Amendment 1

Police, Crime, Sentencing and Courts Bill - Third Reading – in the House of Lords at 3:36 pm on 25th January 2022.

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Lord Falconer of Thoroton:

Moved by Lord Falconer of Thoroton

1: Clause 3, page 4, line 39, at end insert—“(c) manslaughter in circumstances where—(i) the death was not caused by dangerous driving or driving when under the influence of drink or drugs, and(ii) but for causing death or serious injury to the emergency worker, the unlawful act would have attracted a maximum sentence of less than five years imprisonment.”

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

My Lords, on 24 November 2021, the Government announced in a press release that they were introducing into the Bill a provision that imposed a mandatory life sentence where a key emergency worker dies as a result of manslaughter. The introduction of that provision into the Bill was not the product of any debate in this House or the other place.

On 1 December 2021, the relevant amendment giving effect to the provision that there was a mandatory life sentence for manslaughter was tabled with the Table Office. On 8 December 2021, the matter was debated in this House. A large number of Peers spoke in the debate, including the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Butler-Sloss, the noble Baronesses, Lady Fox, Lady Hamwee and Lady Jones of Moulsecoomb, the noble Lords, Lord Beith, Lord Pannick, Lord Carlile and Lord Marks, and the noble Earl, Lord Attlee. They gave a variety of reasons why the provision had particular defects; there was a range of detailed complaints about it. The noble Lord, Lord Ponsonby of Shulbrede, spoke on behalf of the Labour Front Bench and indicated that Labour accepted the amendment in principle but that there were problems with the detail.

Before there was a vote on the amendment itself, the noble Viscount, Lord Hailsham, suggested an adjournment to discuss the detail. There was a vote on that and it was rejected. There was then a vote on the amendment. Anybody fairly reading that debate would conclude that the principle of the amendment was agreed to—that this House agreed to the principle of a mandatory life sentence where an emergency worker dies as a result of manslaughter. However, nobody reading that debate could possibly conclude that the detail was treated as being resolved in relation to that.

One detail that affected many noble Lords was the consequence of having a mandatory life sentence for manslaughter if, for example, in a demonstration about, say, HS2, a demonstrator pushed over a police officer acting in the execution of his or her duty, who bumped their head—which would be common assault at worst—and died. That demonstrator would end up with a mandatory life sentence. They would not be saved from the mandatory life sentence by the exceptional circumstances defence.

This caused many people in the House considerable concern. I completely accept that the principle of the mandatory life sentence is no longer up for debate; that has been resolved. However, in conjunction with my noble friend Lady Chakrabarti—to whom I pay tribute for her work on this issue—I have crafted an amendment that does not touch the detail of the provision, in the sense that it leaves in place the principle agreed but says that, where the offence you would otherwise be charged with does not attract a sentence of more than five years, you will not be susceptible to it. This is to deal with the one-knock manslaughter case. It leads to justice and reflects where the House is coming from. I strongly commend the amendment to the House and very much hope that the noble Lord, Lord Wolfson, will address the detail.

I should deal with the point that the Chief Whip made to start with. He has left, sadly, but there you are. On amendments at Third Reading, the rules say:

“The practice of the House is normally to resolve major points of difference by the end of report stage, and to use third reading for tidying up the bill … The principal purposes of amendments on third reading are … to clarify any remaining uncertainties … to improve the drafting; and … to enable the Government to fulfil undertakings given at earlier stages of the bill.”

I accept that this amendment does not come within any of those three identified bullet points, but it is under the chapeau of this phrase:

“The practice of the House is normally to resolve major points of difference by the end of report stage”.

How can we do that when the first we heard of this amendment was on Report? Read the Report debate. Noble Lords will see that it was a Second Reading-type debate, as they would understand it. Of course that rule does not apply; it is not normal.

This is the second point made in the rules:

“Where the Legislation Office considers that amendments fall clearly outside the guidance, including, for example, amendments which are identical, or very similar, to ones tabled and withdrawn at Committee and Report … or amendments raising completely new major issues, it will advise the Lords Member concerned.”

