Amendment 78

Victims and Prisoners Bill - Committee (4th Day) – in the House of Lords am 3:53 pm ar 7 Chwefror 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Baroness Thornton:

Moved by Baroness Thornton

78: After Clause 15, insert the following new Clause—“Free independent legal advocates for rape victims(1) The Secretary of State must develop proposals for a scheme to give victims of rape access to free, independent legal advocates available in every police force area in England and Wales.(2) For the purposes of this section “independent legal advocate for rape victims” means a person who is a qualified solicitor, with experience working with vulnerable people, who provides appropriate legal advice and representation to individuals who are victims of criminal conduct which constitutes rape.”

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Culture, Media and Sport)

My Lords, as well as moving Amendment 78, I shall also speak to Amendment 79 in my name, with the support of the noble Baroness, Lady Hamwee. I will speak to the other amendments in this group, and I am particularly pleased to be able to support the amendments in the name of the noble Baronesses, Lady Bertin and Lady Morgan. Both are on important issues, which we will discuss this afternoon.

The amendments in my name seek to ensure that there is a scheme to give victims of rape access to free independent legal advocates—available in every police force area in England and Wales—and that the Secretary of State must develop proposals for a scheme to give these victims access to free, independent legal advice. The idea of independent legal advice and representation for victims in these circumstances is not a new one. In 2005, the then Government announced their attention to introduce legally aided representations for victims in homicide, rape and domestic violence cases—though it was not brought in. In March 2014, the Minister of Justice in the current Government again raised the idea of independent legal representation in a review of the treatment of victims in sexual offences cases, but, again, did not implement the policy. Now it is time to make this a reality.

Independent legal advice and representation can provide an important mechanism and layer of accountability, which results in improved police and CPS policies and procedures. Independent legal advice has already been successfully piloted in Northumbria, and exists in many other jurisdictions, including most European countries, Australia, California and Ireland. Evidence clearly indicates that this legal advice and representation can operate well, alongside the rights of defendants to a fair trial. This proposal does not propose changes to the role of victims and survivors in the criminal justice process, or the rights of audience that currently exist—nor does it change the adversarial system that we have in the UK.

In 2017, the sexual violence complainants advocate scheme was piloted in Northumbria by the then PCC, Dame Vera Baird, to engage local solicitors to provide legal advice and support to local adult rape complainants. The support primarily related to complainants’ Article 8 rights to privacy, advising on digital download requests and demands for material in the hands of third parties—such as school reports, medical records and therapy notes.

The pilot scheme took 83 referrals from September 2018 until December 2019, and was evaluated. Case file analysis showed poor practice around victims’ privacy rights—some police officers believed that there was no need to seek consent from the victims. The SCVAs challenged data requests in fewer than 47% of the cases. The evaluation showed that the scheme was overwhelmingly positive. It increased complainants’ confidence in, and understanding of, the justice system—which is likely to reduce attrition. There was consensus that the project changed organisational cultures—significantly decreasing police and CPS requests for indiscriminate evidence. Police and the CPS felt the investigations were more efficient, relevant and proportionate. A judge commended the pilot as encouraging earlier consideration of disclosures and issues—making cases more efficient and proportionate. All the pilot’s participants agreed with the principle of legal support being made available for sexual offence complainants.

The CPS’s victim’s right to review, which allows a challenge to a decision not to prosecute has been broadened by the High Court to offer an opportunity for a victim to make representations. A victim who wants to use this new voice will need publicly funded, independent, legal representation, so that there can be an equality of arms with the reviewing lawyer from the CPS.

In Amendment 115, tabled by the noble Baroness, Lady Bertin, the

“court’s permission must be obtained for access to, service or disclosure of” the victim’s counselling record—which is why it is linked, in a way, to the amendments I have previously spoken to.

“The court must direct that access should not be granted, or evidence should not be served or disclosed, if the court finds that this would disclose a protected confidence”.

In the Government’s own end-to-end rape review, and in debates around the digital extraction clauses in the Police, Crime, Sentencing and Courts Act, it has been understood that it has become almost routine for victims of rape to be subjected to credibility trawls. This is when victims are asked, sometimes without proper regard to the law, to relinquish their private and personal information for scrutiny by the police and the prosecution.

I am sure the noble Baroness will tell us about the issues this raises in more detail, but in summary: victims and survivors who have reported sexual violence to the criminal justice system are often put in an impossible position, forcing them to choose between seeking justice and accessing therapeutic support. Neither existing legislation nor guidance in this area has effectively addressed the problem of widespread inappropriate requests for this material. The law must change to introduce new higher thresholds for disclosure that is unique to counselling and therapy records to be applied through judicial scrutiny.

Sexual violence and abuse are deeply traumatic. They can cause mental health problems and affect personal relationships and the ability to work. Counselling and therapy provide a means of working through trauma to help survivors to gain control of their lives, so the idea that survivors are being forced to choose between prosecuting their attacker and taking therapy is completely abhorrent.

It also raises the issue of coerced consent, which the Government’s new Clause 22 in the Bill addresses. Until recently, the disclosure of therapy records was reliant on consent from the survivor. As the Information Commissioner has outlined, the Data Protection Act requires that, for true consent, a person must be free to decline without suffering detriment. I am sure other Members of the Committee will have even more details to disclose about that.

I return to Amendment 106, in the name of the noble Baroness, Lady Morgan. I thank my honourable friend Stella Creasy MP—and I am pleased to see my honourable friend here today—for her thorough briefing on this difficult matter. It concerns the right to delete malicious complaints. I know the noble Baroness, Lady Morgan, and, I suspect, the noble Lord, Lord Russell, will have something to say about this matter.

If someone makes a malicious complaint about someone to the police, perhaps as part of a campaign of stalking and harassment, the police can act to remove that from the record. However, if the malicious reporting is to other organisations—social services or perhaps an employer—there is not the same safeguard, with potentially lasting consequences for victims and sometimes for their children and family. There is a powerful case for trying to rid people of the long-term effects of false allegations made maliciously to either a public or a private body. I can see that tackling this mischief may be a complicated area of law, but it is clearly wrong that someone’s reputation can continue to be blighted and the harassment that was already taking place can continue.

I hope the Minister will be able to provide us with some satisfaction. Again, I know that other noble Lords, and one noble Baroness in particular, will have more to say about this, because the briefing that we have all had is very thorough.

I turn to Amendments 101, 102, 103 and 103A. Amendments 101 and 102 seek to mirror the wording of the clauses dealing with victim information requests with that of the clauses dealing with digital data requests in the Police, Crime, Sentencing and Courts Act 2022. This would therefore provide consistency and parity between the frameworks for digital data requests and victim information requests, and grant victims who are subject to these requests the same digital safeguards.

