House of Commons

Tuesday 30th October 2012 Commons Chamber

Tuesday 30 October 2012

The House met at half-past Eleven o’clock

Prayers

Tuesday 30th October 2012 Commons Chamber

[Mr Speaker in the Chair]

Business before Questions

City of London (Various Powers) Bill [Lords] (By Order)

Second Reading opposed and deferred until Tuesday 6 November (Standing Order No. 20).

Oral Answers to Questions

Tuesday 30th October 2012 Commons Chamber

The Secretary of State was asked—

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

1. What recent assessment he has made of the situation in Sudan and South Sudan.

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mark Simmonds)]

I welcome the agreements reached in September between Sudan and South Sudan, following months of intensive negotiations on borders, security and economic issues. We are working with the African Union to ensure that these are fully implemented and that remaining differences are settled.

[Paul Goggins]

I warmly welcome the Minister to his new and important responsibilities. Is it not outrageous that, as the Sudanese Government protest at the bombing of an arms factory in Khartoum, they continue to bomb their own people in South Kordofan and Blue Nile, causing untold suffering for hundred of thousands, including the largely forgotten people living in the caves in the Nuba mountains? Will he and the Foreign Secretary continue to put pressure on the international community to ensure that, in turn, it puts pressure on the Sudanese Government to allow safe access so that humanitarian assistance can get into those areas as a matter of urgency?

[Mark Simmonds]

I am grateful to the right hon. Gentleman for his welcoming remarks, and I certainly look forward to doing this job to the best of my ability. He is absolutely right to raise the recent incident, but it is a matter for the Government of Sudan. He will be aware that they have written to the President of the UN Security Council, who will be investigating the matter, and we, along with all Governments, await the results of those investigations. His points about the ongoing conflict in South Kordofan and Blue Nile are right, and I can assure him that the UK Government, along with regional players, including the African Union and the Arab League, are doing all we can to ensure that humanitarian aid and access are given to those particularly challenging areas as soon and as fast as possible.

[Richard Ottaway (Croydon South) (Con)]

Although the new agreement signed between north and south is welcome, is the Minister aware that the arms factory just alluded to is supplying arms into Sinai and possibly Gaza, and is Iranian-owned? Does he agree that he should be telling the Sudanese Government that such activity simply has to stop?

[Mark Simmonds]

I am grateful to my hon. Friend for his comments. As he will be aware and as I stated earlier, the Sudanese Government made a request to the UN, and an investigation is now ongoing. We will be watching the thoroughness of that investigation extremely carefully, and will decide what to do once we have received the results.

[Ms Margaret Ritchie (South Down) (SDLP)]

Does the Minister agree that the Government of North Sudan must allow the safe, unhindered access of international aid to areas that so far have been inaccessible in order to ensure full accessibility for everybody and an end to bloodshed?

[Mark Simmonds]

I am grateful to the hon. Lady for raising this issue. To reduce and negate the suffering in Blue Nile and South Kordofan, it is essential that we enable humanitarian access to get to these areas as fast as possible, but it is extremely challenging. She might be aware that an agreement was reached in August between the tripartite—the UN, the AU and the Arab League—and signed by the North Sudanese Government and the Sudan People’s Liberation Movement-North to allow humanitarian access. We need to ensure that that agreement is implemented as fast as possible to alleviate the suffering.

[Geoffrey Clifton-Brown (The Cotswolds) (Con)]

I congratulate my hon. Friend on his new position. The issue of the arms factory that my hon. Friend the Member for Croydon South (Richard Ottaway), the Chairman of the Foreign Affairs Committee, mentioned was accompanied by visits by Iranian warships to Khartoum. Will the Minister do all he can to reduce tensions in the region? This is a very unwanted development.

[Mark Simmonds]

I agree with my hon. Friend. We have consistently and strongly encouraged the Government of Sudan to set themselves on a path to becoming a stable, prosperous nation playing a positive role in the region. In that regard, we do not consider such political and military engagement with Iran to be helpful.

[James Duddridge (Rochford and Southend East) (Con)]

2. What recent assessment he has made of the political situation in Swaziland.

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mark Simmonds)]

The Government remain deeply concerned about the continuing decline in good governance and human rights in Swaziland, and the lack of progress towards democracy. The UK has called on the Government of Swaziland to abide by the 2005 constitution, which guarantees the rights of all Swazi citizens to freedom of assembly and freedom of expression.

[James Duddridge]

I thank the Minister for that reply, but what more can he do for people such as Mario Masuku of PUDEMO—the People’s United Democratic Movement, the leading opposition party in Swaziland—with whom I worked in Barclays Bank in Swaziland? What more can the Minister do to encourage King Mswati to be a little more sympathetic and tolerant of the existence of political parties?

[Mark Simmonds]

I know that my hon. Friend has a particular interest and knowledge of Swaziland, and I can confirm to him that the UK continues to urge the Government there to ensure that all political parties are able to operate freely and participate in the elections scheduled for September 2013. We believe that the people of Swaziland want political parties and we call on the Government there to respect their wishes. I can also confirm that our high commissioner will be visiting Swaziland in November to participate in discussions and will use the opportunity to underline the UK’s concerns about the current political and economic environment and press for reform.

[Karen Lumley (Redditch) (Con)]

3. What assessment his Department has made of the fairness of the trial of the former President of the Maldives, Mohamed Nasheed; and what representations he has made to ensure that the trial is fair.

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)]

We have sought and received assurances from President Waheed of the Maldives that any trial of former President Nasheed will be fair and free from political influence. No trial date has been set. The next court hearing is on 4 November and we expect international observers to be present.

[Karen Lumley]

What effect does my hon. Friend think the trial of Mohamed Nasheed will have on a sustainable political outcome in the Maldives?

[Alistair Burt]

The trial process is, of course, a matter for the Maldives, but there is international concern that if it results in the former President being prevented from leading his party into the elections next year, it will be seen as though the process was designed for exactly that object. We urge political stability under all circumstances in the Maldives, and that will no doubt be enhanced if the former President is allowed to lead his party and take part in those elections.

[Mr Frank Roy (Motherwell and Wishaw) (Lab)]

4. What recent reports he has received on progress in uniting Syrian opposition forces around a credible transition plan for a post-Assad Syria.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

6. What recent reports he has received on progress in uniting Syrian opposition forces around a credible transition plan for a post-Assad Syria.

[Mrs Mary Glindon (North Tyneside) (Lab)]

11. What recent reports he has received on progress in uniting Syrian opposition forces around a credible transition plan for a post-Assad Syria.

[The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)]

We judge that co-operation between opposition groups is increasing, but there is much more to do. They need to unite and to appeal to all Syrians, regardless of religion and ethnicity. Our special representative is in constant contact with opposition groups and there will be a further meeting with them in Doha next month—next week, in fact—to work on that more united position.

[Mr Frank Roy]

In light of the failure of the recent ceasefire, what recent discussions has the Foreign Secretary had with the United Nations about reinstating a monitoring mission in Syria?

[Mr Hague]

That is of course a difficult thing to do because of the situation in Syria. The Arab League had a monitoring mission; then there was a United Nations monitoring mission. All of them found it impossible to do their job because the regime did not keep its word and fighting continued, so that is not on the table at the moment in Mr Brahimi’s proposals. I will discuss with Mr Brahimi this afternoon what his next proposals will be. We continue to work for a diplomatic solution and to advocate the creation of a transitional Government in Syria, but so far our efforts to do so have been blocked or not carried forward by Russia and China.

[Thomas Docherty]

Given that we cannot fully track where UK donations are going, may I press the Foreign Secretary to explain how we are ensuring that they are not ending up in the hands of jihadist forces?

[Mr Hague]

The first thing to say is that our assistance is non-lethal. We are providing to the opposition equipment such as generators, communications equipment, water purification kits and things of that kind. We make every effort to track such equipment and ensure that we know where it is going, but as I have explained to the House before, the risks that we take in this area are outweighed by the risk of not giving any assistance to such groups and to civilian populations in Syria, who are in a dire situation. The balance of risk suggests that we should give assistance to them.

[Mrs Glindon]

Can the Secretary of State say what progress he is making with the Governments of Russia and China on their position, which is clearly proving a stumbling block to action by the UN Security Council?

[Mr Hague]

We continue to try to make such progress. I and all the EU’s Foreign Ministers met the Russian Foreign Minister two weeks ago for a further discussion about this in Luxembourg. There is no change in the position of Russia as things stand, which is a tragedy for Syrians and the world. In fact, since the last attempt to pass a chapter VII resolution was vetoed by Russia and China, more than 13,000 people are thought to have died. This is a major block on our diplomatic progress. In the absence of that, we are giving non-lethal support to the opposition, we are the second largest bilateral donor of humanitarian aid, we work with other nations to prepare for the day after Assad and we continue to assist the opposition in coming together as a more coherent force.

[Sir Peter Tapsell (Louth and Horncastle) (Con)]

Does my right hon. Friend agree that, as I suggested at the time, it was really a mistake for the west to encourage a civilian rebellion against the dictatorship in Syria? That rebellion has been joined by the Muslim Brotherhood, Hamas, the jihadists and al-Qaeda, among others, while the Alawite regime is being supported by the Christians, the Kurds, the Druze and Russia. As I predicted, this has become a secular civil war and it is already threatening the stability of Lebanon, Jordan and Turkey. Given that the United Nations route has failed, that even Governor Romney has ruled out military intervention, and that the Russians are seriously concerned to prevent the conflict from spreading to the Caucasus, surely the time has come for my right hon. Friend to make further bilateral suggestions to Russia to find a joint approach that will end the bloodshed.

[Mr Hague]

I can assure my right hon. Friend that there has been no shortage of bilateral and multilateral suggestions being made by us to Russia. I will pick him up on something that he said at the beginning of his question, when he implied that we in the west had encouraged a rebellion in Syria. That rebellion did not require any encouragement from western nations. That was the people of Syria rising up against an oppressive regime, and they did so without any incitement from western leaders of any kind. There is the sectarian tension and conflict to which my right hon. Friend refers, as well as a genuine desire to get rid of an oppressive and tyrannical regime.

[Sir Menzies Campbell (North East Fife) (LD)]

But is it not the sad truth that Syria is bleeding to death because of a military stalemate in which the insurgency is incapable of bringing down the Assad regime and the Assad regime is incapable of putting down the insurgency? May I suggest that the only way to break down that military stalemate is to break down the political stalemate at the United Nations? Do not recent events in Lebanon serve to underline the fact that the risk to regional stability is now very considerable? Is it not in the interests of Russia and others to seek to bring an end to the political stalemate?

[Mr Hague]

My right hon. and learned Friend is absolutely right. I hope that if any good can come of the events in Lebanon, they will serve as a fresh wake-up call to the world about the dangers of the Syrian conflict. This is not a containable crisis. A regime is waging war against its own people, and the longer it goes on, the more extreme will be the forces that are drawn into it, which is the very thing that Russia says it is worried about. We warned about all those dangers when we called on the United Nations Security Council to act, and those predictions have so far been proven to be true. Of course we will continue to work on this at the United Nations and to support Mr Brahimi, as I have said, while in the meantime doing all that we can to alleviate suffering inside Syria and on its borders.

[Mr Crispin Blunt (Reigate) (Con)]

What assessment has my right hon. Friend made of the political programme coming from the Syrian resistance movement?

[Mr Hague]

There is a variety of political programmes from a variety of opposition groups. I pay tribute to the people I have met, some of whom have come out of Syria to tell us about their experience, for the extraordinary courage and determination that they have shown in the face of overwhelming odds in trying to fight and work for a better society in Syria. However, they do need a more coherent programme for transition, and it is important for them to make every effort to win over the middle ground of Syrian opinion. That includes minorities, Christians and the business community, who need to know that there can be a change to something better than the Assad regime.

