Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill

The Government still does not know how many mothers of dependent children are in prison. It also does not know how many children are separated from their mother by her imprisonment. Despite this Committee’s repeated recommendations that it should collect this data, the Government’s insouciant approach continues to keep a group of children invisible to policy makers, the courts, the Prison Service and other support services. A lack of data inhibits the ability of the Government, prisons and local authorities to design and evaluate services for children whose mothers are in prison. It prevents children whose primary carer has been separated from them, through no fault of their own, from accessing the support that will help them during and after their mothers’ sentence, and ultimately shows a blatant disregard for the rights of the child, as well as their parents’ right to family life.

We therefore propose inserting an amendment to the Police, Crime, Sentencing and Courts Bill. This amendment imposes a requirement on the Secretary of State to collect and publish data on the number of prisoners who are the primary carers of a child and the number of children who have a primary carer in custody. This amendment is set out as amendment 5 in the annex to this Report.

The Government should adopt our new clauses to the Police, Crime, Sentencing and Courts Bill to ensure data about primary carers in prison, and their dependents, is adequately captured and reported.

We are not clear why an increase in police numbers will automatically increase the female prison population, and as such recommend that the Government writes to us, setting out its modelling and assumptions on which it has based its decision to expand the capacity of the prison estate due to the increase in police officers.

Whilst there have been some minor changes to guidance to try to give greater visibility to the obligation on the court to consider the best interests of children when a primary carer is sentenced to custody, there are strong risks that this will continue to be too little to be effective for those children whose lives are torn apart in these processes. However, we disagreed in 2019 when the Government did not think it necessary to put the consideration of the welfare of children whose parents are sentenced to prison on a statutory footing, and two years later, we continue to disagree. We cannot see how the welfare and best interests of children are being sufficiently considered if their welfare and best interests are not prioritised as a consideration when a parent is sentenced. We hope that the Government takes the opportunity of the Bill to reconsider its position.

We propose amendments 1–4 set out in the annex of this Report. These amendments: a) amend section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child (Amendment 1); Children of mothers in prison and the right to family life: 13 The Police, Crime, Sentencing and Courts Bill b) amend section 52 Sentencing Act 2020 to require a sentencing judge to state how the best interests of a child were considered when sentencing a primary carer of a dependent child (Amendment 2); c) reflect the requirement for a sentencing judge, when sentencing a primary carer of a dependent child, to consider the impact of a custodial sentence on a child (Amendment 3); and d) reflect the requirement for a judge to consider the impact of not granting bail on a child when determining, in criminal proceedings, whether to grant bail to a primary carer of a dependent child (Amendment 4).

These new clauses merely reflect what ought to, but sadly often does not, happen to consider and respect the rights of the child when a primary carer is sentenced. We hope that their inclusion in statute will help to ensure that the rights of these children are not ignored in the future.

The Police, Crime, Sentencing and Courts Bill is an opportunity to ensure that the best interests of children are upheld when sentencing a primary carer. We recommend that the Government adopts our amendments to the Police, Crime, Sentencing and Courts Bill to ensure that the best interests and welfare of children are suitably prioritised, and their rights protected when a primary carer is sentenced to prison. (Paragraph 23) 14 Children of mothers in prison and the right to family life: The Police, Crime, Sentencing and Courts Bill

The ECHR is intended to provide rights that are “practical and effective” not “theoretical and illusory”. A right to peaceful protest would not appear to us to fulfil this requirement if the peaceful protest cannot be seen and, crucially in this context, heard. A power that would allow the police to move the location of a demonstration, limit its numbers or duration, or even to silence certain shouts or chants, in order to suppress noise is therefore of significant concern.

Using multiple terms that are open to wide interpretation, such as “intensity” and “serious unease”, leaves an excessive degree of judgment in the hands of a police officer. This is likely to prove challenging to the police, who already have significant responsibility for ensuring that demonstrations are lawful and safe. It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.