Amendments 103 and 103A, to which my noble friend Lord Ponsonby has added his name, would make the Children’s Commissioner a statutory consultee for the codes of practice for victim information requests, to ensure that a child’s distinct needs and experiences are reflected, which is surely a necessary matter. I beg to move.

Photo of Baroness Bertin Baroness Bertin Ceidwadwyr 4:00, 7 Chwefror 2024

My Lords, on behalf of my noble friend Lady Morgan, who is sorry not to be here today, I shall speak to Amendments 101, 102 and 173, and I shall speak to my own Amendment 115. I give praise and thanks to the noble Baroness, Lady Thornton, for outlining a lot of the issues in these amendments.

First, I shall talk about Amendments 101, 102 and 173, which, I might add, have the name of the noble Baroness, Lady Kidron, attached to them too. Amendment 102 and the associated necessary Amendments 101 and 173 seek to ensure that victims of crime—but particularly victims of sexual violence, for that is where the issue most frequently arises—are protected from excessive and unreasonable demands for their personal data. As the noble Baroness, Lady Thornton, has pointed out, that is the reason why attrition rates are as they are.

Third-party material is material about the victim held by third parties. It can include medical, educational and social services records, as well as records of therapy and counselling, which I will come to in more detail later. It has become commonplace for victims to be subjected to scrutiny of their personal lives, and thus their credibility, by way of a trawl through their personal data, and nowhere more so than in rape investigations. This issue has been well examined in both the media and at a policy level. These trawls act as a deterrent to reporting, and can cause a victim who has reported to then withdraw. There are fears about deeply personal information ending up in the hands of the defendant or being aired in court, where friends and family of the victim may hear it. In addition, requesting this information in such a non-discriminatory way can dramatically elongate already considerable investigation times.

I applaud the Government for introducing legislation in the Police, Crime, Sentencing and Courts Act, which set out a regime to be used by police when requesting digital data, such as that held on mobile phones. Within this Bill, the Government have tabled clauses which purport to do the same for third-party material, but these clauses differ considerably from those in the PCSC Act. As it stands, there will be two quite different regimes for the police to apply when considering obtaining digital material and third-party material, which, in practice, they frequently do in tandem. This is potentially confusing for the police, but, more importantly, for the victims of crime.

Amendment 102 is quite simple, in that it seeks to apply exactly the same robust regime to third-party material as the Government, having listened thoroughly to campaigners, already laid down in legislation for digital material. I hope Ministers will see the need to follow suit in respect of third-party material. This amendment is backed by my noble friend Lady Newlove, the Victims’ Commissioner, so I will allow her to speak to it.

I will speak to my Amendment 115. I am very grateful for the support of the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby. Rape and sexual abuse, as we know in this Committee, are deeply traumatic crimes, the impact of which can be wide-ranging and life changing. Sexual violence and abuse are often a root cause of mental health problems, eating disorders and self-harm, and, tragically, suicide. It is common for the impact of sexual violence and abuse to affect family and personal relationships, a victim’s ability to work, and long-term educational attainment. For many victims and survivors, counselling and therapy are a vital means of working through trauma, supporting them to find routes to regain control of their life. It is therefore imperative that those who choose to do so can seek support without fear that their counselling records will be used to humiliate them in court or, more often, to stop their case progressing in the first place.

The reality is that counselling records contain feelings and not facts. Typically, rape survivors will have feelings of shame and self-blame, and often complex feelings towards the perpetrator. Counsellors and therapists will support survivors to work through these painful feelings and make notes of things that will support their recollection for the next session. They are not collecting evidence for criminal investigations.

Routine access to this material by criminal justice agencies has severe consequences for victims’ mental health and well-being. Some try to stay with the process, while receiving no or limited emotional support, while others drop out altogether because of the intrusion into their private lives. According to recent figures, the proportion of adult rape investigations which ended due to victim attrition was 62%. I think we can all agree that that is far too high. Despite widespread recognition of this problem and the good work carried out by the Government to limit the vast amounts of personal data taken from rape victims, this remains a very big problem.

The Home Office’s own research found that, in case file reviews of rape cases, almost one-third contained a police request for counselling and therapy notes. Where a reason was given for the request, 32% were simply related to establishing a perceived victim reliability or credibility, and did not pertain to the facts of the case.

Rape and sexual abuse are treated with exceptionalism in the criminal investigation process. In no other crime does the victim have their counselling and therapeutic records trawled through and scrutinised with a view to finding any content that may disregard their character. I acknowledge 100% the good work that the Government have taken forward and progressed through Operation Soteria. Stronger legal protections are needed to limit far-reaching requests for these notes which very often contain the most sensitive personal data.

Other jurisdictions have demonstrated that it is possible to do this, while allowing for vital fair trial rights to be duly safeguarded. The state of New South Wales in Australia is a good example. It has an adversarial legal system—very similar to ours—but its notes are afforded far greater protection. This is achieved by ensuring that counselling records are disclosed only when they contain material of substantial probative value and by transferring the decision as to whether this meets the test to a judge. In 20 years, no appeals have been overturned on the basis of counselling and therapy notes.

I propose a similar model because it would strengthen and support the important work led by this Government. It would reinforce the transformative effects undertaken by police and prosecutors through Operation Soteria. It would also save precious police and prosecutor time and resources. They would need to access this material only when they were able to ascertain that there was substantial probative value in it, and not waste time simply trawling through irrelevant records.

We should not miss this opportunity. If the situation does not change, tens of thousands of survivors will have their rights undermined, face further intrusion and be deterred from both therapy and from engaging with criminal investigations. I will leave my noble friend Lady Finn to speak to Amendment 106. I whole- heartedly support Amendment 78. I sincerely hope that the Government will take it on board.

Photo of Baroness Finn Baroness Finn Ceidwadwyr

My Lords, I rise to speak to Amendment 106 in the name of and on behalf of the noble Baroness, Lady Morgan of Cotes. She is sorry not to be here today because of family commitments. This amendment was first debated in the other place. It was proposed by the honourable Stella Creasy based on her own experience as a victim of harassment. This experience is not unique to her. I am grateful—as I know she is too—for the support for this amendment of the noble Lord, Lord Russell of Liverpool, as well as the noble Baronesses, Lady Thornton and Lady Brinton.

In short, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record. Malicious reporting to other organisations—whether social services or an employer as part of a campaign of stalking and harassment—does not carry the same safeguard. As a result, data is retained on individuals who have been targeted maliciously, be it through workplace harassment, stalking or something else. Many victims find that, even if the person targeting them has been convicted, their harassment continues because such records remain. Current data protection rules mean that such records cannot always be deleted. The retention of this data has lasting consequences for all individuals involved.