[Mr Douglas Alexander (Paisley and Renfrewshire South) (Lab)]

I have listened with care to the answer that the Foreign Secretary has just offered, but it is worth bearing in mind that it is now more than 18 months since the beginning of the popular uprising and that neither unity nor a credible opposition plan has yet emerged from the Syrian opposition movement. The right hon. Gentleman referred in a previous answer to the Doha meeting as the next significant step, but would he accept that that meeting has already been postponed? Will he set out what practical steps can be taken with partners in the regions to try to effect the unity that has so far proved elusive?

[Mr Hague]

Yes, it is true that that meeting has been postponed, and there have been many meetings with Syrian opposition groups. It is, of course, not possible or desirable for people in other countries, including our country, to try to impose on them any particular programme. The whole point is that Syria’s future should be for Syrians to decide, so they have to take the decisive steps to come together with a coherent platform. Our special representative works with them on a daily, usually an hourly, basis, and our pressure on them for the forthcoming meeting is co-ordinated with the United States, France, Turkey and leading Arab nations. It is very clear that the Syrians know that the world is looking to them to come together in a more effective way.

[Mr Alexander]

Does the Foreign Secretary accept that there is a relationship between whether such a transition plan emerges and the capacity of the international community to break the diplomatic logjam that we have heard about already in the course of our questions? If there are to be further discussions with the Russians and the Chinese in particular, which I sincerely hope there will be, the emergence of a credible transition plan is going to be one of the bases on which the optics of that conversation can be changed from the last 18-month stalemate.

[Mr Hague]

Yes, that is quite right. I would not want the right hon. Gentleman or the House to think that it would necessarily bring about an end to that diplomatic stalemate, but it is one of the necessary ingredients, and it is one of the arguments of Russian leaders that the opposition is divided and that there is no single interlocutor with which to deal. It would indeed be very advantageous to remove that argument in trying to bring peace and stability to Syria. I think we are all very conscious of that, and will be very conscious of it over the coming months, and that, indeed, this has gone on for 19 months in total and more than 30,000 people have died. We will continue our work for a peaceful, sustainable transition in Syria.

[Andrew Bridgen (North West Leicestershire) (Con)]

Given that over 30,000 people have died in this struggle, does my right hon. Friend share my view that the most important thing is for the opposition groups to come together and offer the Syrian people what they really want—the hope of a better future?

[Mr Hague]

Yes, absolutely. Again, I want to pay tribute to many people who risk their lives to support the opposition and to many who have worked in the Syrian National Council, for instance, to set out a clear intention to create a better future for their country, but it is now important that they come together in a more effective way. I have often explained to them that in the history of this country when we have faced an existential threat, all parties have come together on a common programme. Syria now faces an existential threat to any peaceful or stable future; it has to do the same.

[Mr Peter Hain (Neath) (Lab)]

If, in the right hon. Gentleman’s answers to questions, I have detected a change of tone from the previous insistence on regime change above all else, may I welcome that? Will he explain his own view that what we are faced with is a civil war—a civil war not just at the present time, with around a third of the people backing the barbarity of Assad out of fear of something worse from Sunni domination, but the continuation of a civil war following a simple collapse of the regime? What we therefore need is his insistence on a transitional Government.

[Mr Hague]

Since I agree with the right hon. Gentleman about the need for a transitional Government, I do not want to disappoint him too much in respect of the start of his question. It is not that the western world has set out on regime change in Syria, but it is certainly our analysis, and it has been for a long time, that peace cannot be brought to Syria without the departure of President Assad. There is no viable peace; there is no peace that the people of Syria would accept without that. I am not changing tone or policy on that. The right hon. Gentleman is quite right about the need for a transitional Government. We agreed in Geneva at the end of June—with Russia, China and all other leading nations—about the need for that. What we do not have is the active participation of Russia in bringing about such a transitional Government.

[Rehman Chishti (Gillingham and Rainham) (Con)]

Does the Secretary of State have any reports about the growing anti-west resentment and feeling by the Syrian people in the opposition as a result of the west not doing enough to protect them?

[Mr Hague]

As my hon. Friend will know, there is a great variety of views. I find that there is enormous gratitude for what we have done and what we try to do diplomatically, and for the huge amount of humanitarian assistance that is provided, but yes, there are also members of Syrian opposition groups who would like us to do something different, and who would like a military intervention from outside. As I have explained to the House before, we do not rule out any options. We do not know how the situation will develop. However, for reasons that I have given the House many times before, it is very different from the situation in Libya last year.

[Mr Russell Brown (Dumfries and Galloway) (Lab)]

5. What his policy is on proposals to give Palestine enhanced status at the UN.

[The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)]

No application for enhanced status is currently before the United Nations. The whole House supports the right of the Palestinian people to have a state of their own: that state cannot come soon enough for them, and for the peace and stability of the region. We support a sovereign Palestinian state on 1967 borders with agreed land swaps, Jerusalem as the shared capital and a just settlement for refugees, and we will judge any proposal at the UN on whether it advances that goal.

[Mr Brown]

Following the announcement from President Abbas that the Palestinian authorities will be seeking observer status at the United Nations, can the Foreign Secretary give the House any kind of assurance that the Government intend to support such a bid?

[Mr Hague]

: The hon. Gentleman is right: President Abbas has stated that intention. However, no proposal is currently before the UN. In our view, the priority is for the United States—after the election, obviously, and whoever is successful—to lead a major push to restart negotiations and arrive at a two-state solution. The opportunity to do that is slipping away, and may have slipped away completely within another year or two. For the present US Administration it is absolutely crucial, and we have already said that to President Obama and to Governor Romney. Any decision on votes at the UN must be made on the basis of actual proposals.

I think the hon. Gentleman will infer from what I am saying that we believe that actual negotiations would be infinitely preferable to divisive symbolic gestures, and we are advising President Abbas not to go down the path of tabling such a resolution at the moment.

[Mr Speaker]

Order. We need to speed up a bit. We have a lot to get through.

[James Morris (Halesowen and Rowley Regis) (Con)]

We all want to see significant progress towards a two-state solution, but does the Foreign Secretary agree that any attempt by the Palestinians to declare unilateral statehood might provide an obstacle to the opening up of real negotiations, without preconditions, with the Israelis?

[Mr Hague]

We will only arrive at a two-state solution through successful negotiations. It is therefore very important that the Israelis and Palestinians are prepared to enter into those negotiations, and, as I have said, that the United States is ready to put its full weight behind them in 2013, after the presidential election. That is the way forward. I think that if the Israelis and Palestinians or the United States fail to do that, we shall enter into a new and even more dangerous situation.

[Mr William Bain (Glasgow North East) (Lab)]

18. If President Abbas did present proposals to the UN within the next month for Palestine to be accorded observer status, and if the UN General Assembly approved them, would that not constitute an important statement by the international community of the primacy of a two-state solution, and would it not have the potential to break the diplomatic impasse?

[Mr Hague]

That is a hypothetical question. Of course it could be argued that it would be a very important statement. As I have said, I think that Members on both sides of the House believe in the importance of bringing about a Palestinian state, but if that cut across the ability of a re-elected or new US Administration to put its full weight behind this, and if it made Israelis less likely to enter into constructive negotiations in the coming months, it would take us further away from our goal rather than nearer to it.

[Mr Julian Brazier (Canterbury) (Con)]

But what other options are available to the Palestinian people as they see a programme of settlement building increasingly closing the door on the physical possibility of a Palestinian state?

[Mr Hague]

That is an understandable question. As my hon. Friend knows, we have condemned the expansion of settlements. The settlements are what is bringing about the urgency of the issue, because they are making a two-state solution in the coming years less feasible. However, I reiterate that the best hope of achieving a solution is a major push by the United States in the coming months and over the coming year. Everything else is second best to that.

[Ian Lucas (Wrexham) (Lab)]

But what progress has the Foreign Secretary made by failing to adopt a position on this matter?

[Mr Hague]

I do not think we are short of positions on this matter, and I have just explained the Government’s position on it. It is one of the great foreign policy frustrations for this country and for people across the world, but as we know, and as all previous Administrations have known, there is not a magic or overnight solution to it. The solution is negotiations on a two-state solution, and we now have an opportunity to make a major push for that. If that does not happen, we will be in a new and more dangerous situation, and that will require many nations to reconsider their approach.

[Bob Blackman (Harrow East) (Con)]

Can my right hon. Friend confirm that the Government policy is as set out by the Prime Minister in his excellent recent United Jewish Israel Appeal speech, when he made it clear that there is no substitute for face-to-face negotiations without preconditions and that the United Kingdom Government would not support a premature move to statehood at the United Nations?

[Mr Hague]

As I have explained, we believe it is very important to return to those negotiations—and my hon. Friend can be assured that Government policy is always as it is set out by the Prime Minister.

[Mr Ben Bradshaw (Exeter) (Lab)]

7. What legal advice he has received on the banning of all imports from illegal Israeli settlements in the Occupied Palestinian Territories.

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)]

I have neither sought nor received any legal advice on this issue, because the policy of successive UK Governments has been not to ban the import of settlement produce, but to support the policy of voluntary labelling to ensure consumers are fully informed.

[Mr Bradshaw]

Has the Minister seen today’s report from 22 Churches and charities, showing that we in Europe import 15 times more from the Israeli settlements than from the Palestinians? Is he also aware of the growing body of international legal opinion that all trade with the illegal settlements is itself unlawful? Will he therefore now seek that legal advice, so we in this House can be confident that Britain is following its obligations?

[Alistair Burt]

I have seen the report and I note that one of its main recommendations is to commend the United Kingdom on its policy of voluntary labelling and to encourage other European Union countries to do the same. There is active consideration in the EU about doing just that, and we are taking part in that. So far, however, I have not seen anything that would lead us to change our policy in relation to boycotts, but I will, of course, look at all the recommendations in the report.

[Bob Stewart (Beckenham) (Con)]

Will the Minister give the House his opinion of the apparent legal inequality between children who live in settlements in the west bank and Palestinian children, who do not?

[Alistair Burt]

As my hon. Friend and other Members will be aware, there has for some time been concern about the legal rights of Palestinian children in particular. The UK Government part-sponsored a recent independent report looking into these issues. We remain concerned about the inequalities, and I have drawn these issues to the attention of Israeli Ministers when I have had the opportunity to do so.

[Mrs Louise Ellman (Liverpool, Riverside) (Lab/Co-op)]

Does the Minister agree that one-sided boycotts and sanctions will not resolve this complex and tragic issue, and does he applaud the fact that life-saving Israeli pharmaceuticals will now be made more generally available across Europe?

[Alistair Burt]

Yes, I do broadly agree with the hon. Lady. Successive Governments have not followed a boycotts policy because that would put at risk the relationship we wish to retain with Israel. A recent change in EU pharmaceuticals legislation will help the products she mentions to be made available, but as my right hon. Friend the Foreign Secretary has just said, such things are also caught up in the need for an overall solution to the problems between the Palestinian Authority and Israel. All the issues raised will not be settled until that happens. That is why we must urgently address the search for a solution in the way the Foreign Secretary has just outlined. These issues will only be resolved then.

[Mr Philip Hollobone (Kettering) (Con)]

Does my hon. Friend agree that the way to solve the settlement problem is to have direct, final status negotiations between the Palestinians and the Israelis, and that any academic, cultural or trade boycott will simply prove counter-productive and will damage this country’s ability to move the peace process forward?

[Alistair Burt]

Yes, and I hope I conveyed exactly that in my previous remarks.

[Jim Sheridan (Paisley and Renfrewshire North) (Lab)]

8. What assessment he has made of the political consequences in the middle east of the exploration for oil and gas off the coast of Cyprus.

[The Minister for Europe (Mr David Lidington)]

The discovery of oil and gas resources has the potential to bring greater prosperity and energy security to the region. We hope that all countries in the region will work to overcome their differences to develop those resources in a mutually beneficial way.

