
the success of the crack house closures and to replicate those
arrangements or regulations in the premises closure orders. If you have
particular concerns, please keep talking to us about them. We want the
proposals to work, particularly the new one that they apply to any type
of tenure, which is especially important.
Ann
Lucas:
Of course we do. Earlier we were discussing
the costs of closing somewhere down. Anecdotally, I believe that a
house in Glasgow was closed after 53 previous callouts involving the
police and different agencies. We are talking about the last resort.
Look at the cost of all the resources that had been used in that case;
it is a no-brainer.
Q
293
Mr.
Coaker:
As you say, the ongoing cost of failing to deal
with a particular problem is
enormous.
Could we go
back to the issue of prostitutes? Do you see the rehabilitative order,
the requirement for somebody to attend three meetings, as an important
step
forward?
Ann
Lucas:
We broadly support it. You will
know that we very clearly see the sex worker as the victim and we are
glad that they will not be fined any more. We believe that there is
crime and the criminals are the punters and the pimps.
There is, outside here, a big
debate as to whether you are starting another vicious circle. However,
I believe that this structure has to be available because otherwise
when you hit the bottom where do you go? If there is nothing else you
just go further down if that is at all possible. We found in our
research that these girls and women live the most chaotic
lives.
One view is
that short-termism is never a good thing because it takes people such a
long time to spiral into the lives that they lead and yearly targets
are not going to work. It can take a long, long time to get
somebody’s life put back together when it has taken years of
abuse to fall
apart.
3.45
pm
The
Chairman:
I must bring this session to an end. May I, on
behalf of the Committee, thank our two witnesses from the Local
Government Association very much indeed for their interesting and
informed evidence?
I
am particularly interested because at one time—Councillor
Lawrence will not be aware of this—I was a member of
Warwickshire county council and I sat on the governing board, or
whatever it was called, of what was then the Tennal approved school for
boys in Harborne, in Birmingham. I think that there was some
controversy there long after my time. I also served on
the joint education committee of what was then the Lanchester
polytechnic in Coventry, as a member of the education committee for
Warwickshire county council. So I have some affinity with both Coventry
and Birmingham.
We
are very grateful to you both. Your evidence was extremely helpful and
we are very grateful to you.
Les
Lawrence:
Thank you very much for your time as well,
and good luck in the rest of your deliberations.
The
Chairman:
Could we now please ask the representatives from
the Evangelical Alliance, Dr. Louise Brown and Mr. Don
Horrocks, to come forward and take the hot seats?
Once again, as I said to the
previous witnesses, I do not think that I have to ask you to identify
yourselves, because we have the information that Mr. Don
Horrocks is the head of public affairs of the Evangelical Alliance and
Dr. Louise Brown is the policy research consultant for the alliance. We
have quite a number of people who wish to question you, but I will
start by calling Mr. Philip
Hollobone.
Don
Horrocks:
We have made it clear that we oppose
incitement to any kind of hatred. We are against hatred. We are in
favour of good, basic fundamental human rights for everybody, so our
statements over the years have consistently maintained
that.
Q
295
Mr.
Hollobone:
But would you support a new law that would make
it a criminal offence to incite homophobic hatred?
Don
Horrocks:
No. We have made that absolutely clear, and
I think that we reflect the views of a lot of people and not just the
religious sector. I know that there has been a lot of comment in the
media and from across the board, just as there was with the Racial and
Religious Hatred Act 2006. There was a wide spectrum, not just of
religious people and religious groups, who were opposed to further law
that was seeking to prevent incitement on the grounds of, effectively,
speech. We have the same approach on this occasion. We are against
extending the law. We did not want the Racial and Religious Hatred
Bill—we opposed it at the time—and we oppose this further
extension now.
Don
Horrocks:
The issue always comes back to the question
of freedom of speech. We are not seeking specifically to defend
Christians or, indeed, any religious group today. We believe that where
the law will impact is on the basic fundamental civil liberty of
freedom of speech for everybody, and that is where we are coming from.
We think that this measure will have a negative impact, and that is why
we are against
it.
The
Chairman:
Does Dr. Louise Brown want to come in on any of
these questions? Do not hesitate to do so, Dr. Brown, if you wish to do
so.