This proposed new clause seeks to enable the deletion of data where a clear threshold is met to show that the report was the result of malice and that retaining it would continue the harassment. As the testimony of victims has shown, it is not necessary to be an MP to be subject to malicious reporting as part of a deliberate campaign of stalking and harassment. Such reporting, designed to have a serious long-term impact on victims and their families, can occur against anyone doing any kind of public work, in the context of domestic abuse or as anonymous, vexatious harassment.

Public bodies can refuse to delete the data on the grounds that they feel it necessary to retain that data for compliance with a separate legal obligation or for performing a task in the public interest. To overturn this, a person has to demonstrate that the public body’s retention of the malicious data is not necessary for either of these purposes, thereby putting the burden of proof on to the data subject and potentially requiring lengthy court action.

For most people, this is not possible or desirable, leaving them with no legal recourse. This amendment would update the UK general data protection regulation and address these inconsistencies, mirroring the concept of exceptional circumstances under which any deletion would take place. The proposed new clause would give all data controllers guidance on how to manage situations where there are competing obligations—for example, in safeguarding or identifying repeated attacks on an individual via third-party reporting. Unlike the current right to object, this would create an absolute right to request deletion and therefore overrule exemptions that currently apply. This would ensure that public bodies such as local authorities are able to comply with these requests for deletion without risking failing to meet their legal duties. At present, these authorities are very clear that due to existing data protection rules they cannot take this step.

For this duty to be robust and not undermine important concerns about retention of records for safeguarding purposes, there needs to be a clear threshold that is met to show that to retain the data would be to continue the harassment. By limiting this explicitly to proven victims of crimes, when the data is linked to that crime, we could ensure it does not become open to abuse—but it should extend to private companies such as employers to ensure that cases such as inappropriate employment references generated as part of discriminatory processes are not retained.

Could Ministers give serious consideration to updating the law in this regard? This Government have a strong track record on taking action against harassment, stalking and other harms against women and girls. I would like to understand why the Government do not see the need to update the law to take account of this very real situation. The retention of data in such circumstances is illiberal, oppressive and contrary to the mores of a democratic society. Therefore, I would like my noble friend the Minister not just to respond but to acknowledge that this is a serious issue that needs redress. I very much hope that, after this stage of the Bill, my noble friend the Minister will meet me, my noble friend Lady Morgan and Stella Creasy to discuss it further.

Photo of Baroness Hamwee Baroness Hamwee Democratiaid Rhyddfrydol 4:15, 7 Chwefror 2024

My Lords, I support Amendment 115 and would certainly have put my name to it had there been any space. I was shocked when I discovered this initially, and remain shocked, that victims are advised to postpone counselling and therapy, which goes against everything that I understand about the importance of counselling and therapy. It is another instance of victims being regarded as a sort of unwarranted hindrance to a prosecution. They are bystanders —somehow they are being too awkward, almost by their existence.

I very much support the amendment. However, I wonder whether the arguments do not extend to some extreme offences other than sexual offences—violence, modern slavery and so on. Since we will not be voting at this stage and, on an amendment like this it would be unusual for the Minister to say, “I agree”, and then sit down, if this amendment comes back at a later stage, perhaps thought could be given to extending it. It could be about not just victims of offences—I am not making the distinction between sexual and other offences—but about victims of acts which, if proved, would be offences. That may be a bit technical at this point.

I also support Amendment 106. There is something very perverse about the data subject being so hampered in the deletion of her or his own data, as if our personality and humanity were somehow lesser than our data presence.

My name is to the first two amendments in the name of the noble Baroness, Lady Thornton, which are about independent legal advocates and legal advice. We had a long debate on Monday about the skills that are needed by advocates, and Amendment 78 seems to bring those skills together. An advocate needs a range of skills, which should include legal qualification. I do not know whether it needs to be that of a solicitor— I am a solicitor; a legal executive with experience in this could do it equally well—but it is about the combination of the legal skills and other skills that are needed to work in support of victims. I do not suggest that solicitors would not have those.

Photo of Lord Hampton Lord Hampton Crossbench

My Lords, I will speak briefly to my Amendments 103 and 103A, which the noble Baroness, Lady Thornton, has already talked about. I am grateful for the support of the noble Lords, Lord Ponsonby of Shulbrede and Lord Russell of Liverpool.

These amendments would simply add the Children’s Commissioner as a statutory consultee for the codes of practice alongside the Information Commissioner, the Commissioner for Victims and Witnesses and the domestic abuse commissioner. The Minister might well say that this is covered by the phrase

“such other persons as the Secretary of State considers appropriate”.

The noble and learned Lord, Lord Bellamy, pointed out proudly earlier in our debates that children are mentioned in the Bill three times; this is an opportunity to add them two more times, making five in all. By simply adding the Children’s Commissioner to the list of names in the Bill, the Government can, with no effort or watering down, show the importance of children as victims. I look forward to the Minister’s answer.

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I support most of the amendments in this group, which is quite lengthy. One of my key priorities for the Bill is that it delivers greater safeguards to protect the privacy of victims of sexual violence. That is why I am speaking in support of these valuable amendments.

The Government’s rape review was in response to the concern at collapsing charging and prosecution numbers. The review found that most victims did not see a charge or reach court, and one in two victims withdrew from the rape investigations. Privacy concerns led many to withdraw. It had become standard practice for victims who reported to the police to be asked to hand over large quantities of private information. This included digital data from mobile phones, but also what is known as “third-party materials”—personal information about an individual held by organisations.

“Third-party materials” is a seemingly innocuous phrase, but it belies a greater meaning and significance. In reality, it means education records, medical files, social services records or therapy notes. These can all be requested as part of an investigation—an investigation that focuses on the victim, not the accused. I quote one sexual violence survivor:

“I felt anxious, confused and infuriated. I was under far deeper investigation than the rapist (who I have no doubt would have had questionable material had they searched the same). They had refused to take physical evidence—my clothing from the night of the attack—but wanted to investigate my private life. I asked them to justify each request but they could not, so I did not provide it”.

This material often includes documents that the victim may have never seen. These can be introduced at court and used to attack the victim. As one victim told me:

“I had good support for the criminal court. Good preparation. But it made me angry. I was made out to be a liar and it made me feel low. That came as a surprise—it was dreadful. I wasn’t expecting it. Afterwards I was very upset and couldn’t control myself. I started having dreams and flash backs. I was asked about things in my records that I knew nothing about—my past and I didn’t know why”.

In effect, victims are being forced to choose between seeking justice and their right to a private life. That is not a choice; that is an ultimatum. The Government made reassuring noises when they announced an amendment to the Bill over the summer. They promised better protection for rape victims from invasive record requests, but I am concerned that their proposals do not offer the level of protection that we are calling for or that victims need. We need provisions that will offer the protection required. For this reason I am in full support of Amendments 101, 102 and 173, tabled by my noble friend Lady Morgan, which my noble friend Lady Finn eloquently addressed today.