[Jim Sheridan]

I thank the Minister for that response. He will be aware that Cyprus has moved on from olive oil to crude oil, and there are genuine concerns among all Cypriot people that the illegal occupying forces in the north may wish to assist the exploration of that oil against the best wishes of the Cypriot people. If that were to happen, what options would be open to the UK Government, given that we are a governing power and we do have a significant military presence on the island?

[Mr Lidington]

We have repeatedly stated publicly our acceptance that the Republic of Cyprus has sovereign rights to exploit its mineral reserves within its exclusive economic zone. We think that the prospect of the greater prosperity that would flow from the successful exploitation of hydrocarbon resources in the eastern Mediterranean is one of many reasons why it is in the interests of Cyprus—all communities in Cyprus—of Turkey and of Greece to reach a settlement to the maritime disputes in that region and a final settlement to the Cyprus question, too.

[Mr David Burrowes (Enfield, Southgate) (Con)]

Given the stalling of the political search for a solution to the Cyprus problem, does not this exciting prospect of the exploration of hydrocarbon reserves highlight both that Britain has an important role as a guarantor power in ensuring that these are resources for the whole island of Cyprus, and that reunification of the island is an economic necessity for Cyprus and the greater region?

[Mr Lidington]

It is certainly important that these resources are seen as being developed for the benefit of all communities in Cyprus, not just for one section of the population there. Any settlement that endures in Cyprus has to have the wholehearted consent of both the Greek and Turkish Cypriot communities. That is why, although we want to support the work towards a settlement, it is right that that process towards—we hope—a final settlement has to be Cypriot-led.

[Jane Ellison (Battersea) (Con)]

9. What recent representations he has made on behalf of Shaker Aamer; and if he will make a statement.

[The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)]

I have raised Mr Aamer’s case numerous times with Secretary Clinton and, in June, my right hon. Friend the Defence Secretary and I made representations to Secretary Panetta. Any decision regarding Mr Aamer’s release remains in the hands of the United States Government.

[Jane Ellison]

I thank the Foreign Secretary for that reply and for the work that he and Ministers have undertaken on behalf of Mr Aamer’s family in Battersea. Obviously, the next months offer a window of opportunity, as there will be a change of personnel, even if there is not a change of Administration. Can the Foreign Secretary assure me that he will continue to seek waivers, particularly to the National Defence Authorisation Act, with counterparts on the other side of the Atlantic?

[Mr Hague]

Yes, and I pay tribute to my hon. Friend’s work on this issue. Senior US officials have confirmed that the National Defence Authorisation Act 2012 has the potential to make Mr Aamer’s release more likely than the Act of the previous year, but no releases have yet taken place under that Act and the criteria for the national security waiver remain unclear. We will certainly be pursuing this with the re-elected or incoming US Administration.

[Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)]

10. What steps his Department is taking to ensure the continuing education of girls in Afghanistan following the military draw-down.

[Yvonne Fovargue (Makerfield) (Lab)]

14. What steps his Department is taking to ensure the continuing education of girls in Afghanistan following the military draw-down.

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)]

The United Kingdom can be proud of the role it is playing in ensuring that more than 2 million girls are now in school in Afghanistan. At the Tokyo conference in July, the Afghan Government reconfirmed their commitment to the rights of women and children. My right hon. Friend Baroness Warsi made the point again during her visit to Afghanistan in the past couple of weeks and got a further assurance from the Afghan Government.

[Meg Hillier]

I thank the Minister for his answer. Last week’s International Development Committee report said that the status of women and girls in Afghanistan would be the “litmus test” of whether we have succeeded in improving the lives of ordinary Afghans. What is his assessment of the Afghan High Peace Council’s commitment to include women in Afghanistan’s political process?

[Alistair Burt]

There are already a number of women in the Afghan Parliament; some 31% of Afghan Members of Parliament are women, and there is a clear commitment in the declared aims of the Government, which they reaffirmed to the United Kingdom as part of our enhanced strategic partnership on the rights of women. The truth is of course that the cultural issues are extremely difficult, and we will continue to press them and to work with the elements in Afghanistan who wish to see continuous progress. I do not think any of us can disguise the fact that it is not easy, but there are elements in Afghanistan who clearly want to see progress.

[Yvonne Fovargue]

While mainstreaming women’s rights and status is important, what specific projects have the Foreign and Commonwealth Office, or colleagues in the Department for International Development, funded?

[Alistair Burt]

We fund a variety of projects through our conflict pool to encourage the participation of women in the political process, through elections and education and through supporting particular women’s rights advocacy groups, and to assist in their work in the media. The Foreign and Commonwealth Office and DFID do that work collectively, and we do it multilaterally with other international agencies.

[Dr Julian Lewis (New Forest East) (Con)]

Did the Minister see the important article in The Sunday Times this weekend, which made it clear that after 2014 the Taliban will be targeting all the progressive steps that have been taken, and will he therefore seek to open the Government’s mind a little more to the prospect of trying to preserve those gains by supporting the concept of a strategic base in the area after 2014 for international security assistance forces?

[Alistair Burt]

How the use of forces will be made after 2014 is still to be considered. My hon. Friend has made this plea before. I would say in response to his point about the Taliban that one of the most significant events in recent weeks has been the public response to the Taliban in Pakistan, in support of the young girl Malala and her right to education. Bearing in mind the links between the Taliban in Pakistan and in Afghanistan, that assertion by the people of Pakistan of the importance of women’s rights and women’s education may be the best response we have yet seen to the demands of the Taliban, and a consideration that they may not be accepted by the people themselves, which would be the best guarantor of women’s rights in the future.

[Mr John Baron (Basildon and Billericay) (Con)]

The education of girls is of course very laudable, but does the Minister agree that the main reason we are in Afghanistan is to deny that country being used as a base by international terrorists?

[Alistair Burt]

Yes. The reason we are in Afghanistan is for both our national security and theirs, and to ensure that the use that was made of Afghanistan’s territory in the past is not made in the future. That is why we have been there; our forces have done a remarkable job and so have the development workers. They will continue their work post-2014 to ensure as best they can the future stability of that country for its own security and for the security of the rest of us.

[Mr John Spellar (Warley) (Lab)]

As the Minister rightly identified, since the fall of the Taliban in 2001 the number of girls going to school has risen from fewer than 5,000 to 2.2 million. That is an achievement Britain can be proud of. Maintaining that progress is crucial, both to the development and the future security of Afghanistan, so what initiatives is he taking with the Government of Afghanistan and, equally importantly, with neighbouring powers to ensure that progress continues after the draw-down of ISAF?

[Alistair Burt]

I thank the right hon. Gentleman for what he said about the progress that has been made. There are two things in response. The first is the Tokyo international agreement in July; the United Kingdom has been asked by Afghanistan to co-chair the first review of it in 2014. It is a series of commitments made by the Afghanistan Government in relation to a variety of matters, such as social and economic development, including the rights of women. In addition, the enhanced strategic partnership that the Prime Minister signed with President Karzai in January this year also includes commitments on women’s rights, and we will be looking to ensure that those rights are confirmed in the future as our development support continues.

[Laura Sandys (South Thanet) (Con)]

12. What progress his Department has made in its efforts to support UK exports.

[The Minister of State, Foreign and Commonwealth Office (Mr Hugo Swire)]

My Department is supporting UK growth and helping to realise our ambition to double UK exports to £1 trillion by 2020. We have a good story to tell. We are transforming the level of commercial awareness in the Department through secondments and training. We are supporting small and medium-sized enterprises exporting to emerging markets, including helping them to manage the risks involved, through our overseas business risk service.

[Laura Sandys]

My thanks to the Minister. I am very pleased that the Foreign Office is taking such a leading role in our trade efforts and that UK Trade and Investment held a successful event in my constituency. What other steps are we taking to expand missions in our embassies and the appreciation of trade on the ground?

[Mr Swire]

My hon. Friend raises a very important point, which is getting hon. Members to understand that the facility is available. The more people who do, the better we can export. We have UKTI, and small and medium-sized enterprises will take part in its export week from 12 to 16 November, when more than 100 events will be organised across the UK. We have the overseas business risk service, and members of my Department spoke to members of the Kent international trade office on 18 October about the help that the Foreign Office can offer. I am glad that it is working with her, but I urge right hon. and hon. Members across the House to make use of the facilities for their local small and medium-sized enterprises. We can help—we are here to help—and if Members have any problems and encounter difficulties, my office door is always open.

[Toby Perkins (Chesterfield) (Lab)]

22. Despite what the Minister said, exports of goods in the second quarter continued to fall, and the £10.2 billion trade deficit in June was the worst since 1997. UK exporters tell me that the increasingly isolationist rhetoric by members of the Government has done little to develop the notion that Britain is open for business, and suggests that the Government just want to be alone.

[Mr Swire]

I do not know how to respond to that. It may have escaped the hon. Gentleman’s notice that there has been a bit of economic turbulence in the eurozone, which is an important market for us. The network shift over which the Foreign Office is presiding involves more people in more places, particularly in emerging and re-emerging markets. We are opening up 11 new embassies, and eight new British consulates and trade offices. We are redeploying 300 extra staff in more than 20 countries in Asia, Latin America and Africa. If that is his definition of isolationism, it is not mine.

[Jonathan Ashworth (Leicester South) (Lab)]

13. What discussions he has had with his international counterparts on sectarian violence in Rakhine state in Burma.

[The Minister of State, Foreign and Commonwealth Office (Mr Hugo Swire)]

Yesterday, I called the Burmese chargé d’affaires into the Foreign and Commonwealth Office to discuss our serious concerns about the violence in Rakhine state. This follows the meeting of my right hon. Friend the Foreign Secretary with Burma’s Foreign Minister in New York in September, and my own meetings during the UN General Assembly. There is an urgent need for an end to the violence, for the Burmese authorities to ensure security in the region, and for humanitarian access.

[Jonathan Ashworth]

I am grateful to the Minister for that answer. Given the levels of sectarian violence that have unfolded in recent days, particularly against the Rohingya community, but also against all communities, with thousands of homes destroyed and thousands of people displaced, and people being killed, do we not need the clearest possible assurances from the Burmese Government that they will end the violence, ensure an end to impunity and work with the UN to address the underlying causes of the tension in that region?

[Mr Swire]

I congratulate the hon. Gentleman on securing a Westminster Hall debate on the Rohingya community a few weeks ago. It is worth pointing out that any suggestion that the violence has been orchestrated by the Burmese Government is erroneous. We look forward to hearing from their independent investigation commission, which will shortly report on what has caused the violence. In early October, the British ambassador led the first independent diplomatic mission to Rakhine state to meet key leaders and visit camps sheltering internally displaced people from both communities. I am pleased to say that we are doing a lot on aid, but we need this to be settled, as it is extremely worrying to everyone who is following these events.

[Roger Williams (Brecon and Radnorshire) (LD)]

Burma’s failure to address the welfare of the Rohingya people and, indeed, Bangladesh’s failure to recognise them at all, means that they are virtually stateless. Will the Minister ensure that he takes a bilateral approach to the problem, so that we can secure the safety of people in Rakhine state?

[Mr Swire]

The hon. Gentleman makes an extremely good point. The British high commission in Dhaka, along with our EU partners, has had regular conversations on the matter. It is important to talk to Bangladesh, and my right hon. Friend the Foreign Secretary has spoken to Sheikh Hasina, as has the Prime Minister. It is important on two counts: first, to ensure that those people receive humanitarian aid on the Bangladeshi border and, secondly, that people are allowed free movement across the border, because there is a serious humanitarian problem there.

[Rushanara Ali (Bethnal Green and Bow) (Lab)]

With reports by Human Rights Watch of major human rights violations, along with the displacement and the killing of 78 people, what action has the Foreign Secretary taken to secure international pressure on the Burmese Government, because previous representations have clearly not worked, and we need urgent action?