Dr. Louise
Brown:
Thank
you.
Q
297
Mr.
Hollobone:
Stonewall and others who are in favour of this
legislation have given us some very difficult evidence about lyrics,
particularly in rap music, which has been very homophobic and, in their
view, incites people to hate gay people. They would like to see
legislation brought in to make that an offence. You may have had an
opportunity to see some of the evidence that they gave us. Do you think
that anything should be done about such violent and homophobic
lyrics?
Don
Horrocks:
On the specific question of rap lyrics, I
did hear the evidence. Our fundamental point is that we still believe
that extending the law is unnecessary because what we have now is
adequate, and is not being used. As far as rap is concerned,
Evangelical Alliance member organisations have long campaigned against
hate images and lyrics, so we know about that. We know that many groups
have been campaigning against them, too, against record companies and
so on. There is a law against video and film porn—in fact, this
Bill is supposed to be tightening up in that area—so why not
extend it to music lyrics? The problem with creating criminal law in
this area is that you want to enforce a law against incitement to
violence and murder, which is what those rap lyrics are doing.
Incidentally, it is not only gay people who are targeted by rap music.
For example, rap lyrics gratuitously attack women, race and religion,
encourage early sexual behaviour and the taking of drugs and celebrate
the carrying of guns and knives. How far do we want to go on this? It
is not only gay people who are targeted.
The point that I want to make
is that it was suggested that the current law on incitement is
insufficient to deal with rap artists—I heard Beenie Man
mentioned, whose lyrics incite people to murder homosexual people.
However, there are two points to make. First, Ben Summerskill was not
quite right to suggest that it is only a particular group, such as
homosexuals, that needs to be identified. There is a case, el-Faisal
2004, where Mr. el-Faisal, who was an extremist Islamic
preacher, was convicted in 2003 of incitement to murder under existing
legislation—section 4 of the Offences against the Person Act
1861. What was he doing? In a number of speeches that were recorded and
distributed, he was inciting or exhorting audiences to kill Americans,
Jews and others indiscriminately.
I want to draw to the
Committee’s attention to another point, which is something that
we began to consider only today, so I accept that it needs further
analysis and consideration. The Serious Crime Bill is going through
Parliament at the moment, and it is interesting that, in July, Gordon
Brown stated clearly that that Bill was being brought in to fill the
gap and extend the law to cover where incitement legislation did not
cover. I know that the Bill is awaiting its remaining stages in the
Commons before it receives Royal Assent, but it repeals the
common law offence of incitement and replaces it with a series of
offences of encouraging or assisting an offence. In our view, from an
early examination, it is intended to cover—or should
cover—the lyrics that Stonewall is complaining about.
For example, that Bill was
introduced following a Law Commission report that specifically intended
it to fill the gaps in incitement law and to clarify
the law on incitement because of current uncertainties. If we are
reading it right, the Government intend to widen incitement law under
the Bill. If that is right, they are extending the law to catch people
who encourage crime, even if no specific offence is committed. It is
reform law, not codification of existing law. If I am right, we already
have a set of new provisions coming in. Admittedly, I cannot be certain
today what the Bill will achieve, but in our view—I could go
into a lot more detail about existing legislation—we feel that
existing legislation or legislation that is provisional at this stage
is sufficient to address the gap that Stonewall particularly wanted to
fill.
Mr.
Hollobone:
We were given several specific examples by
Mr. Summerskill in a previous session, and I want to
highlight one that involved a prayer rally outside Parliament this
January, where a gentleman was
shouting
“Don’t
allow homosexuals to pervert these
children”.——[Official Report, Criminal Justice
and Immigration Public Bill Committee, 16 October 2007; c. 77,
Q172.]
Mr.
Summerskill’s view was that that was almost certainly incitement
to homophobic hatred. What is your response to that
accusation?
Don
Horrocks:
I heard him say that, and I just wonder
whether he took exception to the word “perversion”, which
might mean one thing to one person but which is also a religious word
and might mean something else to another person. I think our feeling is
that his comments did not stand well with the rest of what he said. I
know that he has indicated that he wants some form of legislation that
refers to temperate language, whatever that might mean—I know
that it is not a legal definition. To many people, that might suggest
applying a very much lower threshold of toleration than we have, for
example, in the Racial and Religious Hatred Act.