The guidance deals with the normal circumstance whereby, if you have not resolved the major issues by the time you get to Report, it is too late to raise them at Third Reading. That is not the case here. I completely respect the Public Bill Office for giving me the advice it did because I am not acting within one of the three bullet points, but I strongly urge this House to recognise that, where a major change is introduced this late, the guidance does not prevent an amendment of this sort going through at Third Reading.

We exist to be an effective scrutinising House. After this, we will come to an IPP amendment. We went so badly wrong on that after full scrutiny. This is such an important measure. It is about a mandatory life sentence. Therefore, although I have thought earnestly about the advice I have been given, I have not thought it appropriate to withdraw my amendment. In those circumstances, I beg to move.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 3:45 pm, 25th January 2022

My Lords, I rise in support of my noble and learned friend Lord Falconer of Thoroton, who is, as your Lordships will appreciate, a former Lord Chancellor and law officer.

I reiterate that the Government came here on 8 December to commend Harper’s law to your Lordships’ House. However, in the course of that debate, to which I listened with great care, concerns were raised by every single group in your Lordships’ House about the potential unintended consequences that went beyond the Harper’s law case—a case of severe criminality that included dangerous driving that led to manslaughter. In particular, one-punch manslaughter was raised by the noble Lord, Lord Paddick, and many other noble Lords; as my noble and learned friend said, there was huge concern.

The reason why my noble and learned friend Lord Falconer is right to ventilate this today goes beyond what we believe about Harper’s law, mandatory sentences, or even judicial discretion. All of these should be of particular concern to this second, revising Chamber. The reason he is right to ventilate this issue is that where significant, potentially controversial and rights-impacting measures are to be introduced, it seems to me—and I believe to other Members of your Lordships’ House—that there should at least be two bites at the cherry. The measures should at least be looked at twice.

Without the aid of my noble and learned friend, what will happen is this: it is presented and debated once in the second Chamber—not even in the first Chamber and then the second Chamber. The vote is on the same day and that is it—because, let us be honest, this is not going to have detailed consideration when your Lordships’ amendments go back to the other place. Whatever my noble and learned friend decides—and with the greatest of respect, I totally agree with the clerk about the irregularity of his amendment in terms of procedure at Third Reading—we are forced into a gentlemen’s agreement that is not reciprocated in the other direction. There must be adequate time, and it seems to me that, going forward, any significant and controversial measure must at least be looked at twice, so that there can be an opportunity to ventilate, study it, and correct any potential glaring, unintended consequences.

Photo of Lord Grocott Lord Grocott Labour

My Lords, I came cold to this debate, as it were, to hear what was to be said. I am certainly not an expert on the law, but I have had quite a bit to do with the Companion over the years, and I remember vividly a time when it was quite routine, on Third Reading, to present amendments that clearly should have been debated earlier. The authorities of the House at the time—and I may have been part of that—decided that we needed to tighten up the circumstances in which amendments could be laid at Third Reading. But—and this is a huge “but”, which my noble and learned friend Lord Falconer has already dealt with—it was always assumed that there would be flexibility in the decision about the admissibility of amendments at Third Reading.

There were occasions—I would have come armed with them if I had anticipated this debate—when the usual channels would get together, during or after Report, and say, “Look we really can’t resolve this now, we need to put down an amendment at Third Reading”. Had it been challenged by either Front Bench or by anyone among the usual channels, that would have been resolved at that point. But nearly always, there was such a common-sense argument about, “Well, we’ll let this one go at Third Reading, the air needs to be cleared with this at Third Reading”, that it was agreed among the usual channels; it was never seen as completely Stalinist rule. Indeed, as my noble and learned friend has said, there is flexibility actually written into it. But I can say with confidence that this issue has been addressed in the past. It seems to me overwhelmingly the case, in the way my noble and learned friend described it, that quite clearly it should come within the auspices of the Companion, with the agreement of the usual channels, to be able to debate this hugely important issue at Third Reading.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct, Chair, Sub-Committee on Lords' Conduct

My Lords, I deeply regret the deformity to our law which results from the Harper amendment, made, as your Lordships know, for Third Reading. A mandatory life sentence for murder is one thing—indeed, one must recognise that, although entirely understandable, even that is questionable—but a mandatory life sentence for the manslaughter cases now spotlighted by the Harper amendment is really quite another.