[Mr Swire]

I do not think that that is particularly fair on the Burmese Government. My right hon. Friend the Foreign Secretary and I discussed these matters extensively in New York. We await the report from the Burmese Government, and our ambassador has been to the area. We think that the Burmese Government are doing what they can with their army and police. Inter-communal violence has gone on for a number of years in that part of the world, as the hon. Lady will be aware. The matter needs to be resolved, not least the issue of citizenship for the Rohingya people.

[Kerry McCarthy (Bristol East) (Lab)]

I welcome the Foreign Secretary’s recent support for a review of the 1982 Citizenship Act which, as we have already heard, is one of the underlying factors rendering the Rohingya stateless. It is also important that Bangladesh is brought into discussions about citizenships. Will the Minister tell the House what efforts are being made to bring those parties to the table?

[Mr Swire]

The hon. Lady is right. I alluded to that in my earlier remarks. We think citizenship is important. We have been pressing for many years for the Burmese Government to recognise this. The Foreign Secretary raised the matter with his opposite number back in September. On Bangladesh, yes, again the hon. Lady is right. Bangladesh does have a role to play. The first thing is to solve and to stop the violence that flared up again as recently as a few days ago. That must come to an end. We must make sure that there is proper humanitarian access and that aid gets in to those people who are displaced and homeless, and then we must see the report that comes out from the Burmese Government. Certainly, any long-term solution needs to address the long-standing issue that has too often been ignored about the right of those people to have a state. That needs to be resolved in the round. I wholly concur with the hon. Lady’s remarks.

[Huw Irranca-Davies (Ogmore) (Lab)]

T1. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)]

Tomorrow we will welcome the President of Indonesia on a state visit. We are intensifying our diplomatic and economic links across south-east Asia. As well as having one of the world’s most thriving economies, Indonesia is in the vanguard of the political change shaping Asia, and this visit will be an opportunity for us to build on the strong partnership established over the past decade.

[Huw Irranca-Davies]

For nearly a decade I have been a supporter and patron of the Bereaved Families Forum Parents Circle, a grass-roots organisation which brings reconciliation and tolerance in Israel and the Palestinian territories. May I ask the Secretary of State or his Minister to pay tribute to this organisation and, at his earliest convenience on their next visit to the UK, to meet me and members of the group to discuss their work and how they can be further supported?

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)]

Yes, I can indeed commend the hon. Gentleman for his work with that group, which we know and think very well of. Its members do a difficult job trying to bring together people from both sides of the divide through their grief. I would be very happy to meet the hon. Gentleman and members of the group when it is convenient for both of us.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

T3. Like many others in the House, I welcome the Government’s efforts to keep the EU budget in check. Will my right hon. Friend be taking any lessons on that from the past example or present policy of the Labour party?

[Mr Hague]

That would be a strange thing to take any lessons from, because when the shadow Foreign Secretary was Minister for Europe, the Labour Government signed away £7 billion of the British rebate with nothing in return. It is notable that last year Labour MEPs voted against a budget freeze in Europe because they wanted an increase instead. It is also notable that in the time that the shadow Chancellor was a Treasury adviser and in the Cabinet, the annual EU budget increased by no less than 47%.

[Mr Douglas Alexander (Paisley and Renfrewshire South) (Lab)]

Let me return to the subject of Europe, but its relationship with Iran. I associate myself with the latest round of sanctions that have been imposed. Given the imminence of the elections in the United States, what does the Foreign Secretary regard as being the next steps in the diplomatic engagement on the nuclear issue with Iran? In particular, following a rather well-sourced, I understand, piece in The New York Times last week, how does he judge the prospects for bilateral discussions between the United States and Iran on this issue?

[Mr Hague]

The United States and Iran have both denied the prospects, let alone the existence, of such bilateral talks. The next step is for the E3 plus 3 nations, of which we are one, to consider what we can do in any further negotiations with Iran. Our experts are meeting on this. Of course, it is necessary for the US elections to be completed before any further round of negotiations can take place. We are open to those negotiations. We are considering whether to amend our approach in any way, but it remains the case that for them to be successful, Iran would have to engage with those negotiations in a much more meaningful way than before. In the absence of that, we have agreed intensified sanctions on Iran in the European Union, and I want Iran to know that as long as these negotiations are not successful, we will go on intensifying the sanctions pressure upon it.

[Gavin Williamson (South Staffordshire) (Con)]

T4. For over a decade the United Kingdom has supported Sierra Leone, both financially and through military involvement. Will my hon. Friend assure the House that he will do all he can to ensure that next month’s elections in Sierra Leone are free and fair?

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mark Simmonds)]

I am grateful to my hon. Friend for raising that important matter and can assure him that we are monitoring events carefully. For the edification of the House, the elections in Sierra Leone are on 17 November. All parties have completed their nomination procedures, political supporters have been active, there has been no serious trouble so far, thankfully, and the electoral institutions are making progress, but I acknowledge that there is more to do. The Department for International Development has a programme for the electoral cycle, from 2010 to 2014, and the high commission is engaged with the political leaders and, on election day, will provide a team of observers to ensure that the elections are free and fair.

[Mark Lazarowicz (Edinburgh North and Leith) (Lab/Co-op)]

T2. In the earlier discussion on Syria we did not talk about the refugees, but of course hundreds of thousands of people, both internally and in neighbouring countries, are now homeless and face a desperate situation. What are we and the international community doing to assist them?

[Mr Hague]

The hon. Gentleman is quite right to draw attention to that. There are now up to 350,000 refugees in neighbouring countries, about 1.2 million people are thought to be internally displaced in Syria and about 2.5 million need humanitarian assistance. It is a rapidly escalating humanitarian crisis that will only get worse in the coming months. The United Kingdom is the second largest bilateral donor to the relief effort. We have so far given £39.5 million and consideration is being given to what further assistance we can give. We are also helping directly as well as through UN agencies, particularly in Jordan, so we are doing everything we can to alleviate the suffering in the crisis.

[Simon Kirby (Brighton, Kemptown) (Con)]

T5. In the past three months our exports to the EU fell by 7.3% while our exports to the rest of the world rose by 13.2%. Does the Foreign Secretary agree that Britain’s future relies on strong trading relationships with the emerging economies that were largely neglected by the Labour party?

[Mr Hague]

My hon. Friend is absolutely right. That is why we are opening the 19 embassies and consulates to which the Minister of State, Foreign and Commonwealth Office, my right hon. Friend the Member for East Devon (Mr Swire), just referred. We are determined to expand Britain’s market share in the fastest-growing economies. In the past two years, from August 2010 to August 2012, we have seen an increase in our exports to China of 46%, to South Korea of 69% and to Thailand, which I will visit next week, of 118%.

[Mr Andrew Love (Edmonton) (Lab/Co-op)]

The civil war in Syria and the estimated 100,000 refugees are having a seriously debilitating impact on Lebanon and remind us of the horrors that took place in that country between 1975 and 1990. What steps are the Government taking, through the international community, to try to return some stability to that country?

[Mr Hague]

Again, that is an absolutely crucial issue. It is not a containable crisis, as I said earlier, and the impact on Lebanon is the starkest and most worrying example of that. We are working closely with the authorities in Lebanon. After the recent bomb outrage, the Prime Minister spoke immediately to the Prime Minister of Lebanon to urge stability, and our ambassador there is very active. We have increased the assistance we give directly to the Lebanese armed forces and, of course, much of the humanitarian assistance we are giving is going to Lebanon.

[Martin Horwood (Cheltenham) (LD)]

Will the Foreign Secretary confirm that the EU annual budget and multi-annual framework increased at least a dozen times while Labour was in power but that to accuse that Government of being responsible for all those complex and EU-wide budget increases would be as simplistic and opportunistic as the attack made by the right hon. Member for Morley and Outwood (Ed Balls) on this Government yesterday?

[The Minister for Europe (Mr David Lidington)]

I think that we have to judge the previous Government on the basis of what they actually did while in office. The fact remains that they took decisions that conceded the loss of a quarter of the United Kingdom’s hard-won rebate and left us with a current financial framework for the EU that was £13 billion over what they said in office would be the maximum they would accept. They let our country down, and they let it down badly.

[Jeremy Corbyn (Islington North) (Lab)]

What contact has the Foreign Secretary had with the Government of Turkey concerning the ongoing hunger strikes of Kurdish political prisoners and the demand for the release of Ocalan so that there can be negotiations on a future for the Kurdish people in Turkey whereby their language and their culture will be fully recognised in accordance with the recommendations of the Council of Europe?

[Mr Lidington]

We always try to make it clear in our conversations with the Turkish Government at both ministerial and official level that it is important that Turkey continues to make progress towards political reform and full implementation of the rule of law measures that we all want to see. I hope that the discussions between the Turkish political parties on a new constitution take us several steps forward. I would be happy to talk to the hon. Gentleman further about the particular case that he has described.

[Mr Robert Buckland (South Swindon) (Con)]

Will my right hon. Friend update the House on developments in Somalia?

[Mr Hague]

Yes, absolutely. We welcome the election of a new President of Somalia, to whom I spoke directly after his election. The new Under-Secretary, my hon. Friend the Member for Boston and Skegness (Mark Simmonds), has already visited Somalia with the International Development Secretary. Important progress has been made since the London conference on Somalia, with a reduction in piracy, al-Shabaab in military retreat, and now a new and legitimate President. The United Kingdom will continue its strong support for these developments and the international leadership that we have given in relation to them. We will place just as much emphasis on Somalia in the coming year as we have in the past year.

[Mr Nigel Dodds (Belfast North) (DUP)]

What assessment has been made of the monitoring report by the Organisation for Security and Co-operation in Europe on the outcome of the Ukrainian parliamentary elections?

[Mr Lidington]

We have had a preliminary report from the observers that indicates a number of shortcomings. We hope that in the remaining stages of the electoral process, in any appeals that follow, and, crucially, in how the Ukrainian Government conduct themselves after the elections, we will not see the wholesale democratic backsliding that we fear and that would set back Ukraine’s relationship with Europe.

[Peter Aldous (Waveney) (Con)]

Many emerging economies such as China are showing significant interest in investing in energy projects off the East Anglian coast. Will the Minister outline his plans, working with other Departments, to maximise these trade opportunities to create jobs?

[The Minister of State, Foreign and Commonwealth Office (Mr Hugo Swire)]

Indeed we can do that. We are in a good position with China at the moment, not least following our acceptance of the very important investment of companies such as Huawei, which places us very well to take in further investment. We have been talking about exports, but it is worth pointing out that the flipside of the coin for this country is inward investment, with some £250 billion-worth of opportunities in our infrastructure between now and 2020. We do need Chinese investment. We need investment from around the world, and we welcome that. If my hon. Friend has good examples in his constituency, that is all to the good.

[Mr Speaker]

I call Mr Kelvin Hopkins. [Interruption.] I thought that the hon. Gentleman wanted to ask a question. Well, it will have to wait for another time; fair enough. I call Mr David Winnick.

[Mr David Winnick (Walsall North) (Lab)]

I hope that the nation will appreciate that, Mr Speaker.

Is it not of interest that both United States presidential candidates have emphasised in the debates that took place between them their support for sanctions rather than any military strike against the Iranian regime? Does not that very largely express the mood in the United States, let alone here, that warmongering, which unfortunately some people are involved in—certainly not the Foreign Secretary—would be wrong and counter-productive?

[Mr Hague]

Both candidates in the presidential debates have, yes, been talking about the policy that I have been talking about in this House. I am sure that the two candidates for President of the United States are the experts on the mood in the United States more than any of us can possibly be here. Our approach, and that of the United States, is based on sanctions and negotiations. The United States is part of the E3 plus 3 nations that I have been talking about, and its sanctions are as strict as anyone’s, so it clearly believes in this approach.