I received a request to put
before the Committee a reaction to that particular comment by Ben. It
came from black Church leaders, one of whom is a member of the
Metropolitan police service’s all-faith forum for safer
neighbourhoods. Referring to Ben Summerskill’s comment
“that he was ‘shocked that
the Metropolitan Police gave some fringe protesters permission to
demonstrate outside Parliament...carrying posters inciting hatred
against gay
people.’”,
the
writer
comments:
“I
was involved in making the
posters.”
Incidentally,
may I say that I was present on that occasion as well? The writer
continues:
“Whilst
Mr. Summerskill typifies the protest as inciting homosexual
hatred another gay journalist did not. Nicholas Chinardet, (who was
there) wrote in Pink News: ‘People were singing and
brandishing placards reading “Cry Freedom”,
“Christians Awake”, or “Back the
Bible”’. Some Stonewall supporters turned up and sought
to engage some of the protesters in argument. Mr. Chinardet
referred to the ‘mostly good-mannered debate’.
The BBC report of the protest
shows other placards, including, ‘Freedom to Believe’,
‘Freedom of Conscience’ and “Freedom from
Persecution”.
He then
writes:
“I am
at a loss to know which of these posters Mr. Summerskill
believes was inciting hatred against gay people. Perhaps he objects to
us quoting the Bible, singing hymns, or saying
prayers.
Ours was a
peaceful protest conducted in accordance with all the instructions of
the Metropolitan Police. Those of us who were
present”—
I was
there, and I agree with
this—
“were
expressing our concerns regarding free speech and freedom of
religion.”
Speaking
of Mr. Summerskill and his supporters, the writer says that,
if such expressions fall within
the
“definition of the
sort of thing that they want to see outlawed under an incitement to
homophobic hatred
offence”
it seems to us
that
“They do
not want to ban hatred. They want to ban
dissent.”
He
concludes:
“Freedom
of speech, if it means anything at all, must include freedom to offend.
Last year, the Black Churches vigorously campaigned about the proposed
incitement to religious hatred law so that Ben Summerskill and others
had the freedom to attack our religious
beliefs.
We defended
the rights of those who disagree with our Christian faith. How about a
level playing field? Please reject the proposal for an incitement to
homophobic
hatred.”
I am
sorry for the extended quote, but I think that it makes the point, and
it comes from someone who actually organised the
protest.
4
pm
Q
298
Mr.
Heath:
You made some references to the religious hatred
legislation, on which many of us worked hard. I would be interested to
hear your views about the outcome of that legislation after we had done
our work in the Commons, and their lordships had done their work in the
Lords. Do you feel that the outcome was satisfactory from your point of
view?
Don
Horrocks:
I think I made our views quite clear in my
submission to the Committee. We never wanted that
legislation.
Don
Horrocks:
We were opposed to it, and we still are.
Given that it was going to proceed, however, the outcome was the best
that could have been achieved. It is interesting that we campaigned
against that Bill along with a lot of other groups that are not in the
religious lobby. It was seen as some sort of victory for free speech.
The fact that the law does not seem to have been used terribly much
since, and the fact that it makes it absolutely clear to many people
what they can and cannot say without fear of being prosecuted, means
that it was probably the best
outcome.
There are
still reservations about it. The police have to action the law and make
decisions, often at the point of speech, about whether something
constitutes an offence, and there is still a feeling that it is too
much to expect them to get it right. We have on record instances when
the police have got it wrong and we have had to complain to chief
constables. Police have been round to people’s houses and warned
them; we have then
contacted the chief constable, who has admitted that they were wrong,
and they have had to go round and apologise. In the meantime, a chill
factor has been brought into community relations. We are still worried
that that is going on even now with that Act in place, but I suppose
that I would have to say that it is the best that could have been
achieved. We would still like there to be no Act at
all.
Q
299
Mr.
Heath:
That is interesting. I was going to come on to that
point. One thing that many of us feared was not the prosecutions that
would take place but exactly what you describe: the chill effect. What
assessment have you made of the extent to which that has happened since
the provisions of the 2006 Act in its final form were
enacted?