I will content myself today by saying that not only may it cause a great injustice but it may be that, if one were a defence counsel in one of these cases, one would positively welcome Harper’s law and emphasise to the jury the awesome consequences of a conviction—consequences from which juries might well shrink. If this matter now goes back unamended to the House of Commons, I suggest that the other place may wish to reflect on those consequences. To pass as potentially unjust a law as this may prove to be counterproductive and a disaster for long-term justice.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I came into the debate late on the day we voted. I was really quite shocked to find what was being debated, and I listened very carefully to the contributions. Because I had not heard the Minister speak from the Dispatch Box, I did not take part in the debate; I felt that I would be criticised for coming in without having heard the full discussion. But I have practised in the criminal courts for 50 years—I was called to the Bar 50 years ago—so I can tell noble Lords that I was very alarmed at the content, and I echo what has just been said by one of our distinguished judges.

I really was concerned at the absence of discretion here. You could have such a range with this kind of manslaughter charge, and it is a shocking idea that a mandatory life sentence might be passed on someone very youthful in circumstances such as were described—you can never completely cover every possibility—by the noble and learned Lord, Lord Falconer, where the consequence of a tragedy could also lead to the double tragedy of somebody spending their life in prison because the sentence is mandatory. So I really do think we have to think twice here. Of course, we have to protect our public servants, but it is vital that we keep true to the idea that different cases require different responses, and that there have to be some exceptions.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, relatively new as I am to this House, I try to follow procedure and often fail to do so, and I am rightly reprimanded by fellow Peers when that happens and when mistakes are made. I am also very conscious of the democratic deficit of this House as unelected legislators. But, in relation to this issue, I was shocked by what I saw as an abuse of procedure by the introduction of this very important Harper’s law at such a late stage. I felt that that was bending the stick, to say the least, in terms of taking this House and its procedures seriously.

So, from my point of view, the noble and learned Lord, Lord Falconer, has explained very well that this is a modest amendment that does not try to overturn the spirit of what was passed earlier on but is trying to deal with what I think are unintended consequences that the Government themselves do not want to see—that is not their intention. But Harper’s law is not a minor matter. Since that bit of a mess by which it was passed last time, I have had some sleepless nights imagining that I might in any way be responsible for the unintended consequences that I really do not think the Minister wants to happen, but which could happen unless the Bill is unamended—which is why I support this amendment in these unusual circumstances.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 4:00 pm, 25th January 2022

My Lords, as I understand the position, the amendment, without qualification, was pressed to and supported in a Division. The normal situation to deal with the kind of question that the noble and learned Lord mentioned would be to modify that amendment by another, but that, for reasons that may be quite understandable, did not happen. Therefore, the amendment that was passed was unqualified and accordingly, strictly speaking, the rule would be as the clerk has said.

However, this House has discretion in these matters. The rules that are laid down are the best we can think of for every circumstance, but not even we can think of all the possible circumstances. Therefore, the clerk is perfectly right in this case, but justice suggests that it would be wise for the House to realise that, in this particular situation, a modification of the original amendment was certainly raised in the debate, although it was not put formally into the procedure. Therefore, to do justice in this sort of case, it would be right for the House as a whole to agree, in this very special circumstance, that this matter should be dealt with.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

I want to throw my considerable Green weight behind the noble and learned Lord, Lord Falconer. The Members opposite must realise in their hearts that this is unfair. I came into politics to make things fairer and this is not fair. It is unjust, as we have heard. Please let us debate it properly. I would vote for it—anyone can move it to a vote—and I hope it would pass.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I support my noble and learned friend Lord Mackay of Clashfern. He put this with beautiful simplicity and total clarity. He underlined the fact that, at the end of the day, we are answerable for what we decide. I deplore bringing in important things at the late stage of a Bill, which is why I withheld my vote when we were voting and not debating last week, because it made a mockery of Parliament. This is not making a mockery of Parliament; it is underlining the humanity of Parliament. I believe we should follow the sage advice of my noble and learned friend.