[Mr Edward Leigh (Gainsborough) (Con)]

Is there not a democratic imbalance—I know that the Foreign Secretary will agree with this question and so give a good answer—in allowing every 16-year-old in Scotland to vote on whether to remain in the Union while ensuring that no one in this country under the age of 55 has ever had a chance to vote on whether we should stay in the European Union?

[Mr Hague]

Since my hon. Friend seems to know that I will agree with him, I am not sure why I am bothering to answer to question, but the rules of the House require me to do so.

[Chris Bryant (Rhondda) (Lab)]

Tell that to the Prime Minister.

[Mr Speaker]

Order. Mr Bryant, calm yourself. I am worried about you—you are supposed to be a statesman.

[Mr Hague]

That does not mean that I am going to give a very full or enlightening answer. My hon. Friend is comparing apples with oranges when he talks about the voting age in one referendum and the time elapsed since another referendum. I am sure that he appreciates that.

[Mark Durkan (Foyle) (SDLP)]

In Azerbaijan there is continuing arbitrary detention, torture and trumped-up charges against human rights defenders, journalists and now even YouTube uploaders. What active interest is the Government taking in relation to a number of recent and current cases in the courts?

[Mr Lidington]

We raise both general concerns and individual cases in the regular conversations between our ambassador and the Azeri authorities. I also do so myself when I have what are quite frequent conversations with the Azeri Foreign Minister.

[Several hon. Members]

rose—

[Mr Speaker]

Order. I am sorry to disappoint colleagues, but as I have said before this is a box office occasion and I hope that colleagues disappointed this time will not be disappointed next time.

Winterbourne View

Tuesday 30th October 2012 Commons Chamber

12:35

[Liz Kendall (Leicester West) (Lab)]

(Urgent Question): To ask the Secretary of State for Health to make a statement on the steps the Government have taken to ensure the safeguarding of former Winterbourne View residents.

[The Minister of State, Department of Health (Norman Lamb)]

The review into the abuse at Winterbourne View hospital, established by my right hon. Friend the Member for Sutton and Cheam (Paul Burstow), set out 14 actions to transform care and support. Central to the review is ensuring the safety and well-being of these very vulnerable people. I shall publish the final report before the end of November.

When Winterbourne View closed, NHS commissioners put in place independent clinical and managerial supervision and commissioned an independent assessment of every patient. The Care Quality Commission worked with commissioners to relocate Winterbourne View patients to suitable alternative placements.

In March, the Department of Health review team commissioned NHS South of England to follow up the 48 patients who had been in Winterbourne View, and there was a further review in September. The first review in March revealed that 19 former patients were the subject of safeguarding alerts. In response to this, officials asked commissioners to take appropriate action and confirmed that a follow-up would take place in six months’ time. I was extremely concerned to be informed that this follow-up had revealed that there are current safeguarding alerts for six former patients. I am assured that these are all being followed up to ensure the safety and well-being of the individuals concerned. That is extremely important. Furthermore, the September follow-up exercise revealed that 32 Winterbourne patients were now living in the community in their own family homes, in supported living or in a residential care home, with 16 still living in hospital settings.

The priority is to improve commissioning to develop the good local services that will prevent people from being sent to hospital inappropriately. We are working closely with the NHS Commissioning Board, the Local Government Association and directors of social services on what support local services need. Although a small number of people will need hospital treatment, we expect to see—and, indeed, must see—a substantial reduction in the number of in-patients.

We intend to strengthen safeguarding arrangements to prevent and reduce the risk of abuse and neglect of adults in vulnerable situations. Where there are safeguarding concerns, the local safeguarding adults boards need to be closely involved. The boards will be placed on a statutory footing for the first time, ensuring a co-ordinated approach to local adult safeguarding work.

The Government will put in place the necessary legislation for safeguarding adults boards, and local councils should bring clarity to their roles and responsibilities, but it is the responsibility of the care provider—we must remember this—to ensure a culture of safety, dignity and respect for those in their care, including stopping abuse before it happens. Those providers must be held to account for the care that they provide.

[Liz Kendall]

I thank the Minister for his statement, but there remain serious concerns about whether the Government have taken all necessary steps to ensure that the former patients of Winterbourne View are now receiving safe and effective care. Last night’s “Panorama” programme revealed that 19 patients have been subject to safeguarding alerts since leaving Winterbourne View. Not all those alerts mean that someone has been harmed, but “Panorama” said that one was due to an incident of assault and another had resulted in a criminal investigation. Is that an accurate reflection of the picture?

Have the families of all patients with a safeguarding alert been given the full details? What specific action has been taken as a result of the alerts, and can the Minister guarantee that the patients in question are all no longer at risk? Can he also guarantee that all local commissioners responsible for all the former Winterbourne View residents now have a proper plan in place to ensure that they receive good-quality care?

Has the Care Quality Commission recently inspected all the providers that former Winterbourne View patients were moved to, and are the Government confident of the CQC’s findings? Last night’s programme raised particular concerns about Postern House, which the CQC inspected in January this year following the Winterbourne View scandal. The CQC said that it met all the essential standards of quality and safety, and that suitable arrangements were in place to ensure that people were safeguarded against the risk of abuse, yet “Panorama” revealed a number of problems at Postern House over several years and the fact that a former Winterbourne View patient had a safeguarding incident there in June this year. Is the Minister confident that all patients currently in Postern House are safe from the risk of abuse?

The Minister rightly said that responsibility for the care of people with learning disabilities lies with providers, commissioners and the CQC, but it is Ministers who set policy and have responsibility for ensuring that it is implemented. The Government have a particular responsibility to ensure that former Winterbourne View patients never have to suffer from such appalling abuse again. Organisations such as Mencap are also very concerned that the Government are not moving quickly or strongly enough to end the practice of sending patients with learning disabilities to long-stay institutions far away from their family and friends.

The Minister must answer our questions about whether former Winterbourne View residents are all now guaranteed safe care, and he must urgently bring forward proposals to reform learning disability services properly for the future.

[Norman Lamb]

I thank the shadow Minister for asking the urgent question. The view is shared on both sides of the House that what “Panorama” exposed is utterly intolerable and has to come to an end. I am absolutely determined that when I make the Government’s final response by the end of November, it will be robust and clear so that everybody understands what has to happen.

When I came into my job, I heard briefings about the whole saga and how long it has gone on. For years and years, public money has been spent on putting people into inappropriate settings, often putting them at risk of abuse. That is a national scandal, and it has to end. I will be very clear about ensuring that we take robust and effective action.

The hon. Lady is absolutely right that Ministers are here to set policy, and that is what I intend to do. Since my appointment, I have been working to ensure that we set the right policy to protect vulnerable individuals. She is right that they must never suffer from abuse. Of course, there is always the risk of rogue individuals who behave very badly, and they must be dealt with through the criminal law, as has been seen with Winterbourne View staff. I have also made the point that the corporate owners of such organisations must be held to account for things that go on in their homes if those homes have been neglected. I want to meet the parents of those who were at Winterbourne View to hear from them directly, and I will seek to make arrangements for that.

The hon. Lady mentioned the 19 safeguarding alerts. In fact, that intolerable figure was in March but by September, the number was down to six. She is right, of course, that not every safeguarding alert means that something awful is happening. It means that concerns have been raised, and it is important that people raise their concerns. I assure her that I will do everything I can to end this scandal and ensure that we have proper safeguarding arrangements in place.

[Jack Lopresti (Filton and Bradley Stoke) (Con)]

Will my hon. Friend assure the House that the alerts are being actioned and dealt with? We know that on previous occasions, South Gloucestershire council and Avon and Somerset police received countless alerts, but if it had not been for the BBC and “Panorama”, we would never have found out about this issue. When I saw the programme last night, I was appalled that patients can be moved hundreds of miles without their families—and their parents in particular—being told. I thought that was an outrage.

[Norman Lamb]

My hon. Friend raises extremely important points. First, we must ensure that the alerting system works effectively. We are putting safeguarding boards on a statutory basis. That is important and means that all key players will have a part in ensuring that adults in vulnerable situations are kept safe. We must ensure that alerts always work effectively in the future.

My hon. Friend’s point about individuals being placed a long distance away from home is of absolute concern. It strikes me that if someone is placed far away from their community, in what is effectively a closed setting, conditions are created for potential abuse to take place. That has to stop.

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

Does the Minister agree that there can be no excuse for abuse in any setting at any time? Is there not a profound problem that many of our most vulnerable citizens up and down the country are looked after by people who are poorly trained, poorly qualified and paid the minimum wage for 12-hour shifts? Is that the underlying root of this problem?

[Norman Lamb]

First, it is important to make it clear that many highly dedicated care workers provide fantastic quality care for elderly people and other adults in vulnerable situations. However, the hon. Gentleman is right to address the fact that we need to raise standards across the board. We are working with Skills for Care to ensure there is a code of practice to implement proper standards, and that minimum training standards apply across the sector. We must also ensure that we keep people in good health and well-being in their own homes as much as possible, reducing the number of people who go into care and nursing homes. That will make it possible to spend more on those people who do need to go into a home, and ensure that standards are maintained at the right level.

[Paul Burstow (Sutton and Cheam) (LD)]

As we learnt from Winterbourne View, the absence of safeguarding alerts is not necessarily a sign that everything is okay. Winterbourne View was receiving £3,500 a week for some of its residents, yet it was delivering very poor care and allowing its staff to abuse. In future, can we ensure that the contracts let by social service departments and the NHS are written not by the provider, but by those who are buying the service in the first place to get the right quality of care?

[Norman Lamb]

I pay tribute to my right hon. Friend for his work in this area. He draws attention to the fact that there is a serious issue about the quality of commissioning and the work done by primary care trusts and, in some cases, local authorities. Too often, people seem to be placed in those settings and then to all intents are purposes forgotten about, which is not acceptable. Standards of commissioning and ensuring that contracts contain the right terms are extremely important.

[Mr Andrew Smith (Oxford East) (Lab)]

Does the Minister agree that this whole dreadful saga—which he rightly describes as a national scandal—underlines the importance of self-advocacy for vulnerable people? In his legislation and any guidance that may follow from it, will he take steps to ensure that the voices of these most vulnerable people will be heard directly wherever possible?

[Norman Lamb]

The right hon. Gentleman makes an extremely valuable point, and I would be happy to discuss that with him further. Too often in the past there has been a paternalist approach in which others have decided what is best for individuals. Hearing the voice of people with learning disabilities is absolutely central to getting this matter right.

[Claire Perry (Devizes) (Con)]

People who watched “Panorama” will know that a tall, flame-haired young man named Simon Tovey was one of the patients who suffered horrific abuse. His mother, Ann Earley, is my constituent, as is Simon, who has now returned to a lovely community care home in West Lavington. Mrs Earley believes that the views of parents in particular were not heard under the system—they knew for years the problems pertaining to Simon’s care. What reassurance can the Minister give to Mrs Earley, and the House, that the views of parents and other responsible adults will be included when seeking to avoid these tragedies in the future?

[Norman Lamb]

It struck me when I listened to the story of that family that I would like to meet them if they are interested in having that discussion. Just as it is essential that people with learning disabilities have their say, it is critical that the family is involved in the discussions before the commissioning takes place, so that they are partners in the decisions that are taken in respect of those individuals.

[Mr Dave Watts (St Helens North) (Lab)]

Can the Minister reassure the House that there are sufficient inspectors to go around those establishments during the day, during the evening and at night to ensure that standards are maintained?

[Norman Lamb]

Inspections are essential to ensure that we identify where problems exist. The role of the Care Quality Commission is critical in that respect. We need to do more to open up those establishments to public view. One role that the new local HealthWatch can take is to go into care homes, nursing homes and so on to see for itself. The more there is a culture of openness, the less likely it is that abuse will take place.