Some noble Lords may recognise these provisions: my predecessor as Victims’ Commissioner, Dame Vera Baird, secured similar amendments to the Police, Crime, Sentencing and Courts Act 2022. These were designed to protect rape victims from overintrusive and excessive police requests for personal mobile data downloads. This amendment not only provides greater support for victims but provides police with a consistent approach to handling requests for digital material and third-party material. Their job is difficult enough as it is, without lawmakers adding to the complexity of their work by placing two very different processes and criteria side by side.

I am also pleased to support Amendments 78 and 79, which call for free legal representation for victims of rape and sexual assault to ensure that their privacy is also protected. Requests for information are often a clear violation of our human right to privacy—our Article 8 rights, to use the legal jargon. My predecessor argued that there should be a right in law for victims to be given free legal representation where these rights are threatened. I wholeheartedly and absolutely agree. Put simply, a lawyer advises and makes representations on the victims’ behalf, cooling police requests for data and improving victim confidence in proceedings. In their rape review, the Government committed to consider a pilot, and I will push hard to get this up and running.

I also support Amendment 115, which if enacted would enable rape victims to seek therapy to help them cope and recover. I am always concerned when I meet victims of rape who tell me they have declined to seek counselling. They are rightly told that notes from counselling sessions might be disclosed to the court. Worse, they might be disclosed to the defendant: intimate, personal details shared with their abuser. That cannot be right. As a result, many victims will wait until the trial is complete before seeking therapy. This can mean years without support, suffering alone and in torment. Some may take their life. It is no surprise that many withdraw so they can access counselling sooner. That is no good for the victim, no good for justice and no good for society.

Currently, notes are routinely requested and can end up being the subject of cross-examination at court. As one survivor said when appearing on “Newsnight”:

“The defence said ‘Are you truthful?’ and when I said yes, she said—‘Well, you’re not exactly truthful with your husband are you? Would you like me to read your therapy notes out about what you’re currently discussing with your therapist?’ I said no. It was like a physical punch because I wasn’t expecting it. That someone would bring that up in a courtroom, about my current sex life. How, how is that relevant? It was violating—like another trauma”.

That is why I want to see records of therapy and counselling received by victims of sexual violence made subject to a form of privilege that would make them exempt from disclosure. It would not be an absolute privilege: judges could waive it if they considered a substantial value to the notes being disclosed. It is a model that balances the defendant’s right to a fair trial with a victim’s right to access counselling. We know it works. As my noble friend mentioned, it has been in place for many years in Australia, where the criminal justice system is comparable to ours. It is about a fairer model, and that is what the Bill needs to deliver: a level playing field for victims.

I also support Amendment 106. Like many others in this Committee, no doubt, I was appalled to hear that malicious individuals are weaponising legislation designed and put in place to protect vulnerable children. As we have already heard, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record.

Malicious reporting to other organisations—including social services or an employer—as part of a campaign of stalking or harassment does not carry the same safeguard, even if the perpetrator of this malicious reporting is subsequently convicted of harassment. As we have heard, under current data protection rules these malicious records cannot be deleted and this has consequences for those falsely maligned. This needs to change and Amendment 106 sets out to enable the deletion of data where a clear threshold is met to show that a report was the result of malice and its retention would continue the harassment. It cannot be a surprise to any of us that victims of this behaviour report a serious long-term impact on them and their families.

Structures around data retention are currently guided by police concerns—with good reason. Following the horrific murders in Soham in 1998, Humberside police were heavily criticised for destroying vital information surrounding previous allegations made against Ian Huntley. I understand that the UK GDPR provides considerable flexibility to public bodies to allow them to retain malicious records. Those who are the subject of malicious allegations can request that the data is deleted; however, public bodies can refuse.

Unfairly, it falls to the victim to demonstrate that the public body’s retention of the malicious data is not necessary. Once again, this puts the burden of proof on the victim. In the worst-case scenario, it could involve the victim having to take lengthy and expensive court action. For most people, this is not possible or even affordable, leaving them trapped in the knowledge that these records remain on file.

Data protection experts argue that it is this very flexibility and the inconsistency in addressing vexatious complaints that causes the problem. By updating the UK General Data Protection Regulation, we can address these inconsistencies, mirroring the concept of “exceptional circumstances” under which any deletion would take place. This amendment offers data controllers guidance on how to manage situations where there are competing obligations, for example safeguarding or in identifying repeated attacks on an individual via third-party reporting. Importantly, it creates an absolute right to request deletion and therefore overrules exemptions which currently apply. This allows public bodies to comply with these requests for deletion without risking failing to meet their legal duties.

I know that some will counter this by saying there is a danger that this right to request deletion could become a chink in the armour of our child safeguarding arrangements. None of us wants to see another Soham, but clearly a high threshold needs to be met before records can be lawfully destroyed. I believe that this amendment, as drafted, does this. By limiting this explicitly to proven victims of crimes, where the data is linked to that crime, I believe we can ensure it does not become open to abuse.

Data regulations put in place to safeguard our children must not be allowed to become a weapon in the hands of abusive partners, stalkers or those who seek to harass people in public life. The time has come for us to act.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees 4:30, 7 Chwefror 2024

My Lords, I support effectively all the amendments in this group, but your Lordships will be relieved to hear that I am not going to speak to all of them. I will speak briefly to Amendments 101 and 102, introduced very ably by the noble Baroness, Lady Bertin. The essential point behind these amendments is to try to align this Bill with the clauses in the Police, Crime, Sentencing and Courts Act that lay down the rules for digital disclosure.

I thought it might be helpful to try to find out what was happening with these new rules and whether they were actually working, so the Victims’ Commissioner’s office put in a request to try and find out. In true and typical form, the Government have not done any evaluation of before and after the Act came into effect specifically in this area.

However, a part of the Project Soteria programme is enacting this new code and some academics are looking at it, so we asked them for their feedback on whether the new code was working in terms of access to private data. They said they had

“seen a move towards better proportionality which they attribute to the Act. They have also seen less threats that investigations will end if the victim does not want to hand over their phone. There is also greater consideration given to alternative means of obtaining digital evidence such as screen shots”,

rather than taking everything off a phone. In conclusion —and this gives kudos to the Government—they said that

“the intentions of parliamentarians to change culture via the legislation do seem to be bearing fruit”,

which is very good news. So, since the evidence shows that it is working, it is not difficult to suggest that what was enacted through that Act should be mirrored exactly in this.