The proposed new trigger for imposing conditions on public processions and assemblies represents a restriction on the right to protest that is not necessary in a democratic society. Such a trigger would not address the forms of protest that have been identified by the Government as problematic. Neither the police nor HMCIFRS called for a new trigger based on the noise generated by demonstrations. In addition, the law already provides a range of powers to deal with noise that impacts on the rights and freedoms of others to such an extent that interference with Article 10 and 11 rights would be justified. The new trigger for imposing conditions on processions and assemblies based on the noise they generate should be removed from the Bill.

While a single person will not be exercising their right of free assembly when protesting, they will still receive protection for their freedom of speech under Article 10 ECHR. All of the concerns set out above in respect of the proportionality of imposing conditions on processions and assemblies based on noise apply equally to this unprecedented power to impose conditions on one-person protests—with the addition that a single protester has less ability to produce seriously disruptive noise than a large assembly or procession. Clause 60 should also be removed from the Bill. (Paragraph 64) Other changes to the law governing processions and assemblies

We respect the police call for the types of conditions that can be imposed on assemblies to be expanded. However, the power to limit the numbers, duration and location of a public assembly already allow very significant controls to be placed on ongoing and prospective assemblies, and the longstanding distinction between processions and assemblies recognises the greater potential of moving demonstrations to cause serious disruption and the need to control their routes. Completely removing the limits on the conditions that can be imposed on assemblies, particularly when coupled with the proposed new trigger based on noise, would increase the risk of Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order) 41 peaceful assemblies being unnecessarily restricted in breach of Articles 10 and 11 ECHR. Nevertheless, we can see that the ability to control an assembly’s start and finish times, where a trigger is satisfied, would be a reasonable and proportionate addition to police powers. The Bill should be amended to limit the changes to the conditions that may be placed on public assemblies to the addition of a condition as to the start and finish times of an assembly.

Any clarification of the meaning of ‘serious disruption’ will impact on the use of police powers to restrict the exercise of rights under Articles 10 and 11 ECHR and requires careful scrutiny. At this stage the content of the proposed regulations is unknown, which leaves us unable to assess their likely impact on the right to peaceful protest. If there is a particular clarification of ‘serious disruption’ that the Home Office considers is currently needed, perhaps as a result of the Extinction Rebellion protests of 2019, it should be made clear now so that it can be considered while the Bill is being scrutinised. If no need for particular clarification has yet been identified, then we struggle to see how the powers contained in the PCSC Bill can be considered necessary.

The Government should provide clarification of these terms on the face of the Bill. If they are not prepared to do that, at the very least the Government should publish the regulations they propose to make under this section promptly to allow Parliament, and in particular the Joint Committee on Human Rights, to consider them before scrutiny of the PCSC Bill has concluded.

We accept that there is a potential loophole in the offence of failing to comply with a condition lawfully imposed by the police. However, we are concerned that the PCSC Bill would amend this offence in a manner that would go much further than is necessary to close this loophole, amounting to a disproportionate interference with the right to peaceful protest. Clause 56 must be amended to ensure that while the loophole identified is closed the offence cannot sweep up innocent participants in peaceful protests.

Criminal sanctions for peaceful protest require compelling justification. We do not believe that the need for increased penalties for failing to comply with conditions imposed by the police has been made out. There is a real risk that more substantial penalties would have the effect of dissuading people from exercising their right to engage in peaceful protest. The clauses that increase penalties for breaching conditions placed on protests should be removed from the Bill.