[Mr Robert Buckland (South Swindon) (Con)]

I commend to my hon. Friend the work of organisations such as the Swindon Advocacy Movement, which does so much work not only to advocate for service users, but to train volunteers, so that more adults with learning difficulties can stay in the communities in which they live, work and thrive. In that way, the nightmare scenario of Winterbourne View can be avoided in future.

[Norman Lamb]

I absolutely commend the work of the organisation to which the hon. Gentleman refers and would be interested to hear more about it. The scandal is that so many people over so many years have been put into institutions and ended up there for years when their care would be much more appropriate for their needs if it took place in their communities through supported living or in a care home. As my right hon. Friend the Member for Sutton and Cheam (Paul Burstow) mentioned, the extraordinary thing is that we were spending public money—on average, £3,500 per patient in Winterbourne View—to put people at risk of abuse. Often, an appropriate care package costs less than that, and gives the individual the care they need in their own community.

[Fiona Mactaggart (Slough) (Lab)]

I have raised with the Minister and his predecessor the problem that, often, the responsible authority does not know where people are placed. Families might have died since the placement, and yet there is no national audit of placements of people with learning disabilities, who are often placed a long way from their home. When the Minister returns to the House in November, will he ensure that there is an audit of where people are placed so that we can track them properly?

[Norman Lamb]

I shall certainly consider the hon. Lady’s point and am happy to discuss it further with her. At the end of the day, we must ensure that people in highly vulnerable situations are adequately protected. I want to ensure that all the steps we take are aimed at that goal.

[Chris Skidmore (Kingswood) (Con)]

The Minister has mentioned raising the standard and quality of care providers. Will he consider the introduction of a starred grading system for care providers, so that we have absolute transparency on how well they are performing, and so that we know the most excellent care providers and the worst?

[Norman Lamb]

My hon. Friend raises an important point. One thing we are doing on the NHS Choices website is having quality indicators for every care home, nursing home and so on. That means that any individual looking for a care home for a loved one will be able to find out much more about the quality of the care that an organisation provides. In due course, the website will include user reviews, so that people who have experienced care in those homes will have their voices heard. That openness of information could have a transformational effect in driving up standards.

[Emma Reynolds (Wolverhampton North East) (Lab)]

It beggars belief that some of the vulnerable adults who were subjected to the most appalling and horrific abuse at Winterbourne View were moved to other providers where they were either abused—according to the “Panorama” allegations—or at risk of further abuse. Will the Minister reassure me that all local commissioners responsible for each of the former Winterbourne View residents have a proper plan in place to guarantee that they are now receiving safe and effective care?

[Norman Lamb]

I share the hon. Lady’s view on what has happened. We must make absolutely certain that every commissioner is held to account. My understanding is that proper arrangements are in place for all those individuals, but I will continue to monitor the situation to ensure that that remains the case. We must be alert to the interests of the 48 residents who were in Winterbourne View, but we must also focus our minds on the 1,500 people who are in settings of that sort—assessment to treatment centres—often for years. The interests of all those individuals are important.

[John Pugh (Southport) (LD)]

To put it bluntly, after all this, is the Minister still confident in the CQC and does he believe that it is fit for purpose?

[Norman Lamb]

I tend to the view that we have had too many changes of regulator over a number of years, and that continuity would be a good thing. An assessment of the CQC earlier this year indicated that it was on the right track. I have met the new chief executive and am reassured by the plans he has in place. It is seductive to believe always that it is an attractive proposition to abolish an organisation and set up a new one, but is there any more chance that a new organisation will be better? Let us therefore make the CQC work properly.

[Grahame M. Morris (Easington) (Lab)]

I welcome the Minister’s response—he is sincere in his desire to address these issues. Does he recognise the important role of whistleblowers? Does he have any information on concerns raised by whistleblowers in respect of the alternative provision before Winterbourne View patients were transferred?

[Norman Lamb]

The role of whistleblowers is central. Importantly, the Government have funded a whistleblowing helpline, which is available to any worker in the care sector—it covers all care homes. It is important that any worker at any stage feels they can raise their concerns with the relevant authorities so that they are properly investigated. What happened with the whistleblower at Winterbourne View was not acceptable, because their concerns were not taken up effectively.

[Rehman Chishti (Gillingham and Rainham) (Con)]

I welcome the Minister’s statement. On inspection, can he clarify what provision exists for inspectors to speak to patients? How will that be further enhanced?

[Norman Lamb]

I am sure that inspectors can speak to patients, and that they routinely do so, but I will check on the important point the hon. Gentleman makes. We mentioned earlier the views of those with learning disabilities and their families, but it is essential that the regulator hears directly from them of their potential concerns.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I am not sure that the Minister has made his position clear. Is it his intention to end the appalling practice whereby vulnerable people can be transported to establishments hundreds of miles away from their home town at the whim of the authorities and without the knowledge and consent of their families?

[Norman Lamb]

I have tried to be clear on my views on what has been happening—it has been going on for years. As I have said, the fact that someone is sent 200 miles away from home creates the conditions in which abuse is more likely than if they are in their own community. I want that to end—I want to be as clear as I can that that is a national scandal that needs to be brought to an end.

[Jim Shannon (Strangford) (DUP)]

I thank the Minister for his comments. I also watched the “Panorama” programme last night and was horrified. According to the local council and the Minister, changes have been made. Will he confirm that the lessons learned will be conveyed to the devolved Administrations in Scotland, Wales and Northern Ireland to ensure that this terrible abuse never happens again anywhere in the UK?

[Norman Lamb]

The hon. Gentleman makes an essential point. Wherever people are, they must be protected from potential abuse and benefit from high standards of care. I will give him my absolute assurance that we will work closely with the devolved Administrations to ensure that people receive that benefit, wherever they are in the UK.

[Bridget Phillipson (Houghton and Sunderland South) (Lab)]

I heard the Minister’s earlier answer on the importance of whistleblowing, but will he set out what further steps he will take to encourage staff to whistleblow and to ensure that, when they come forward with concerns, they do not suffer retribution as a result?

[Norman Lamb]

The legal framework is satisfactorily in place to protect whistleblowers who raise their concerns with the relevant authorities, but this is about culture. We must do everything we can to ensure that providers encourage their staff to raise concerns—internally first, if possible, but with other authorities, if necessary—whenever they see abuse or neglect taking place. We must also encourage individuals to feel safe about raising concerns. The framework of protection is there for individuals to do that.

[Chris Bryant (Rhondda) (Lab)]

There are two problems. First, the “out of sight, out of mind” mentality has meant that thugs have been able to get away with terrible behaviour in care homes. Secondly, despite the enormous advances in ischaemic heart disease, cancer and diabetes, for example, the amount of money invested every year to find solutions and treatments for mental health conditions remains very poor.

[Norman Lamb]

On the first point, I agree with the hon. Gentleman that these closed settings and institutions too often create the conditions for abuse to take place. It is all the more important, then, to get the regulation right for the sake of those individuals who have to be in such institutions—a minority have to be there for their own safety or that of the public. On the second point, he raised the general issue that for a long time—probably, it has always been the case—mental health has been a poor relation to physical health in terms of the amount of money spent on research and how the money flows within the NHS. I seek to address that.

[Kerry McCarthy (Bristol East) (Lab)]

In Bristol, we face the closure of care homes, while south Gloucestershire is outsourcing the in-house home care teams. Following the case of Winterbourne View, which is just outside my constituency, there is a lack of confidence in the area in the private sector. What can the Minister do to reassure people that it is safe to place vulnerable relatives in private sector care homes?

[Norman Lamb]

First, abuse is unacceptable and horrifying wherever it takes place, whether in the public sector or the private sector. The review that followed Winterbourne View being exposed revealed poor standards of care in too many places in both the public and private sectors. We need to be clear on that. Secondly, I have questioned whether there is adequate corporate accountability and whether adequate rules and regulations are in place to ensure that accountability. If people are making a profit out of providing care, they have to be held to account for the standards of that care.

[Diana Johnson (Kingston upon Hull North) (Lab)]

May I raise with the Minister my concerns about the relaxation of checks on people who work with vulnerable adults and children, as set out in the Protection of Freedoms Act 2012? As a new Minister, will he undertake to look at the specific provisions in that Act and see whether he is satisfied that our most vulnerable people are protected?

[Norman Lamb]

I am happy to discuss the matter further with the hon. Lady. It is clear, though, that when a care home provider seeks to recruit a member of staff to work with people in a care home setting, they have to—[Interruption.] They are obliged in law to carry out criminal records checks on people who work within that setting. I repeat, however, that I am happy to discuss the matter with the hon. Lady and to look again at the issues.

[Ian Lucas (Wrexham) (Lab)]

As the Minister has made clear—his commitment is coming through—the care provider is key. As he moves forward, will he look at whether there is any disparity between private and public sector provision? In cases that I am aware of, there has been a qualitative difference: vulnerable individuals are not being looked after as well as they ought to be by some private sector providers.

[Norman Lamb]

We probably all know from our constituencies of fantastic private sector care providers that provide a fantastic quality of care to older or younger adults with disabilities and so on, so we must be careful not to condemn the whole sector. My clear view is that wherever there are low standards of care it is unacceptable. But let us remember Mid Staffordshire hospital, where hundreds of people lost their lives unnecessarily owing to poor standards of care. It can happen in both public and private sectors. We must find it intolerable in both.

Points of Order

Tuesday 30th October 2012 Commons Chamber

13:05

[Mary Creagh (Wakefield) (Lab)]

On a point of order, Mr Speaker. During yesterday’s urgent question on ash dieback, we discussed the Government’s reductions to forest research, and I inadvertently misled the House. I said that they had cut it from £12 million to £7 million, but in fact the figure is £10 million. I hope that the House will accept my apology and that the record can be put straight.

[Mr Speaker]

I am sure that the House is extremely grateful to the hon. Lady. What she said is now on the record.

[Jonathan Ashworth (Leicester South) (Lab)]

On a point of order, Mr Speaker. In response to a written question from my hon. Friend the Member for Barnsley Central (Dan Jarvis) on the burial of what we hope turns out to be Richard III, the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant), wrote on Friday that

“the current plan is for them to be reinterred in Leicester Cathedral.”—[Official Report, 25 October 2012; Vol. 551, c. 997W.]

That answer was welcomed and seen as very exciting in the city of Leicester. Last night, however, the Department appeared to backtrack. When asked, it refused to repeat her words and simply said:

“We will await the results before any burial arrangements are made.”

No one would want to accuse the Government of now U-turning on Richard III. Will you advise us, Mr Speaker, on whether the Under-Secretary has given notice of her intention to come to the House to clear up the confusion?

[Mr Speaker]

I am grateful to the hon. Gentleman for his point of order. In response, I make two points.

[Chris Bryant (Rhondda) (Lab)]

A hearse, a hearse, my kingdom for a hearse.

[Mr Speaker]

We are always obliged to the hon. Gentleman for chuntering from a sedentary position about hearses. I hope he will be good enough to allow me to intervene on him and respond to the point of order from the hon. Member for Leicester South (Jonathan Ashworth). First, I think that his late majesty has been dead for long enough to evade our normal rules on references to monarchs. Secondly, the hon. Gentleman has put the matter on the record and attempted to obtain clarification, which will have been heard on the Treasury Bench, but beyond that I am afraid that it is not a matter for the Chair.

[Mr Tom Harris (Glasgow South) (Lab)]

Further to a point of order that I raised in the House yesterday evening, Mr Speaker. Have you received any notification from the Minister of State, Department for Environment, Food and Rural Affairs, the hon. Member for Somerton and Frome (Mr Heath), that he intends to apologise to the House, or at least clarify the comments that he made yesterday in the First Delegated Legislation Committee about wild animals in circuses? He inadvertently—I am sure—misled the Committee by claiming that a full ban on wild animals in circuses had been part of Her Majesty’s Gracious Speech to this Parliament. That is not the case. Since the approval of that order is on today’s Order Paper and will have to be dealt with by the House, surely it would be appropriate for him to come to the House to apologise or clarify his comments.