Photo of Lord Clarke of Nottingham Lord Clarke of Nottingham Conservative

My Lords, I apologise and feel rather guilty about the fact that I have neglected this Bill during its passage through the House because I was simply unable to attend and I decided not to participate. I came to listen to this debate to find out what was being put on the statute book, having followed it a little from a distance. This issue therefore took me completely by surprise. I have listened to the exchanges, but I thought I should add the voice of a third former Lord Chancellor and Secretary of State for Justice to the very eloquent case that has been made on both sides by the two others who share that position.

Personally, I do not approve very much of mandatory sentences, which have spread on to the statute book far too frequently in recent years in response to dramatic and publicised cases. I do accept the mandatory life sentence for murder; that is a very long-standing practice. We should deal with considerable care when we add new mandatory sentences in response to understandably emotional and dramatic cases that appear in the media but, unfortunately, responding to the media has become a feature of criminal justice Bills rather too frequently.

I rose simply to do what my noble friend Lord Cormack did: to add my voice, in so far as it helps at all, to those that have been put forward. This House would be letting itself down if it just let this go through by overstrict adherence to the normal procedures, which of course we should normally follow.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, this amendment has been tabled—in haste, it appears, as I will explain in a moment—at a very late stage in proceedings. It is not clear in its intention and appears to relate to an important category of people who I do not think any of the speakers in support of the amendment referred to. I will come back to that point.

I listened carefully to the noble Lord, Lord Grocott, who said that he came cold to this matter. Far from being cold, I have had a number of warm meetings with Members from all sides of this House on all matters relating to Ministry of Justice provisions in the Bill. I regret to say that until this amendment dropped without warning, half way through my dinner last night, none of its proposers had found the time to engage with me or approach me in any way on this matter since it was debated in your Lordships’ House. That is a matter of regret, because in my relatively short time here I have found that discussions before matters are raised in the Chamber can be very useful. Had the matter been raised with me, I would have had the opportunity—and I would have availed myself of it—of pointing out some of the confusion behind the amendment and asking the noble and learned Lord whether the amendment he has tabled is in fact the amendment he wanted to table. I will come back to that point.

Having heard the words of my noble and learned friends Lord Mackay of Clashfern and Lord Clarke and my noble friend Lord Cormack, I will not get into the propriety or otherwise but will deal with the substance of the point. Harper’s law, which is the focus of the amendment, requires the imposition of a life sentence in cases where an emergency worker is the victim of unlawful act manslaughter. The intention of the amendment appears to be to restrict this to cases that involve an underlying unlawful act that is of a certain level of seriousness. My understanding is that it seeks to do so by excluding from the scope of Harper’s law those cases in which the unlawful act that underpins the unlawful act manslaughter of the emergency worker is one that, had the offender been convicted of that as a stand-alone offence, would have carried

“a maximum sentence of less than five years imprisonment.”

There is, I am afraid, real confusion as to what the amendment seeks to do. Noble Lords who enjoy it really ought to turn to page 4, line 39 of the Bill and remind themselves that this seeks to include an exception into Harper’s law. That is very important when one sees that in proposed new paragraph (c)(i) of the amendment there is a “not”, so it ends up with a double negative.

It seems to me that there are two interpretations of this paragraph and, from what the noble and learned Lord said, I am really not sure which interpretation he seeks to put forward. The first is—bear with me here—that it appears to except from that five-year maximum category, and therefore include within Harper’s law, cases in which the death was

“caused by dangerous driving or driving when under the influence of drink or drugs,” even if the maximum penalty for the unlawful act offence was less than five years. If that is the case, it is not clear why that should be if the main thrust of the noble and learned Lord’s argument is that Harper’s law should not apply if the underlying offence carried a sentence of less than five years.

I also point out, as I am sure the noble and learned Lord knows all too well, that dangerous driving and the other driving offences here do not and cannot themselves form a basis for unlawful act manslaughter in any case, because that is the result of the decision in Andrews v DPP.

The alternative explanation of this form of words put forward by the noble and learned Lord is that the amendment appears to intend that where the unlawful act underlying the unlawful act manslaughter is one that in and of itself would attract a maximum penalty of less than five years’ imprisonment, that will be outside Harper’s law unless that act is accompanied by

“dangerous driving or driving when under the influence”, which in the context of unlawful act manslaughter would be the circumstances that render the unlawful act dangerous.