I move to Amendment 106, so ably spoken to by the noble Baroness, Lady Finn. This is personal for me. I have known Stella Creasy since before she acquired a family, during the troubles and strife of the years that went by before she was blessed with two children. To have an individual who has never met you decide to use an anonymous profile to make complaints about you on the basis that he does not like some of her views, specifically on misogyny and the behaviour of some men, and say that on that basis you are an unfit mother, is simply staggering. It is also staggering that the police decided to take this seriously; they finally admitted that that was wrong and, in doing so, said that the officer had been spoken to and that it was a time for reflection and some learning. My own view is that he should have been given a complete and utter bollocking and should probably have been asked to leave the service, or at least put on probation. That is wholly unacceptable.

So it is wrong that this can happen in the first place. When it happens, if the police decide to take the complaint seriously, having not investigated it, and pass it on to social services, social services are in a sense obliged to put on your record that an investigation is taking place on the basis of the complaint, regardless of whether it has any merit. Despite the fact that Stella’s persecutor was found to be malicious and sentenced, it remains on the record. Waltham Forest says that it can and will do nothing about getting rid of it. Perversely, it says that it will keep it on the record because she is a safeguarding risk to her children, as people in future might try to cause her harm through them. I fail to understand that logic. I do not know what the barriers to entry are to gain employment in Waltham Forest, but I suggest they might be elevated somewhat if that is the degree of logic applied in a situation such as this.

So I implore the Government to look at this seriously. As the noble Baroness, Lady Finn, said, they should sit down and talk with interested parties to understand how this happened and try to work out how to prevent it in future, or how to develop very clear guidance to enable authorities to which complaints might be made to go through a decision tree, to analyse the veracity and probity of such allegations, thinking very carefully about the implications of actions they might take without having fully thought them through.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee), Chair, Arbitration Bill [HL] Special Public Bill Committee, Chair, Arbitration Bill [HL] Special Public Bill Committee

My Lords, I will make three brief observations. First, I warmly commend Amendment 115. The law needs to balance very carefully the rights of the defendant and those of the victim. This is an admirable compromise, restricted to professional people, and I hope that it is a good example of the way that Parliament can move the law along to accord with present times.

Secondly, in relation to Amendment 102, consistency is critical. One must remember that the police will have to operate this, and it will be hard work for them as the law is made more and more complicated. Having slight differences between systems makes their life impossible. We need only to look at experience with search warrants and the terrible mess that was made of those to realise why it is essential to have consistency.

The third point relates to Amendment 78. There has been a lot of controversy as to whether victims of rape should have an advocate in court to represent them. As I understand the amendment, it goes nowhere near that; it is merely for advice. It seems to me that an awful lot of the difficulties that occur in rape cases could be solved by the victim having someone who is independent of the prosecution to talk to, because the prosecution cannot go to the extent of the help the victim needs. I am sure that, in the end, this would increase significantly confidence in the criminal justice system. The problem is cost; maybe the Government, with appropriate legislation, should try it in a series of pilots to see how it is best run, rather than rolling out nationwide.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I will make a very brief point, following on from that made by my noble and learned friend Lord Thomas of Cwmgiedd.

There is a group of victims who are particularly vulnerable: those with impairments in mental capacity, who may have difficulty in expressing and explaining what has happened to them and are vulnerable to misinterpretation of anything they say—they are in particular need of advocates who understand their needs.

Many years ago, I was asked by Gwent Police to assist them in a prosecution in relation to people with profound mental incapacity who had been abused and raped. It was very difficult to pull the evidence together, and it was a very steep learning curve to see how difficult it is to let the veracity of what they were trying to tell one be heard and come through. I hope the Government will recognise that there is a group in the population who are particularly vulnerable to exploitation and to sexual abuse by the very nature of having learning difficulties and impairments, and of course that also includes young people with autism—we know how vulnerable they are to influence, and to coercion into a situation that they believe.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, in this group, I will speak only to Amendments 78 and 79, in the names of the noble Baronesses, Lady Thornton and Lady Hamwee. They call for free independent legal advocates and free independent legal advice for victims of rape, and I support the principle behind them. I take the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that they do not necessarily talk about advocacy in court, although Amendment 78 does talk about free independent legal advocates.

The noble Baroness, Lady Thornton, said that the amendments will not affect our adversarial system; nor will they affect it adversely. However, I hope that they will, if adopted, have an effect by ensuring that the interests and voices of victims are considered and heard throughout the criminal justice system, and—certainly for the purposes of these amendments—more comprehensively in rape cases, and that will be wholly beneficial.

These amendments lie at the heart of what this Bill is all about, which is to bring about a transformation in the way we look after the victims of crime. We have moved, but far too slowly. When I practised in the criminal courts a long time ago now—and this is not intended to be an exercise in reminiscence—as both prosecutor and defender, we were almost encouraged to take pride in the structure of criminal cases as a contest between the state—the Crown—represented by the prosecution’s lawyers, and the defendant, represented by independent barristers and solicitors, generally paid for by the state. The adversarial system was all. The victim, usually called the complainant—or in financial cases, the loser—was universally treated as no more than a witness, liable to be harshly cross-examined almost without restriction, and deserving of no extra consideration on account of the ordeal suffered as a result of the crime.

My noble friend Lady Hamwee spoke of the treatment of victims as bystanders, and she was right to do so. That was, and has until recently, far too often been the approach. Though we have come a long way since then, it is nowhere near far enough. In no type of crime has the lack of progress been so severe, so obvious and so harmful as in rape. We are all well aware of the depressingly low rates of reporting for rape, the very low conviction rates, and the testament of literally thousands of victims who have been tormented by the trauma of reliving the offences against them in undergoing the criminal trial process.

Then there has been what the noble Baroness, Lady Thornton, accurately described as credibility trawls, which are intrusive and demanding. The noble Baroness, Lady Bertin, also spoke persuasively of such credibility trawls and the attrition rates that result, in part, from them. The noble Baroness, Lady Newlove, described an ultimatum to victims of sexual violence: the choice between justice and the right to a private life. All these injustices—for that is what they are—demonstrate our failure to achieve fair or even halfway acceptable treatment and outcomes for rape victims.

The Bill has as its central purpose the improvement of the way we treat victims of crime. The victims’ code is about guaranteeing rights for those victims, but the rights we spell out in the code, to which we are attempting by the Bill to give some force in statute, cannot be guaranteed if individual victims do not have the right to the advice to understand them, and the right to the voice to demand and enforce them. In no area of crime is this more important than in the case of rape.

Amendments 78 and 79 seek simply to give victims that advice and that voice. Free, independent legal advice and representation for victims are essential means by which the Bill may achieve the culture change we seek. It is for that principal reason that I urge the Government to accept these amendments, or something very much like them. So many have spoken of putting the protection and interests of victims at the heart of the criminal justice system. Perhaps this is a reminder that the adversarial system does not alone produce a system that is fair.

