Second Reading

Part of Crime and Security Bill – in the House of Lords at 6:17 pm on 29th March 2010.

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Photo of Baroness Hamwee Baroness Hamwee Spokesperson for Communities and Local Government 6:17 pm, 29th March 2010

My Lords, I first read the Bill in its original form as it started in the Commons. What struck me most, as I said to the Minister a week or two ago, was that there are so many alterations to recent legislation in it, including to some which is not yet in force. I read it as having a rather panicky tone. It asks what can be thrown into the pot of the criminal justice system and called "security" to give it some gravitas. It is ironic that the panic now in the Home Office must be over how much of the Bill can be saved.

I thank the Minister for his explanations of the Bill and congratulate him on sailing along the surface so serenely; he must have been paddling very hard beneath it. I do not want to describe the Bill as a ragbag. The issues it covers are serious, though it is not obvious that there is a common thread, except that many are subjects where the Government think they can show some muscle in a slightly populist way, or where they have been told by the courts that the current arrangements just will not do.

Having started on a negative note-and I will return to some negativity-I acknowledge some positives. I welcome the provisions on domestic violence. I declare an interest, having for many years been on the board-and indeed chair-of the charity Refuge. I learnt then that one woman in four experiences domestic violence. Men can be victims too, but statistically there are far more women in this situation. I learnt that two women a week are killed by their current or former partner in England and Wales. I will not spend time on the numbers but domestic violence is a crime. It is caused by the abuser's desire for control; it can be physical, emotional, financial and psychological; and it is not a private matter-it is a social issue.

I know that refuges have been a lifeline, but it is too easy to say that they are the solution. None of us would like to have to leave our own home for whatever reason. I cannot imagine what it must be like to face the need to find a way out of an abusive situation and pluck up the courage to leave. A refuge, good as it may be, is not home. The person at fault should leave, not the victim or the children of the relationship. A third of the residents in a refuge are children, almost always having witnessed violence. The impact on them is long-lasting and damaging. There are complicated emotions in all of this. Home, which is familiar, should be the haven.

I welcome these provisions while worrying a little whether they are necessary. I understand that the relevant provisions of the Family Law Act 1996 are not yet in force. They might have addressed some of the points. Violence and abuse is an offence. Something in what are called go orders hints at a mindset that this is not really like other breaches of the law. A go order is not a substitute for arrest and charge. I reassure myself that these provisions are pragmatic, though it is not obvious that all the ancillary provisions are appropriate.

Still on the theme of children, on ASBOs, I do not deny the importance of good parenting but I am doubtful that the intervention of the court-or the threat of intervention, as the Minister might say that these provisions are a deterrent-is appropriate or likely to be effective. We seem almost to be using the civil courts to criminalise people. These provisions do not suggest that that will be productive.

On gangs, again we are opposed to criminalising children through the extension to under-18s of gang-related injunctions, the breach of which takes us into criminal law. These have been described as a means to circumvent the protective guarantees of the criminal justice system by using the civil courts. As was said in evidence to the Commons, they would be a measure of last resort. None of the range of interventions for young people is any use unless used properly. The concern here is that this is a shortcut, bypassing the youth justice system and should be a last resort. The provisions amend the 2009 Act regarding over-18s. What assessment has there been of those provisions? The Minister referred a good deal to evidence in other contexts. What evidence do we have of the use of these provisions as they apply to the older age group?

Quickly on other provisions before returning to the largest rag in the ragbag, on stop and search, will reducing the number of items to be recorded from 10 to seven make much difference in the time that is taken? We do not oppose these provisions but they do not address the issues of huge disproportionality between different ethnic groups or the stop and search of young people and so on. They may make it more difficult to make an effective complaint or bring a civil suit in the case of unlawful stop and search. Form-filling is not necessarily needless bureaucracy. It is certainly not needless if it supports accountability.