Don
Horrocks:
Time will tell. It is still early
days—it has only just come on to the statute book, on 1 October
if I remember rightly. Perhaps the police are being more informed about
these things. Certainly, not many incidents have been reported to us
recently, but it is too early to tell from
experience.
Don
Horrocks:
Yes.
Don
Horrocks:
I understand that the
anti-homophobic hatred legislation and the equivalent religious and
racial hatred legislation was brought in quite some time
ago—about 2004, if I am
right.
Mr.
Burrowes:
Was not the hatred legislation brought in
previously? The harassment provisions came in in the order, but the
hatred provisions came in
earlier.
Mr.
Heath:
Whichever. We have existing law in Northern
Ireland, and I am just trying to find out what the consequences of it
have
been.
Don
Horrocks:
I can only make some
observations on that. As far as I understand, the laws have just not
been used at all. We have had no reports of their having been used. Of
course, the argument was advanced during the passage of the Racial and
Religious Hatred Bill that those laws should form a precedent, in the
way that existing race hate laws were used. The fact that they have not
been used was advanced as an argument for why the Bill was needed. It
was rejected at the time because they were not seen as helpful
precedents, because race and religion were very different, as are race
and sexual orientation or sexuality—in the latter case, you are
dealing with controversial topics. Also, we are talking about behaviour
and ideas on which there are legitimate areas of
disagreement.
My
observation about Northern Ireland, why that has been the case and why
the precedents are not necessarily compelling is that there is a
different
religious and cultural situation over there. Northern Ireland and the
mainland are very different. The police over there are very, very
sensitive and concerned about protecting freedom of speech, precisely
because of community tensions. The feeling that I get from over there,
certainly from what I have been told, is that if any of those laws were
used, floodgates could open. There has therefore been a keenness not to
use those laws.
In
addition, it might be worth saying that the harassment law that was
included in the sexual orientation regulations in Northern Ireland was
struck down in the High Court by judicial review. It was struck down
because of its rushed introduction and because of concerns over free
speech and religious liberties. That harassment law had been declared
by the Government to be compliant with the European convention on human
rights, but the High Court disagreed. The Government had gone too far
and rushed the legislation through without proper
consideration.
The
judicial review concluded, if I may summarise it, that the orthodox
Christian position is that the practice of homosexuality is sinful and
that that belief is protected by article 9. For that reason it was
struck down. If that shows anything at all, it shows the mistake of
rushing ahead with legislation without checking whether the balance is
right.
Q
302
Mr.
Heath:
May I return you to this core point? In Northern
Ireland, the homophobic hate provisions are based on the race hatred
legislation. I am not an expert on Northern Ireland, but I do not think
that those provisions have in any way stopped fairly vigorous
profession of faith among the evangelical community. I am making a
genuine attempt to discover the extent to which the chilling effect,
which I accept is a perfectly proper and real fear among many people,
has had an effect in that Province. I am struggling to find out why the
situation should be so very different in Northern Ireland compared to
Scotland, England or
Wales.
Don
Horrocks:
I share your struggle. All I am able to
discover from that is that the sensitivities in Northern Ireland are
different from over here. Incidentally, it occurs to me in passing that
if the legislation in Northern Ireland is so effective, why has
Stonewall not used it to ban rap lyrics
there?
Q
303
Mr.
Burrowes:
On consultation, have you been formally
consulted by the Government on a draft provision for this
Bill?
Don
Horrocks:
About an amendment, no, not at
all.
Q
304
Mr.
Burrowes:
What was the timing and the level of
consultation in relation to the Racial and Religious Hatred
Bill?
Don
Horrocks:
Right from the
outset—the Home Office at the time asked us to be involved with
the whole process right from the beginning, and we were. It was very
constructive for some considerable time because we tried to reach a
constructive solution. There
came a point when the Minister determined to go along a route that we
felt was unacceptable. At that point, with great sadness, I said to the
Minister that we would have to campaign against it. There was a lot of
constructive working and both sides were sad that we could not reach a
constructive way
forward.
Q
305
Mr.
Burrowes:
Dealing with the present situation, what would
you say the present effect of legislation is on Christians practising
and Christians talking about their views on
homosexuality?
Don
Horrocks:
As I indicated before, we feel that there
is no need for this legislation. We feel that there is sufficient
legislation. The current law is sufficient. If my comments earlier
about legislation in the pipeline are right, there is even more
rationale for that
view.