Limiting these provisions to rape victims may mean that these amendments can only be a start, but they are a start in the right place, and they may point the way towards the change we all seek.

Photo of Baroness Brinton Baroness Brinton Democratiaid Rhyddfrydol 4:45, 7 Chwefror 2024

I am very grateful to my noble friend for so admirably speaking to Amendments 78 and 79—I will not cover them again—and to all noble Lords who have spoken. I want to focus my contribution initially on Amendment 106, which I have also signed. I have talked to Stella Creasy both about her own experience and about mine.

I had two incidents with my stalker-harasser. The first was at the beginning of the 2005 election, when, coming out of a Sky studio, I was told that my local newspaper wanted to speak to me about the fact that I was under investigation by Special Branch for electoral fraud—which was the first I had heard of it. It transpired that the person who was then identified as my stalker had reported me to Special Branch for falsifying my nomination papers and had then issued a press release for the weekly deadline of my local newspaper—which rather left me in a difficult position to discuss it.

A few hours later, my agent and I sat with two officers from Special Branch, who were extremely helpful. They were clearly more senior than the police officer that Stella encountered, because they were very clear that this was malicious. Worse than that, it was an intent to waste police time and money on an investigation that had no cause. They had briefly examined the allegation about why my nomination papers were false and deemed that this was malicious too. As a result, the whole problem went away, other than a severe talking-to to the person who had made the complaint.

Three years on—I think I mentioned this in one of the earlier sessions—one of the letters to the newspapers about me alleged that I was not fulfilling my role as a foster parent correctly by being a candidate. They had also reported me to social services. At that point, it became extremely helpful for the social worker, whom we knew quite well, to be able to ring Special Branch and say, “There is a malicious campaign going on,” and the whole thing just stopped. Is that not what should happen in every single case where it is clearly malicious?

I echo the comments of the noble Lord, Lord Russell, about Waltham Forest. It seems to me that they have lost sight of the actual case here. While it is important that both Stella Creasy and her children are appropriately protected, to do so following a malicious complaint in the terms of that complaint seems to me to be completely and utterly wrong.

From these Benches, we support all the other amendments that have been laid, and I thank the noble Baroness, Lady Bertin, for introducing amendments on third-party materials and therapy and counselling data. I also thank the noble Baroness, Lady Thornton, for her Amendments 78 and 79. As my noble friend Lord Marks outlined, this is absolutely at the heart of giving victims justice during a process and after a process. They are, perhaps, very detailed amendments— I am very aware of the point made by the noble Lord, Lord Thomas of Cwmgiedd, about the police needing a balance, but there is a way through that. At the moment, the balance is entirely against the rights of the victim, and I hope that the Minister will be able to respond in a positive way.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, with this group of amendments we arrive at a particularly sensitive and emotive set of issues, as noble Lords have so movingly described. I shall do my best to provide responses to each of the amendments in as constructive and informative a way as I can.

I start by addressing Amendment 101, in the name of my noble friend Lady Morgan and spoken to by my noble friend Lady Bertin. The amendment seeks to revise the Government’s new Clauses 44A to 44F, which place a duty on authorised persons, including the police, to request victim information only when it is necessary and proportionate in pursuit of a reasonable line of enquiry. It would instead require agreement before the police could request victim information.

To pick up a point raised by the noble Lord, Lord Russell of Liverpool, when we were developing this legislation we wanted to consider very carefully the desirability of aligning the provisions around requests for victim information and the extraction of information from digital devices. Where possible, we have ensured consistency between those provisions.

The new victim information clauses in this Bill do not grant new powers to authorised persons; instead, they place safeguards around requests for third-party material. This is unlike the powers governing the extraction of material from devices in the Police, Crime, Sentencing and Courts Act, which give new statutory powers to authorised persons to request a device and extract information from it on the basis of agreement.

My noble friend’s amendment is based on the principle of victim agreement, but there is a key point we need to remember here. Unlike the information contained on a personal device, the victim does not own the material held by a third party, and therefore cannot agree to its disclosure. That does not mean that the victim’s views are immaterial, and I will come on to that, but the decision to release this information instead lies with the third party. The third party, of course, must be able to fulfil their own obligations under the Data Protection Act 2018, which governs the processing of personal data by competent authorities.

When considering digital information, it is likely that information held on a device could be accessible via other sources: that is, messages between a victim and suspect could be accessible from the suspect’s device. That is unlikely to be the case for third-party material. Therefore, it would not be appropriate to mandate that a victim agree to a request before the third party can disclose the material, because that may prevent the police accessing vital information relevant to the case.

Furthermore, a suspect’s right to a fair trial is already enshrined in law as part of the Human Rights Act 1998, which new measures must not contravene. This amendment could prevent authorised persons accessing information they need to support a reasonable line of inquiry, whether it points towards or away from a suspect. Investigators should always work to balance the public interest in obtaining the material against the consequential impact on the victim’s privacy.

Of course we recognise that it is best practice for investigators to work with and consult victims, so that their views and objections can be sought and recorded. That is why we have supported police in doing so in the draft statutory code of practice that we have published alongside the Bill.

Amendment 106 seeks to revise current data protection legislation, so that victims of malicious complaints involving third parties can prevent the processing, and subsequently request the deletion, of personal data gathered during a safeguarding investigation where the complaint was not upheld.

It is of course right that people are able to flag genuinely held concerns about children whom they believe to be vulnerable. It is also right that social services fulfil their duty to treat each safeguarding case seriously and to make inquiries if they believe a child has suffered or is likely to suffer harm. However, equally, malicious reporting and false claims made to children’s social care are completely unacceptable. They not only cause harm and distress to those subject to the false claims but divert crucial time and resources from front-line services and their ability to undertake investigations into cases where there are genuine safe- guarding concerns.

Current data protection legislation sets out that data controllers must respond to any request from a data subject, including requests for erasure, and then must consider the full circumstances of a request—including the context in which the data was provided—before refusing. Where a data subject is dissatisfied with the response to their request, the current rights of appeal allow a data subject to contest a refusal and, ultimately, raise a complaint with the Information Commissioner’s Office.

I assure my noble friend that, as part of its decision-making process, the ICO will take into consideration circumstances where a malicious claim has been made that may or may not amount to criminal conduct. Where a complaint to the ICO is upheld, the ICO can tell the organisation to assist with resolving the complaint, such as providing information or correcting any inaccuracies. The ICO can make recommendations to the organisation about how it can improve its information rights practices, and can take regulatory action in the most serious cases.

I hope that the process I have set out reassures my noble friend, and the Committee, that the current data protection legislation provides adequate protection. Therefore, in our view, additional provision is not needed.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Culture, Media and Sport)

Can the noble Earl clarify that he is saying that it is up to the victim to take the action?