[Mr Speaker]

The short answer to the first question in the hon. Gentleman’s attempted point of order is no. I have received no indication of the Minister’s intention to make a statement. The hon. Gentleman is a wily and experienced hand who has made his own point in his own way, but I know also that he would not seek to embroil me in his controversy with the Minister, for that would be unworthy conduct of which I feel sure he would never be guilty.

[Mr Andrew Smith (Oxford East) (Lab)]

On a point of order, Mr Speaker. You will be aware that the Government, uniquely, withdrew a statutory instrument on cuts to injuries compensation from a Committee and said that they would listen to the concerns on both sides of the House about the cuts. Are you aware that the statutory instrument is being brought back unchanged to a Committee this Thursday? Have you had any request from the Government for a Minister to make a statement to explain their abject failure to listen to Members and the public at large on this important issue?

[Mr Speaker]

I am grateful to the right hon. Gentleman for his point of order. Again, let me seek to engage with him directly. The answer is no, I was not aware that the statutory instrument was being brought back, as he puts it, unamended this Thursday. I am sorry if he feels that I have been inattentive in not being aware of that salient fact, but the truth is that I was not. More importantly, however, whatever he thinks about the matter, there is nothing disorderly about it. The matter can be debated in that Committee, and I have a hunch that it probably will be.

[Mr Smith]

indicated assent.

[Mr Speaker]

The right hon. Gentleman assures me from a sedentary position that it will be. We are grateful to him.

Bill Presented

Mental Health (Approval Functions)

Presentation and First Reading (Standing Order No. 57)

Mr Secretary Hunt, supported by the Prime Minister, the Deputy Prime Minister, Mr Secretary Hague, Mrs Secretary May, Secretary Chris Grayling and Norman Lamb, presented a Bill to authorise things done before the day on which this Act is passed in the purported exercise of functions relating to the approval of registered medical practitioners and clinicians under the Mental Health Act 1983.

Bill read the First time; to be read a Second time today, and to be printed (Bill 83) with explanatory notes (Bill 83-EN).

Protection of Workers

Tuesday 30th October 2012 Commons Chamber

Motion for leave to bring in a Bill (Standing Order No. 23)

[Mr Speaker]

We come now to the ten-minute rule motion. I call Mr Graeme Morrice.

[Grahame M. Morris (Easington) (Lab)]

rose—

[Mr Speaker]

Not that “Graeme Morrice”. We have heard several times from the hon. Gentleman today and are enriched by the experience, but on this occasion I have Mr Graeme Morrice from Livingston in mind.

13:11

[Graeme Morrice (Livingston) (Lab)]

I beg to move,

That leave be given to bring in a Bill to create a specific offence relating to assault on those whose work brings them into face-to-face contact with members of the public; and for connected purposes.

Anyone who assaults or abuses someone who is going about their work should face the full force of the law. I am pretty sure that there would be absolute unanimity on that point in the House, and I want to thank colleagues, including Government Members, who have supported early-day motion 574 on my Bill. However, far too often, assaults on workers, which most research indicates are increasing, still go unpunished. This Bill addresses the real day-to-day experience of verbal and physical assault, which is all too common to many thousands of public-facing workers across the UK. The Bill would build on the good work done on this issue in recent years, supporting victims and ensuring that those who break the law are held fully accountable for their actions.

Currently, the Emergency Workers (Obstruction) Act 2006 and the Emergency Workers (Scotland) Act 2005 give emergency services staff extra protection under the law. I understand and support the case that was made for giving extra protection to police officers, paramedics, firefighters and others in the emergency services, and I pay tribute to the trade unions and professional bodies that fought for that legislation. However, I believe there is a strong case for all public-facing workers to receive the same additional protection. Why should, for example, teachers, shop workers, health visitors, posties or bus drivers—all groups of staff who face high levels of verbal and physical abuse at work—not have the right to extra protection under the law? All these people and many more provide important services to the public, but are often in fear of being attacked or assaulted while at work. That is totally unacceptable and something that we should be constantly reviewing to ensure that everything possible is being done to reduce the potential for workers to come to harm simply for doing their job. The Bill will address the current differences in legal protection and give added penalties under the law to those convicted of assaulting a public-facing worker.

I believe that the Bill is necessary because of the increase in physical and verbal assaults on front-line public-facing workers in the UK. Research published by the British Retail Consortium in January this year highlighted the fact that in the past 12 months incidents of violence and verbal assault against retail staff had increased by 83% compared with the previous year. The survey highlighted the fact that 26 offences are committed per 1,000 employees. The charity Retail Trust has also published research, which indicated that 60% of those working in retail reported being treated aggressively at work. It also found that 56% of those affected had been the target of aggressive behaviour on more than three occasions in one year.

I am sure that each Member will be aware of examples of this type of crime from their own constituencies. One example recently brought to my attention that highlights the often premeditated nature of the violence perpetrated against staff is that of a shop worker in a busy city centre store who was working at the checkout. She had to tell off a customer for trying to push in at the front of the queue. The individual concerned was verbally abusive to the shop worker and other customers, but did leave the store. However, he then returned to the store in the evening, when it was much quieter, and assaulted the member of staff, hitting her over the head.

I am pleased that there is some emerging evidence to show that assaults on emergency service workers have declined since the introduction of emergency worker legislation across the UK. I hope and believe that the introduction of the Bill would have a similar impact on assaults against other groups of public-facing workers. The Bill would seek to create a specific offence relating to assault on people whose work brings them into face-to-face contact with members of the public. The Bill would provide for a new offence, with prosecution under summary procedure and a maximum sentence of 12 months and a £10,000 fine. The purpose of the new law is to provide additional protection to workers whose employment requires them to have at least some face-to-face contact with the public.

I believe that the proposed new law would be used in the following circumstances: when a worker has been assaulted in the course of his or her employment and the offender either knew or ought to have known that the worker was acting in the course of their employment—for example, a shop worker requiring proof of age to sell alcohol. The new law would also be used when a worker was assaulted by reason of his or her employment and the assault was at least partly motivated by malice towards the worker by reason of his or her employment—for example, someone spitting on a shop worker because they believe that they have been asked to wait too long before being served. The sentences would be the same as those for common-law assault, but there is an expectation that sentences handed out for the new statutory offence would exceed those imposed for common-law assault. The Bill would cover assaults on public-facing workers, including shop workers, public transport workers, local government staff, Royal Mail and Post Office counter staff, non-emergency health workers and so on. That is not an exhaustive list, and I would be keen to hear the opinions of others on the exact definition of the categories of staff that would be covered.

I would also like to note that my Labour colleague in the Scottish Parliament, Hugh Henry MSP, introduced a similar Bill at Holyrood in 2010. Unfortunately, the Scottish National party Government failed to support the progress of the Bill and voted it down at its first stage, leading the general secretary of the Union of Shop, Distributive and Allied Workers to comment that:

“Scotland’s shopworkers have been very badly let down by the SNP.”

The SNP Government have also stopped recording this type of offence in the annual Scottish crime survey, which is another lamentable decision. I hope that the SNP Members of this House have had time to think about that decision and will support this measure to increase protection for workers.

Before drawing to a conclusion, I would like to commend the shop workers union USDAW for its tremendous work on the issue of violence against workers and, specifically, on promoting the Bill. The union’s “Freedom from fear” campaign, which it has been running for the last 10 years, has been a huge success and has played an important part in raising awareness of the issue. We welcome the fact that progress has been made, but USDAW is the first to acknowledge that the same issues still persist. That is why the union has been instrumental in campaigning for this legislation. USDAW and the other unions that represent public-facing workers will be important partners in taking the Bill forward, but I shall also seek to work with employer and business organisations and those representing the retail sector, as well as with major retailers and large charities with front-line staff, to progress the Bill.

The Bill would impact on the lives of the hundreds of thousands of public-facing workers who face verbal and physical assault at work each year. It would help to ensure that the public looked at those groups of workers differently and that those who failed to treat them with the appropriate respect were properly punished. I very much hope to have the opportunity to progress the Bill, and I look forward to the whole House supporting it.

Question put and agreed to.

Ordered,

That Graeme Morrice, Michael Connarty, Mr David Hamilton, Grahame M. Morris, Ian Lavery, Ian Mearns, Mr David Crausby, Jim Sheridan, Mr Michael McCann, Alex Cunningham, Steve Rotheram and Lindsay Roy present the Bill.

Graeme Morrice accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 1 February 2013, and to be printed (Bill 84).

[Mr Tom Harris (Glasgow South) (Lab)]

On a point of order, Mr Speaker. I do not want to try your patience, but I wonder whether you could offer me some advice on the circumstances in which a Minister has made not only a contentious statement but a statement that can be proved absolutely untrue. Taking a random example plucked from the air, a Minister might have said that the Queen’s Speech contained a specific measure, yet it turned out that that measure did not exist. Can you confirm that it would be entirely up to the Minister concerned to take responsibility for correcting the public record?

[Mr Speaker]

It is up to the Minister concerned to take responsibility for correcting the record. I hope that that is helpful to the hon. Gentleman.

Mental Health (Approval Functions) Bill (Allocation of Time)

Tuesday 30th October 2012 Commons Chamber

Ordered,

That the following provisions shall apply to the proceedings on the Mental Health (Approval Functions) Bill:

Timetable

1. (1) Proceedings on Second Reading, in Committee, on Consideration and on Third Reading shall be completed at this day’s sitting.

(2) Proceedings on Second Reading (so far as not previously concluded) shall be brought to a conclusion four hours after the commencement of proceedings on this Motion.

(3) Proceedings in Committee, on Consideration and on Third Reading shall be brought to a conclusion (so far as not previously concluded) at the moment of interruption.

Timing of proceedings and Questions to be put

2. (1) Notices of Amendments, new Clauses and new Schedules to be moved in Committee may be accepted by the Clerks at the Table before the Bill has been read a second time.

(2) As soon as the proceedings on this Motion have been concluded, the Order for the Second Reading of the Bill shall be read.

(3) When the Bill has been read a second time—

(a) notwithstanding Standing Order No. 63 (Committal of Bills not subject to a programme order) it shall stand committed to a Committee of the whole House without any Question being put; and

(b) the Speaker shall leave the Chair whether or not notice of an Instruction has been given.

3. (1) On the conclusion of proceedings in Committee, the Chairman shall report the Bill to the House without putting any Question.

(2) If the Bill is reported with amendments, the House shall proceed to consider the Bill as amended without any Question being put.

4. For the purpose of bringing any proceedings to a conclusion in accordance with paragraph 1, the Chairman or Speaker shall forthwith put the following Questions (but no others) in the same order as they would fall to be put if this Order did not apply—

(a) any Question already proposed from the Chair;

(b) any Question necessary to bring to a decision a Question so proposed;

(c) the Question on any amendment moved or Motion made by a Minister of the Crown;

(d) any other Question necessary for the disposal of the business to be concluded.

5. On a Motion so made for a new Clause or a new Schedule, the Chairman or Speaker shall put only the Question that the Clause or Schedule be added to the Bill.

Sitting on Wednesday 31 October

6. At the sitting on Wednesday 31 October, the House shall not adjourn until—

(a) any Message from the Lords has been received and any Committee to draw up Reasons which has been appointed at that sitting has reported, and

(b) the Speaker has reported the Royal Assent to any Act agreed upon by both Houses.

Consideration of Lords Amendments

7. (1) Any Lords Amendments to the Bill shall be considered forthwith without any Question being put; and any proceedings interrupted for that purpose shall be suspended accordingly.

(2) Proceedings on consideration of Lords Amendments (so far as not previously concluded) shall be brought to a conclusion one hour after their commencement; and any proceedings suspended under paragraph 7(1) shall thereupon be resumed.