Were this
legislation to pass, we feel that there could be an impact similar to
the impact that we warned about during the passage of the Racial and
Religious Hatred Bill, which Parliament agreed with. At the end of the
day, there would be a severe impact on freedom of speech: on legitimate
disagreement, legitimate argument, even on the legitimate causing of
offence and the legitimate expression of hatred. Let us admit that
there is a legitimate expression of hatred. The Bible encourages
Christians to hate sin. So if one accepts that there is a legitimate
expression of hatred, the fear is that if the Bill is drawn in a way
that has such a low threshold as Ben Summerskill has suggested, and as
seemed to be proved by his comments on the protest in Parliament
square, we would be very concerned. We feel that it would have a
chilling
impact.
Q
306
Mr.
Garnier:
Clearly Mr. Summerskill is concerned
that you will not only hate the sin but will hate the sinner. I will
not put words into his mouth, nor do I represent him in any way, but I
want to try to get from you is an understanding about what they appear
to fear, which is that groups such as those that you represent,
irrespective of your motives and your genuine Christian beliefs, could
lead to people like him and individuals and groups living in fear of
the consequences of hatred and disapproval.
Don
Horrocks:
I understand that. I could equally say that
the consequences of this legislation could cause Christians and other
people to live in fear. I was interested to hear the Police Federation
representative yesterday saying that the police are in fear of not
being seen to act. If a climate of fear is being introduced, on which
side is it actually coming? If you want me to be theological in
answering your question, yes, Christians do hate the sin rather than
the sinner. Let me ask, why do we always talk about Christians in this
debate? I am a Christian, but we are talking about religion and belief,
not just about Christianity. Most of the major religions take the same
approach here.
We are
not talking about inciting people to hatred. I have never come across
incitement to violence and murder, which is where we believe the law
should really be reaching. Even Peter Tatchell made it clear that he
did not like this legislation and that the existing legislation should
be strengthened—or actually used, because it is there—to
tackle incitement to violence and murder, whereas expressing views,
however offensive they may be, should not be the subject of
legislation.
I heard Ben Summerskill say that
some people would take exception to the statement that certain people
with a certain sexuality will burn in hell. That was seen to be
offensive and certainly intemperate. I am not commenting on whether
that is intemperate or not, but it is in the Bible. Are we going to ban
the Bible for intemperate language? There is some pretty intemperate
stuff in there. My fear is about where we are going to draw the line on
this.
The
Chairman:
May I come in again from the Chair? We have not
heard a bleep yet out of Dr. Louise Brown. I am wondering whether, from
her position as policy research consultant, she wants to add to the
very positive responses that Mr. Horrocks has
given.
Dr.
Louise
Brown:
Two main points need to
be made. If you go through the existing law you will find that there
are a lot of statutes that already deal with this matter. For example
section 146 of the Criminal Justice Act 2003 includes tougher sentences
for offences motivated by hatred of the victim’s sexual
orientation. As we know, under the Public Order Act 1986 it is an
offence to use threatening, abusive or insulting words or behaviour in
a way that is likely to cause harassment, alarm or distress. This has
been used to arrest people for making homophobic comments. There is
also the Protection from Harassment Act 1997, which makes it a civil or
criminal offence to harass somebody. There are offences for actual
bodily harm and assault under the Offences Against the Person Act 1861,
and the offence of common assault under section 39 of the Criminal
Justice Act 1988.
In addition, a comment was made
on 11 October 2007 in a press release from the Crown Prosecution
Service that
“homophobic
crime is being tackled head-on, and with
success,”
and that is
happening within the existing law. The other point is about current
levels of
crime.
4.15
pm
Dr.
Louise
Brown:
Current levels
of crime in this area do not justify changing the law. The Metropolitan
police performance briefing shows that homophobic hate crime is down by
8.5 per cent. and talks about figures of 1,294 incidents in 2005-06 and
1,184 in 2006-07. That compares to racist hate crime, which is down by
11.9 per cent., from 11,322 incidents in 2005-06 to 9,976 in
2006-07.