I apologise to the House for subjecting it to a disquisition on unlawful act manslaughter but this is precisely the sort of point I would have discussed with the noble and learned Lord, had it been brought to my attention before I was halfway through my main course last night. More to the point, this would be an insertion at page 4, line 39 of the Bill; it would therefore go into proposed new Section 258A, which applies where

“(a) a person aged under 18 is convicted of a relevant offence, (b) the offence was committed … when the person was aged 16 or over”.

So, this amendment to Harper’s law, which is put forward on the basis of general principle, applies only to 16 and 17 year-olds. I did not understand from any of the speeches in favour of the amendment that the principle underlying those speeches was limited to 16 and 17 year-olds. The point was put on the basis that it ought to be of general application.

Why, I ask rhetorically, since the point has not been made, is this limited to 16 and 17 year-olds? Of course, the answer is obvious: it is not intended to be limited to 16 and 17 year-olds. Again, had this amendment been shown to me before halfway through my main course last night, I would have pointed this out, with respect, to the noble and learned Lord. What we have, therefore, is a late amendment, brought without any discussion with me or my colleagues, which fundamentally seeks to uproot the position taken by this House in Committee and on Report. It also suffers from fundamental uncertainty as to what it actually does, and the fundamental problem that it seems to apply only to 16 and 17 year-olds.

Quite apart from all of that, I simply do not see any merit in restricting Harper’s law in this way. We have already taken care to ensure that the provisions inserted by Clause 3 will apply only in cases of unlawful act manslaughter of an emergency worker who is acting in exercise of their functions as such a worker. Unlawful act manslaughter, as noble Lords certainly know by now, captures those cases where an unlawful act has been intentionally performed in circumstances rendering it dangerous, and that has caused death. It is the Government’s position that the unlawful act manslaughter of an emergency worker merits a mandatory life sentence. The seriousness of such conduct and the harm it causes both to the emergency worker—obviously—and to our wider society are evident. I respectfully see no reason to limit the sentence in the way this amendment appears to intend.

I come to the point made by the noble Baroness, Lady Kennedy of The Shaws—I respectfully congratulate her on 50 years in the criminal justice system—about discretion. There is, of course, a judicial discretion built in here; we have had this debate on several occasions during consideration of the Bill. Where the court considers that there are exceptional circumstances relating either to the offence or the offender that justify the imposition of a sentence other than life imprisonment, this could be done. I accept that some people want the exception to be broader, while some people may not want an exception at all, but that has been the Government’s consistent position throughout the Bill. I find it a little surprising that, at Third Reading, such a fundamental point is apparently up for discussion again.

Before I sit down—and I apologise to the House for delaying it—I come to the “one knock” case that the noble and learned Lord has put. If a person at a protest or demonstration were to hit a police officer who was then, for example, to fall over, hit their head and, God forbid, die, that could be captured under Harper’s law if it amounted to unlawful act manslaughter. Why is that? The reason is that what has happened here is not a simple case of battery. Under the offences made out here, the offence for which the offender would be sentenced is unlawful act manslaughter, and the Government believe that that crime, when done against an emergency worker acting as such, merits a mandatory life sentence other than where there are exceptional circumstances.

For those reasons—and, frankly, with renewed regret that I am having to deal with this on the floor of the House when I could have had conversations about it in good time previously—I respectfully beg the noble and learned Lord to withdraw the amendment.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour 4:15 pm, 25th January 2022

I am incredibly grateful for the support from all around the House. I am particularly grateful to my noble and learned predecessor and my noble and learned successor for supporting me in this matter.

The response from the Minister was incredibly disappointing. It was bombastic and technical and failed to address the essential issue, which is: what about the “one knock” manslaughter case? The answer that came in the end appeared to be, “Actually, we intend to cover that.”

The Minister made one good point on the drafting. He is absolutely right that my draft covers only 17 year-olds because it refers only to page 4. I would have had to submit the same draft in relation to pages 5 and 6 as well, which, if I had got page 4 in, I am sure would not have made much difference.

This is such an important issue that I would have been tempted to obtain the opinion of the House. All around the House there has been support for it, but the only encouragement I get is the technical point the Minister made. It may be that when this comes to the House of Commons, the Government will consider that they could improve my drafting and get to the same result. In those circumstances, with regret, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 80: Key national infrastructure