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

The law is there to enable them to do that. However, where they have an advocate, that person can act on their behalf. I recognise what the noble Baroness is implying in that question. All this is an extremely stressful and traumatic process for the individual involved.

Photo of Baroness Brinton Baroness Brinton Democratiaid Rhyddfrydol

May I pick up on the Minister’s response to the noble Baroness, Lady Thornton? The whole problem in this group is about the onus that is continually placed on the victim. It would be really helpful for the victim and those supporting them if there were an ability to short-cut some of that access. It would be enormously helpful if the Minister could go back and perhaps seek advice from the ICO about whether there are exceptional circumstances like that, because it is such a burden.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords 5:00, 7 Chwefror 2024

I will be very happy to do that because I fully recognise the seriousness of the issue, and in particular the appalling events that Stella Creasy had to endure.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

The noble Earl has laid out, in his usual exemplary way, the way that the system is meant to work and the way it is designed. I suggest that the acid test would be to go to the officials concerned in Waltham Forest and ask them to describe, without leading the witness, exactly how they see what the noble Earl has just described—how they understand it—and how they therefore see what they can and should do. I suspect the results would be some distance away from what the noble Earl has just described, and therein lies the problem. It is fine to have a system, a process and a code that are meant to work, but if they are not working, which they clearly were not in this case, to put the onus on the individual victim to try to rectify that does not seem like justice, and neither does it seem sensible or proportionate.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I have heard the strength of feeling on this, and I will be more than happy to take the issues raised back to my colleagues and officials in the department. I will be happy to write to noble Lords about this, and I would also be happy to arrange for my noble friend and interested Peers to meet me, or my noble and learned friend Lord Bellamy, to discuss the issues that have arisen.

I turn to Amendment 103, tabled by the noble Lord, Lord Hampton. We recognise the importance of ensuring that the distinct needs and experiences of children are reflected in the code of practice that the noble Lord mentions, and that is why we have included specific guidance in the draft code for handling victim information requests for children. I agree with the noble Lord that it is essential to make sure that the final code reflects best practice in this area, and that is why my noble and learned friend Lord Bellamy has instructed officials to review the list of statutory consultees for this code of practice.

I turn next to the amendments tabled by the noble Baroness, Lady Thornton, which seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation. I agree that it is extremely important that victims are confident in their rights and are aware of those rights, particularly when preparing for trial and when requests for their personal information are made; I found much that I could agree with much of the contribution from the noble Lord, Lord Marks.

We wanted to ensure that our understanding of this issue is as comprehensive as possible and, to that end, the Government asked the Law Commission to consider the merits of independent legal advice for victims as part of its comprehensive review into the use of evidence in sexual offence prosecutions. The consultation closed in September last year, and we expect the final report to be delivered in the autumn of this year. To avoid making changes at this stage that could pre-empt the outcome of the Law Commission’s review, and to ensure that we are considering all the evidence as a whole, we will consider the Law Commission’s report and respond in due course. There is no reason why the tenor of this debate should not form part of the Government’s deliberations once we have the Law Commission’s report in our hands.

Perhaps I could add something around the therapeutic support issue. Victims of rape should not be told that they cannot access the therapeutic support that they need to heal from the trauma that they have endured. The Crown Prosecution Service pre-trial therapy guidance is absolutely clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. The guidance sets out clearly that it is for the victim to make decisions about therapy with their therapist and that criminal justice practitioners should play no role in the decision-making process.

In the rape review action plan, we recognised that victims of rape frequently experience intrusive requests for personal information. To improve that situation, we have taken a number of actions, including legislating through the Bill to introduce a statutory code for the police to ensure that requests for victim information are made only when necessary, proportionate and relevant to a reasonable line of inquiry. The police must also provide full information to the victim on what information has been requested, why it has been requested and how it will be used. A draft code of practice has been published. When it is finalised, it will be statutory, and police will have a duty to have regard to the code when making requests. I hope that that is helpful.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I am grateful to the noble Earl for giving way. I ask whether the code will, in fact, introduce what the noble Baroness, Lady Newlove, called a privilege against requests made for records of therapeutic interventions. That is one of the problems: therapy is deterred by the fear of a future request for notes to be disclosed. That is a very serious issue.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I recognise the seriousness of the issue. I have no advice in my brief on that, but I will be happy to write to the noble Lord on that point.

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, it is exactly as the noble Lord, Lord Marks, said. He put it so succinctly, more so than I did—I would go on, because I am so passionate about this.

I have admiration for the noble Earl. What worries me in all this legislation is that it is so simple to say, but when it is enacted on a traumatised rape victim, it is not as simple as joining the dots. I am up for having further conversations, but this is for the professionals. While we can stand here and say this, I am still going through the criminal justice system, and believe you me: I could write another book on how it does not do a service to victims—and I am in the position that I am in, as is the noble Baroness, Lady Brinton; it does not follow.

For rape victims, it is really hard-hitting when they are going to a SARC centre to be forensically examined, and they are talking to individual people. While we want to have trust and faith in our police officers, the police are so not like what we will have in statutory guidance. Also, what do we class as reasonable? Everybody within our criminal justice system has a different definition. It should not be for the victim to think, “What is reasonable?”, when they just want to do what is best.

I really want this to work, but I wish we could be cautious and understand that the people we are talking about are traumatised. They may have been raped not once or twice: it could have been in their home. Everything is intrusive, and it is down to the victim to have a voice to go forward. I wish we could get that in the guidance and the legislation, because it is their lives that we are speaking about and it is their lives that we need to put back on a level playing field.

Photo of Baroness Bertin Baroness Bertin Ceidwadwyr

My Lords, I will also come in on this. I have huge respect for the noble Earl, and I have huge respect for the police, but I am afraid I cannot accept the idea that all 43 police forces and all chief constables will look at, understand and know the code of conduct, and that this will somehow be better than a judge saying that something is right or wrong when it comes to releasing therapeutic records. I would certainly like to meet him and others about this, ahead of Report.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.

On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.

My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.

Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.

As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur

I am grateful to the noble Earl for giving way. I have not spoken in this group so far, because I agreed with everything said by the proposers and did not want to take up the Committee’s time, but, in the light of what I have just heard—in general, but also specifically about counselling notes— I feel moved to. A general obligation on necessity and proportionality is not going to cut it, I am afraid, because counselling and therapeutic notes are special. Just as legal advice is special, and subject to special protection in the courtroom, there is no reason why we cannot act to make such notes special too.

I appreciate that the noble Earl is heroically stepping into another’s brief, no doubt at short notice, but I think that it is for the department to reflect on the quality of thinking so far. Waiting for the Law Commission will take too long. There are already too many women who have not come forward to report their rapes because of the well-publicised problem with counselling notes. They are being counselled by public authorities to choose between counselling or taking their criminal case forward—this is totally unacceptable.