A comment
was made in response to Question 165 referring to the Crown Prosecution
Service saying that there has been a 167 per cent. rise in the number
of convictions, but according to the figures for the period between
April 2006 and March 2007, the Crown Prosecution Service prosecuted 822
cases identified as having a homophobic element, compared with 600
cases in 2005-06. Those are the actual figures. They are divided into
42 Crown prosecution areas, and these are the figures for the
equivalent in the 43 police forces for the whole of England and Wales.
They illustrate the low level in the whole of England and Wales of
crimes with a homophobic
element.
Then we must
look at the Home Office figures, which say that nationally, the police
recorded 50,000 racially
or religiously motivated hate crimes last year. The British crime
survey, which is based on interviews with a wide sample of people and
picks up crimes that are not reported to police, indicated that there
were 260,000 such events last
year.
Then we come to
what the Metropolitan police say. They reported 11,799 incidents of
racist and religious hate crime and 1,359 incidents of homophobic hate
crime in the 12 months to January 2006. However, the police estimate
that most racist and religious hate crime, and as much as 90 per cent.
of homophobic crime, goes unreported.
I would say that if you look at
the figures from sources such as the Home Office and the Crown
Prosecution Service, they illustrate that the law appears to be
justified in the current areas of racially or religiously motivated
hate crime, but not to crime motivated by sexual orientation, which the
new law proposes to address. Even if 90 per cent. is unreported, we are
talking about 800 cases in the whole of England and Wales. I appreciate
that in those figures there are differences because
“incidents” now include both crimes and no
crimes.
Q
307
Mr.
Burrowes:
In Committee, it is likely that an amendment
will be tabled, but the evidence about the need for the provision might
not be considered. Let us go beyond the issue and presume for a moment
that there may be a need for an offence. If one makes that presumption,
taking into account the evidence provided about the number of incidents
that suggest a lack of clarity in how the police deal with such
incidents—Ben Summerskill acknowledged in his evidence that the
police can be heavy-handed—what is needed to clarify the issue
of freedom of speech and the elements of an offence so that it is clear
what is and is not an
offence?
Don
Horro
ck
s:
It is extremely
difficult, which is why, I imagine, that the Committee is deliberating.
Can the law really tackle an area that deals with speech and judgments
on it? We thought that new section 29J inserted by the schedule of the
Racial and Religious Hatred Act 2006 attempted to do that. In other
words, if a decision is made that this legislation must pass—in
this case, we do not accept that it should—we would want an
equivalent to that new section 29J in order to make it absolutely clear
what people can and cannot say.
As I understand it, if no one
was sure, and someone made a certain comment, the police would tell
them that they were under investigation or suspicion, and the case
would go to the Crown Prosecution Service, after which it would pass to
the Attorney-General. I think that Mr. Summerskill was
telling us that, after that process, which could last 18 months, a jury
would decide. I feel that the impact of legislation such as that, which
introduces confusion, rather than clarity, would be deleterious to
community relations and the
public.
Q
308
Mr.
Garnier:
We can be reasonably sure that the Government
will introduce something because the Secretary of State said that he
would. It will be no surprise, therefore, when the Minister of State or
the
Under-Secretary of State at the Ministry of Justice introduces a measure
in Committee. We do not know what it will look like, but perhaps we
will next week. For present purposes, however, let us set aside your
arguments for why there should not be such a law, although they have
plenty of intellectual coherence about them. There is going to be one;
we have to deal with the world as it is, and not as we would like it to
be. Given that that is the case, do you think that at the very least
such a law should require intention to cause harm, be it physical or
mental?
Don
Horro
ck
s:
We made it
clear in our submission that, given that the legislation would proceed,
we required something similar to new section 29J and that intent should
be spelled out clearly—not something like
“recklessness”, which is a very vague concept. We had the
argument about “recklessness” during the progress of the
Racial and Religious Hatred Bill, and the term was rejected for being
far too vague as a legal concept, and unworkable.
In addition, the language would
have to be threatening, as is required in the 2006 Act. If you recall,
originally, the concepts of “insulting” and
“abusive” were also in there, but were transposed to new
section 29J, which put them on quite the opposite side of the fence,
because it meant that actually people could abuse and insult religious
beliefs and people who held them. We were quite happy with that. I
remember standing on a platform with Blackadder and agreeing with him
that he could abuse and insult me. We agreed with that, and we do not
want this Bill to be any less
clear.