Searching a person subject to a control order seems an example of the obvious. On these Benches we do not support control orders but, as we have them, it is reasonable to correct the oversight in the regulations. Much the same may be said about mobile phones in prisons. If the advances in technology mean that there is a technical loophole then we accept that a new provision is needed. Unlike the noble Baroness, I can see that there is a difference between taking a mobile phone into a prison and having one. Different people will commit those offences-or would-be offences.

We do not think the clauses on the private security industry are in any way adequate but they are not harmful. On air weapons, many of your Lordships will have received a letter from the Home Office preceding this Second Reading which, among other matters, talks of,

"ensuring that air weapons are safely locked up".

Legislation does not ensure anything. It creates an offence and that is different. The extension of the alcohol restriction orders seems more populist than relevant.

We welcome the scheme for those affected by terrorism overseas and congratulate the noble Lord, Lord Brennan, on his work. The Home Office letter I mentioned talks of overcoming the trauma of attack. I would not claim that money can ever do that but these provisions are more about fairness wherever the attack took place. The big "but" here is that, as the Delegated Powers and Regulatory Reform Committee pointed out, there is no commitment to implement the scheme.

The largest rags in the ragbag are DNA and the taking and retention of fingerprints and samples. I was chided by the Minister on a previous occasion when I said that the Government's approach to legislation seemed to be to push at the boundaries and wait to see if they are not knocked back. In this area, the Government have been knocked back. Importantly, apart from the merits, are the Government confident that they will not be knocked back again? The proposals in the Bill may be a little less "blanket and indiscriminate"-to use the ECHR's phrase-but there is widespread doubt that they are proportionate as regards the data retained and the length of the retention. There is a widespread view that the provisions for removal from the database are inadequate; among other things, there is no independent appeal mechanism. The Minister refers to the Government's evidence but such evidence is small and fairly thin.

Another widespread view is that the National DNA Database can and should play an essential role in operational policing. I fear the Government jeopardise that if they fail to apply the proper criteria and safeguards. The Minister will say that he cannot guarantee the outcome of any court case but can he say that the Government have had as unequivocal advice as it is reasonable to expect that what they propose will not be found wanting? I ask this as a serious question. Or, are the Government cynically trying to buy themselves a few years of illegal powers before there is another court case?

Clearly, the Government cannot leave things as they are after Marper. It is also clear that neither we nor the Tories are prepared to accept what this Bill proposes. My party starts from the point that DNA should not be retained on a database unless the person has been convicted. In our technically advanced world, the presumption of innocence over guilt should still hold and arrest should not be confused with conviction. It is argued that one has nothing to fear if one has done nothing wrong. You have something to fear as your DNA could be matched to DNA found at a crime scene because you have been there at an earlier date. It begins to look like you need to prove that you are innocent, not that the prosecution needs to prove guilt. Undoubtedly, there is a stigma. People feel there is a stigma-an implication of criminality. That is a serious point. The Grand Chamber thought so even if the Government do not.

Innocent people who may not feel stigmatised certainly feel aggrieved. Intellectually, it is more coherent to say that the database should include the DNA of every citizen rather than that of some who have been convicted and some who have been in the frame, but I accept that that is not a widely held view. Public support is essential. I do not believe that the Government have general public support for what they propose with regard to the blanket six-year retention period. Indeed, the Police Federation said that it was unsure whether public confidence could be achieved by retaining the DNA of innocent people. I have often thought that Scotland is a more advanced and civilised nation than England and, as the Government know, we would be prepared to accept the Scottish model as a compromise.

In conclusion, we have, as ever, been much assisted by the committees of this House and Parliament, by the memorandum of the Information Committee to our Constitution Committee, and by outside organisations-especially Liberty and Justice, which I thank. This Second Reading has an air of artificiality, given its place in the timetable. Certainly, it is no way to legislate, and I do not suppose that the next few days will do much to reassure anyone that the details and subtleties of the Bill are being considered as they should be.