The lack of collection and publication of data on conditions makes it harder to assess the efficacy of existing laws and the need for new ones like those contained in the PCSC Bill. The collection and publication of data on conditions in one central database would assist local police forces, the NPCC and protest organisers. Local police forces could use this data to inform their own decision-making processes, and any useful lessons could be reflected in the NPCC Public Order Authorised Professional Guidance. It would also improve police accountability to the public and help protest organisers understand the nature of conditions that are imposed. The NPCC and local police forces should work together to ensure the routine recording, collection, and publication of data on conditions imposed at protests. Any data must be easily accessible to the public. (Paragraph 93) 42 Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order) Statutory public nuisance offence

We have serious concerns about the new offence being included in Part 3 of the PCSC Bill, especially given the broad drafting which would catch non-violent protest. Protests are by their nature liable to cause serious annoyance and inconvenience and criminalising such behaviour may dissuade individuals from participating in peaceful protest. Under the current law there are a plethora of offences already available to the police, such as obstructing the highway. As a matter of practice, where a more specific offence is available the police should charge that offence unless there is a strong justification for not doing so.

The essence of the public nuisance offence is causing harm to the public or a section of the public. However, as drafted, the offence is confusing and could be read as meaning the offence is committed where serious harm is caused to one person rather than the public or a section of the public. This does not achieve clarity for either the police or protesters. The current drafting also risks the offence being broader than the common law offence it replaces. The Bill must be amended to make clear that the offence of public nuisance will only be committed where serious harm is caused to the public or a section of the public.

The reasonable excuse defence in the statutory public nuisance offence is not clear enough for police and protesters. As the Law Commission report noted, the defence should apply where an individual is exercising their Convention rights. The Government must amend the reasonable excuse defence to public nuisance to include an express reference to Articles 10 and 11 in the defence. This would provide clarity for the courts and make clear to the police that they must give significant weight to the right to protest when deciding whether to charge the offence. This is especially important where the offence is being considered in the context of non-violent protest.

We welcome the Government’s commitment to ensuring access to the Parliamentary estate for those who have business there. However, it is important that protesters can protest outside democratic institutions and have their voices heard. The police should use the new powers sparingly and only when necessary to ensure access to the Parliamentary estate.

The right to protest is a fundamental right in a healthy democratic society. Public authorities, including the police, are under a negative obligation not to interfere with the right to protest unlawfully and a positive obligation to facilitate peaceful protest. Therefore, it is concerning that current rhetoric focuses on the inconvenience sometimes caused by protest rather than its value to society. This must be addressed. The Police, Crime, Sentencing and Courts Bill should introduce statutory protection for the right to protest, setting out both the negative and positive obligations of the State in relation to protest. (Paragraph 128) Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order) 43 Declaration of interests 100 Lord Brabazon of Tara • No relevant interests to declare Lord Dubs • No relevant interests to declare Lord Henley • No relevant interests to declare Baroness Ludford • No relevant interests to declare Baroness Massey of Darwen • No relevant interests to declare Lord Singh of Wimbledon • No relevant interests to declare 100 A full list of Members’ interests can be found in the Register of Lords’ Interests: http://www.parliament.uk/ mpslords-and-offices/standards-and-interests/register-of-lords-interests/ 44 Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order)

Václav Havel once said that the litmus test of a civil society is the way it treats its Gypsy, Roma and Traveller community. The Government can do better to protect that way of life and do more to tackle the discrimination that Gypsies, Roma and Travellers continue to face. While a small minority of the travelling community pose challenges for local authorities and law enforcement, the vast majority of Gypsies, Roma and Travellers are law-abiding exponents of a centuries-old way of life. The Government must take particular care to ensure that its actions do not exacerbate the discrimination that continues to be faced by the Gypsy, Roma and Traveller Community.

Whilst the Government must protect the rights of all concerned, they should not use the criminal law to address what is essentially a planning issue. Gypsy, Roma and Traveller communities often have little option available to them other than unauthorised encampments, because local authorities are failing to build a sufficient number of authorised sites.

If the Government nonetheless continues to pursue proposals to criminalise unauthorised encampments, the Government should reintroduce a statutory duty on local authorities to make adequate site provision for traveller communities. This would likely have a much greater effect on reducing the number of unauthorised encampments than the imposition of a new criminal offence.