Q
309
Mr.
Burrowes:
Aside from what is or will be in this
legislation, what do you think should be prohibited and criminalised in
the context of
homophobia?
Don
Horro
ck
s:
Incitement to
murder and violence seems to me to be the area that is most workable
and gets at what we really want to prevent. As Shami Chakrabarti has
made clear, surely more speech legislation and
authoritarianism—interference with everyday discourse and so
on—cannot be the right legislative path. Our view is that the
Bill should be used to get at the real problem. If rap lyrics are
identified as a problem, let legislation or some monitoring body be
introduced to oversee the whole industry. Such a suggestion has been
made. The problem can be tackled in that way. Do not introduce
something because rap lyrics are a problem for one group and end up
effectively making every preacher in the land wonder if he is breaking
the
law.
Q
310
Maria
Eagle:
I have listened with great interest to what you
have had to say. I sense that the answer to my question will be yes,
but do you and the constituent parts of the alliance that you represent
believe that inciting people to hate others because of their sexual
orientation is
wrong?
Don
Horrocks:
Yes, and we have stated that
unambiguously.
Q
311
Maria
Eagle:
I have heard what you said about freedom of speech.
Freedom of speech is obviously tremendously important in a democracy,
but do you accept that there always have been and always will be
some restrictions on freedom of speech? We have never had a complete
lack of restriction on freedom of speech. The law intervenes in places.
Do you accept that that is
right?
Don
Horrocks:
I accept that. It is interesting that I
have been involved in that discussion most often from the perspective
of those who want to get rid of the blasphemy laws for that very
reason.
Q
312
Maria
Eagle:
You may never accept that there is a need, but if
it were the view of the Committee, the Government or those in
Parliament who were voting on such matters that there were a need for
legislation such as that which we are discussing, with appropriate
safeguards in respect of expressions of religious belief, teachings and
so on, would you expect it to be able to work with appropriate
safeguards?
Don
Horrocks:
What we would like is to work
with the Government in helping to frame that and to be involved in the
discussions before it is set in tablets of
stone.
The
Chairman:
Dr. Louise Brown sought to catch my eye to make
additional comments in response to the Minister’s
question.
Dr.
Louise Brown:
I just wanted to add the point that is
important in relation to freedom of speech. One of the things of
concern is, for example, that it appears that we are already living in
a country in which there is an atmosphere of unease and a real fear
that any criticism, even if it were justified criticism, of homosexuals
may lead to a person being labelled “homophobic”. This is
not only seen in Christian cases. I draw attention to the recent
incident at Wakefield council when professional
social workers did not investigate sexual abuse by a homosexual foster
couple as early as they should have, partly due to the fear of being
labelled “homophobic”. The proposed criminal law would
make that type of fear even greater, with the even more severe label of
“homophobic hate crime”. The consequent serious effect on
free speech and the potential disastrous consequences for child abuse
and similar matters in the future is something that has to be
considered in great
depth.
Maria
Eagle:
As the Minister responsible for this part of the
Bill, I want to say that we will be sharing proposed drafts with
interested parties not only those in Committee, but organisations such
as Stonewall and the Evangelical Alliance. People will get the chance
to see the drafts—well, the
draft.
Q
313
Mr.
Garnier:
May I ask through you, Sir Nicholas,
when the drafts are likely to be seen? It would be of some reassurance
not only to the present two witnesses, but others, such as
Mr. Summerskill, to have some idea of the timetable for the
appearance of the
drafts.
Q
314
Maria
Eagle:
It will certainly be ahead of the
Committee’s consideration, but at the moment I cannot say
precisely
when.
The
Chairman:
That is probably an appropriate point at which
to end our evidence taking this afternoon. Before I ask the Government
Whip to move the motion, I wish to say to both Dr. Louise Brown and Don
Horrocks that we are grateful for the forthright, transparent and
interesting evidence that you presented to the Committee this
afternoon. On behalf of the Committee, I thank you very
much.
Further
consideration adjourned.—[Mr.
Khan.]
Adjourned
accordingly at half-past Four o’clock till Tuesday 23 October at
half-past Ten
o’clock.
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