My goodness, the irony of relying on general principles in the Human Rights Act is perhaps the richest I have heard in a long time, given some of the positions that senior members of the Government are taking on that Act and the ECHR. I hope the noble Earl will reflect on these answers or urge others responsible to reflect.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords 5:15, 7 Chwefror 2024

My Lords, having tasked the Law Commission, as we have, with preparing a full-scale set of recommendations in this area, it would be unthinkable for us to pre-empt its report. I am afraid I must disagree with the noble Baroness. I realise how emotive and stressful an area this is for anyone who is intimately involved in it day to day, but that is how we have to proceed.

Photo of Baroness Bertin Baroness Bertin Ceidwadwyr

I want to make a technical point about the Law Commission review, which I have full respect for. As I understand it, the commission will not be looking into pre-charge situations, so the amendment would still stand as that subject is not being tackled by the Law Commission. I reiterate that I just do not buy the idea that police officers all around the country are necessarily going to have the right training to enact the responsibilities that we are putting on them. We really will be pursuing this, I am afraid.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I hear what my noble friend has said. I was able to give what I hoped was helpful information in our debate on Monday about police training, but it is by no means an overnight process, as I am the first to acknowledge. Still, work is under way, and it is surely an important ingredient in the mix.

We think that the Law Commission is best placed to conduct a holistic review of the existing system and to make recommendations for improvement where necessary, and the Government are most reluctant to make changes at this stage that could pre-empt the outcome of its review. However, we can all look forward to closely reviewing and responding to its findings and recommendations when they are published later in the year.

Before I turn to Amendment 173, I shall address the point raised by the noble Baroness, Lady Finlay, about victims with limited mental capacity. There are general points in the code about enhanced rights if the victim’s quality of evidence is likely to be affected because of a mental disorder. They may be supported by a registered intermediary if a mental disorder affects their ability to communicate. Some communications under the code might be done with a nominated family spokesperson if the victim’s mental impairment means that they are unable to communicate or lack the capacity to do so.

The Law Commission is looking at the impact of rape myths on people with disabilities or mental health conditions and how the current legislation and practice of the use of intermediaries is working in respect of complainants in sexual offence cases with disabilities and disorders.

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I am grateful for that response to the noble Baroness, Lady Finlay. I did a report on registered intermediaries. Again, I mean no disrespect to the Minister, because this is a very passionate area that we are speaking about, but we have a shortage of registered intermediaries, and they are the ones who train the police to get the best evidence.

I am concerned about people with autism or special needs, and even victims who have nothing apart from their trauma. My concern is that there is a shortage of registered intermediaries, and the reason is that they were not getting paid to do the job. I ask the Minister to write to me to see where we are on that position. While he has given a copy-and-paste response, in a sense, it does not help to fix the problem for people with special needs.

I have met a couple of victims of rape who were disabled. They thought they were raped because they were disabled, but it has never left me that when they went through the court trial they found that those people were on the web and looking at disabled people. It was not because that victim was disabled. So I am concerned. The Minister does not have to answer now, but I ask him to write to me about where we are on registered intermediaries after that report six or seven years ago.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

I would be happy to write to my noble friend.

Amendment 173 seeks to extend Clause 24 to the whole of the UK. At the moment these measures apply to England and Wales, on the basis that policing is a devolved matter. This aligns with the territorial extent of the majority of measures within the Bill. We have also taken the decision to limit the scope to England and Wales as, following engagement with the devolved Governments, it is clear that there is no appetite at present for these provisions to extend further.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Culture, Media and Sport)

I assume the noble Earl is asking me to withdraw my amendment.

I thank all noble Lords who have taken part in this debate. The noble Earl will be able to report with some veracity to his noble friend, who we hope will be back with us next week, that there is a complete degree of unity across the Committee about the need for action on all these amendments.

I thank the noble Earl for the fact that there has been some movement; I think that at least two meetings will flow from this group of amendments. I thank the noble Baroness, Lady Finn, in place of the noble Baroness, Lady Morgan, for her introduction and the suggestion that we should meet to discuss Amendment 106 and take that discussion forward together.

On Amendment 106, we have talked about my honourable friend Stella Creasy, who I have known since she was about 16 or 17 years old, but the briefing we got told us of many other examples of people who had been harassed. As one anonymous case said:

“Out of the blue Z received a call from their local police sharing details of a complaint made about the treatment of her children. The anonymously submitted complaint made a series of false claims accusing Z of neglect and abuse ranging from failing to feed or clothe their children correctly or take them to the dentist and GP. Social services were able to confirm that Z’s children attended school, the dentist and were registered with their local GP. Despite a lengthy investigation Z is no further in understanding who made this complaint, and their children’s record remains”.

She feels wretched about that fact. Of course, that carries forward to what happens to those children. Every time that mother has to fill in a form or a job application in public services of some sort, the fact that the report exists on the record is material.

Many noble Lords hold positions. I am a non-executive director of the Whittington Hospital and have had to go through the usual CRB checks to hold that position. If this was me, I would have to have declared that. That is what happened to Stella Creasy and all these other women who have been harassed and about whom vexatious complaints have been made. It is not just that this is unfair and a continuation of harassment; it has a material effect on those people and their children. We need to find a remedy for this issue.

I turn to the other amendments. I thank the noble Baroness, Lady Bertin, for her introduction and for the way in which she talked to her amendments. The noble Baroness, Lady Newlove, made her usual powerful and informed contribution. The words of the noble and learned Lord, Lord Thomas, were very wise. The noble Baroness, Lady Finlay, champions some of the most vulnerable people in our society. The noble Lord, Lord Marks, was perfectly correct in saying that the effects of Amendments 78 and 79 in my name would be only beneficial, not just for the victims of rape but for all the authorities and for their conduct in dealing with these victims.

The question is: can we wait another couple of years for the Law Commission to report and for the Government to consider it and take it forward? I was interested in what the noble Baroness, Lady Bertin, had to say. This issue may not fall within the scope of what the Law Commission is considering. We all need to know that, so that the discussions we might have with the Minister can be resolved in a spirit of information. I praise the noble Earl who has had to stand in for dealing with all these issues in his normal informed and courteous manner.

Finally, Amendment 115 on not delaying therapy is vital. As my noble friend Lady Chakrabarti said, the idea that you have to choose between therapy and justice is so abhorrent that we cannot wait another couple of years to be able to sort that out.

I thank the noble Earl. I look forward to the meetings and conversations we will have between now and Report, when I suspect we will return to many of these issues. I withdraw my amendment.

Amendment 78 withdrawn.

Amendments 79 to 81 not moved.