Without amendment, the Bill is likely to be in breach of the right to respect for private and family life under Article 8 ECHR. To criminalise unauthorised encampments without providing sufficient authorised sites would be contrary to the Government’s obligation to facilitate the Gypsy, Roma and Traveller way of life. We therefore propose that Clause 61 should be removed from the Bill.

We recognise, however, that the Government is likely to retain this Clause. As such, at a minimum, we propose an amendment to the Bill which would only permit criminal sanctions on people living on an unauthorised encampment in circumstances where an adequate authorised site had been made available by the local authority. This is likely to be a more proportionate interference with Article 8 ECHR rights, as well as rights to health and education for the Gypsy, Roma and Traveller community.

The Government’s proposals, as they stand, are likely to be in contravention of the requirement under Article 14 ECHR that human rights and freedoms be secured without discrimination. Clauses 61 to 63 of the Bill have the potential to discriminate against Gypsy, Roma and Traveller people, putting at risk their right to practise their culture without being unfairly criminalised and are likely to be subject to legal challenge, if unaltered.

The wording of Part 4 of the Bill is too vague and offends the principle of legal certainty, which is vital when dealing with criminal law. No person should be 22 Legislative Scrutiny: Police , Crime, Sentencing and Courts Bill (Part 4) punished through laws that lack sufficient legal certainty (Article 7 ECHR) and, moreover, no person’s human rights should be interfered with by laws that lack sufficient legal certainty.

The new offence relates to what someone perceives a person may “intend” to do, or damage they are “likely” to cause, “if” they reside on land. The language of the new offence uses multiple terms that are open to wide and often subjective interpretation and as a consequence will allow for prejudice and discrimination to permeate this new offence. It is clear that any infringement of property rights can cause harm to the landowner. However, we must not criminalise people for doing no harm, particularly when those being targeted by the new offence are a historically persecuted minority group who continue to suffer discrimination and prejudice. We propose that Subsection (4)(b) of new Section 60C, as set out in Clause 61, be left out of the Bill.

The police appear to be uncertain as to how this proposed legislation will be enforced in practice. The Secretary of State is, however, expected to publish guidance for the Police concerning enforcement. This must be done before the Bill completes all stages in the House of Commons so it can be adequately scrutinised by Members of Parliament. The guidance must ensure that the exercise of these provisions is done in a manner that complies with ECHR rights.

The word “insulting” should be removed from the definition of “offensive conduct” within Subsection (8) of new Section 60C, as set out in Clause 61. Doing so would continue to catch threatening or abusive behaviour, but without risking an unjustified interference with the right to free speech under Article 10 ECHR. This would also ensure that members of the Gypsy, Roma and Traveller community would not be prosecuted for the language they use in heightened emotional situations, based on an interpretation of ‘insulting’ by other private citizens who may, in some circumstances, be influenced by conscious or unconscious prejudice against them.

There are far too many risks inherent in a system that effectively criminalises a civil law matter. This is all the more concerning given that some landowners could be motivated by overt, or unconscious, prejudice against Gypsy, Roma and Traveller people. This, combined with a lack of clarity in the language of the Bill, could lead to violations of the principle of no punishment without law (Article 7 ECHR), the right to private and family life (Article 8 ECHR) and freedom from discrimination in the enjoyment of these rights (Article 14 ECHR).

Clearly landowners have a right to ask people to leave their property. However, we propose an amendment to the Bill so that in order for this criminal offence to be committed, it would be due to a failure to comply with a request from a police officer asking unauthorised occupiers to leave private land.

New powers for the police to seize property, including vehicles, must never be used to make Gypsy, Roma and Traveller people homeless, particularly children and older people. We propose an amendment to the Bill which would ensure that the police could never seize a person’s caravan if that is their principal home and they would have nowhere else to live. (Paragraph 59) Legislative Scrutiny: Police , Crime, Sentencing and Courts Bill (Part 4) 23