8. (1) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph 7.

(2) The Speaker shall first put forthwith any Question already proposed from the Chair and not yet decided.

(3) If that Question is for the amendment of a Lords Amendment the Speaker shall then put forthwith—

(a) a single Question on any further Amendments to the Lords Amendment moved by a Minister of the Crown, and

(b) the Question on any Motion made by a Minister of the crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.

(4) The Speaker shall then put forthwith—

(a) a single Question on any Amendments moved by a Minister of the Crown to a Lords Amendment, and

(b) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.

(5) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown that this House disagrees to a Lords Amendment.

(6) The Speaker shall then put forthwith the Question that this House agrees to all the remaining Lords Amendments.

(7) As soon as the House has—

(a) agreed or disagreed to a Lords Amendment; or

(b) disposed of an Amendment relevant to a Lords Amendment which has been disagreed to, the Speaker shall put forthwith a single Question on any Amendments moved by a Minister of the Crown and relevant to the Lords Amendment.

Subsequent stages

9. (1) Any further Message from the Lords on the Bill shall be considered forthwith without any Question being put; and any proceedings interrupted for that purpose shall be suspended accordingly.

(2) Proceedings on any further Message from the Lords (so far as not previously concluded) shall be brought to a conclusion one hour after their commencement; and any proceedings suspended under paragraph 9(1) shall thereupon be resumed.

10. (1) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph 9.

(2) The Speaker shall first put forthwith any Question which has been proposed from the Chair and not yet decided.

(3) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown which is related to the Question already proposed from the Chair.

(4) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown on or relevant to any of the remaining items in the Lords Message.

(5) The Speaker shall then put forthwith the Question that this House agrees with the Lords in all the remaining Lords Proposals.

Reasons Committee

11. (1) The Speaker shall put forthwith the Question on any Motion made by a Minister of the Crown for the appointment, nomination and quorum of a Committee to draw up Reasons and the appointment of its Chair.

(2) A Committee appointed to draw up Reasons shall report before the conclusion of the sitting at which it is appointed.

(3) Proceedings in the Committee shall (so far as not previously concluded) be brought to a conclusion 30 minutes after their commencement.

(4) For the purpose of bringing any proceedings to a conclusion in accordance with paragraph 11(3), the Chair shall—

(a) first put forthwith any Question which has been proposed from the Chair but not yet decided, and

(b) then put forthwith successively Questions on motions which may be made by a Minister of the Crown for assigning a Reason for disagreeing with the Lords in any of their Amendments.

(5) The proceedings of the Committee shall be reported without any further Question being put.

Miscellaneous

12. Standing Order No. 15(1) (Exempted business) shall apply so far as necessary for the purposes of this Order.

13. (1) The proceedings on any Motion made by a Minister of the Crown for varying or supplementing the provisions of this Order shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.

(2) Standing Order No. 15(1) (Exempted business) shall apply to those proceedings.

14. Standing Order No. 82 (Business Committee) shall not apply in relation to any proceedings to which this Order applies.

15. (1) No Motion shall be made, except by a Minister of the Crown, to alter the order in which any proceedings on the Bill are taken or to re-commit the Bill.

(2) The Question on any such Motion shall be put forthwith.

16. (1) No dilatory Motion shall be made in relation to proceedings to which this Order applies except by a Minister of the Crown.

(2) The Question on any such Motion shall be put forthwith.

17. (1) This paragraph applies if—

(a) a Motion for the Adjournment of the House under Standing Order No. 24 (Emergency debates) has been stood over to 7.00 pm, 4.00 pm or 3.00 pm (as the case may be), but

(b) proceedings to which this Order applies have begun before then.

(2) Proceedings on that Motion shall stand postponed until the conclusion of those proceedings.

18. (1) This paragraph applies if the House is adjourned, or the sitting is suspended, before the conclusion of any proceedings to which this Order applies.

(2) No notice shall be required of a Motion made at the next sitting by a Minister of the Crown for varying or supplementing the provisions of this Order.

19. Proceedings to which this Order applies shall not be interrupted under any Standing Order relating to the sittings of the House.—(Norman Lamb.)

Mental Health (Approval Functions) Bill

Tuesday 30th October 2012 Commons Chamber

Second Reading

13:23

[The Minister of State, Department of Health (Norman Lamb)]

I beg to move, That the Bill be now read a Second time.

The purpose of the Bill is simple, but urgent. The Secretary of State described to the House yesterday how the need for it arose and came to light, and I hope that hon. Members will bear with me if some of what I say today repeats what he said then. May I begin by reiterating my gratitude to Opposition Members for the highly constructive approach that they are taking to the issue, without which we would not be able to respond with the necessary speed?

Detaining a mentally ill person in hospital and treating them against their will is clearly a matter of the utmost seriousness, and it is treated as such by the law and by health and social care practitioners. The statutory framework is contained in the Mental Health Act 1983, which sets out that, for assessments and decisions under certain sections of the Act, including detention decisions under sections 2 and 3, three professionals are required to be involved: two doctors and an approved mental health professional, usually a social worker. One of the two doctors must be approved under section 12 of the Act. When strategic health authorities came into being in 2002, the Secretary of State at the time quite properly and lawfully delegated to them his function under the 1983 Act of approving the doctors able to be involved in making these decisions.

Early last week, the Department of Health learned that, in four out of the 10 SHAs—North East, Yorkshire and the Humber, West Midlands and East Midlands—the authorisation of doctors’ approval was further delegated by the SHAs to NHS mental health trusts over a period extending, in some cases, from 2002 to the present day. The issue was identified as a result of a single doctor querying an approval panel’s processes. I was informed later in the week, as soon as the extent of the issue became clear, and since then, the Secretary of State and I have been kept informed of, and involved in, the action being taken.

[Emma Reynolds (Wolverhampton North East) (Lab)]

This is an issue of great concern. Can the Minister reassure the House that the four areas that he has identified are the only areas in which this has happened, and that it has not taken place in other regions?

[Norman Lamb]

I can assure the hon. Lady on that point. All SHAs have undertaken an assessment of the position, and the position has been regularised for future cases in those four SHAs. Of course, individual patients may be moved to different parts of the country, but the problem relates to those four SHA areas.

[Hywel Williams (Arfon) (PC)]

Rampton and Ashworth are involved, and patients from Wales travel to those hospitals. Have there been any discussions between the Minister’s Department and the Wales Office or the Welsh Government on the implications of this for patients from Wales?

[Norman Lamb]

Yes, I can confirm that that is the case. The Secretary of State spoke to the relevant Health Ministers this morning. I hope that that gives the hon. Gentleman reassurance.

[Jim Shannon (Strangford) (DUP)]

Following on from what the hon. Member for Arfon (Hywel Williams) has asked, may I ask the Minister, in relation to Northern Ireland, what investigations have taken place to ensure that no one was detained illegally, and whether there are likely to be challenges from people who have been sectioned? I am afraid that they might have reason to claim against the Government for that purpose, given that no legislation was in place. Please excuse the condition of my voice, by the way.

[Norman Lamb]

I am grateful to the hon. Gentleman for that intervention, but I am afraid that I struggled slightly to hear all the points that he was making. Perhaps the best way of dealing with all this is to ensure that I respond in writing to all his questions. I can also assure him that the Secretary of State spoke to the Northern Irish Minister yesterday and briefed them fully on the situation. There is good liaison there.

Our current assessment is that about 2,000 doctors were not approved properly in line with the provisions of the 1983 Act, and that those doctors have participated in the detention of between 4,000 and 5,000 of the patients currently detained in NHS or independent sector hospitals. There are two important points that I would like to make clear now. First, the decision to detain a patient under the Mental Health Act is primarily a clinical one. There is no suggestion, and no reason to believe, that the irregularity of the approval process for these doctors has resulted in any clinically inappropriate decision being made, whether the decision was to detain or not to detain. Nor is there any suggestion that the doctors approved by mental health trusts are anything other than entirely properly qualified to make these recommendations.

All the proper clinical processes were gone through when these patients were detained. There is no reason why the irregular approval process should have led to anyone being in hospital who should not be—or vice versa—and no patients have suffered because of this. The doctors had no reason to think that they had not been properly approved; they acted in total good faith and in the interests of the patients throughout this period. As of Friday last week, the SHAs concerned had corrected their procedures and all the doctors involved had been properly approved. I hope that that addresses the question raised by the hon. Member for Wolverhampton North East (Emma Reynolds).

[Hywel Williams]

This may be a naïve question, but will the Minister tell us whether doctors approved in one SHA area are then approved automatically for other parts of England or possibly parts of Wales, or is the approval confined to the particular SHA area?

[Norman Lamb]

My understanding is that people are approved for the SHA in which they work, but it is an important question and I will happily confirm the position to the hon. Gentleman in writing.

In the light of our legal advice, we do not believe that any decisions made about patients’ care and detention require review because of this irregularity. Doctors should continue to treat patients who are currently detained under the Mental Health Act in the usual way.

My second point is that we have been advised by First Treasury Counsel that there are good arguments to show that the detentions involving these particular approval processes were, and are, lawful. Given the seriousness of the issues, counsel also argues the need for absolute legal clarity and advises that this is most safely resolved through emergency retrospective legislation. We are taking that advice. As soon as the irregularity was identified, the Department moved swiftly to identify the best course of action and to put the necessary preparatory work in place. Officials immediately sought initial legal and clinical advice, and then swiftly analysed the options, including the reassessment of all the potentially affected patients, working with the health leads in the regions involved and clinical experts from the Royal College of Psychiatrists.

When I was briefed on the situation, I asked for detailed information on the time it would take—the Secretary of State has also sought and obtained this advice—and the clinical risks involved in reassessing all potentially affected patients. Last Friday, the Secretary of State asked for an emergency Bill to be drafted over the weekend as a matter of contingency, and he briefed the Prime Minister personally the following day. Following further discussions and analysis over the weekend, the decision to introduce emergency legislation was taken on Sunday.

At all times, the Secretary of State’s priority—and, indeed, mine too—has been to resolve this in a way that follows clinical advice. That is the most important thing. In the interests of a group of highly vulnerable individuals, it is important to do this in the most sensitive way. It would not have been feasible quickly to reassess all the patients and it may well have caused great distress to them and their families.

We have worked to remedy the problem as it relates to current and future detentions. The accountable officers for the four SHAs in question have written to Sir David Nicholson, chief executive of the NHS, to confirm that they have made the necessary changes to their governance arrangements. Furthermore, the accountable officers in the other six SHA areas have written to Sir David to confirm, in the light of this issue, that they have reviewed their own arrangements and are in full compliance with the Mental Health Act. That directly addresses the question asked by the hon. Member for Wolverhampton North East. I can confirm, incidentally, that approval in one SHA applies elsewhere in England. The Bill will put right those doctors’ approvals wherever they are now practising. That again gives complete clarity to that particular point.

Although we believe that there are good arguments that past detentions under the Mental Health Act were and are lawful, it is vital that doctors, other mental health professionals and, most importantly, patients and their families have absolute confidence in the decisions made. That is why, in relation to past detentions, we have decided that the irregularity should be corrected by the Bill.

[Mr Andrew Smith (Oxford East) (Lab)]

On this serious matter, will the Minister give a fuller explanation of why, given that the proper procedure was not followed, making it irregular, it is none the less his advice that it remained lawful?

[Norman Lamb]

I cannot provide full detail, but I can repeat that the legal advice received by the Department was that there are good reasons to believe that the detentions are, and remain, lawful. Absolute certainty is essential in the interests of the patients concerned, whose care is paramount, and indeed of their families. That is why it is so important to proceed straight away with this retrospective legislation.

Although we are only aware of the problem in the four areas going back to 2002, the Bill applies in principle to the approval of all doctors under the Mental Health Act since its introduction in 1983. It retrospectively validates the approval of clinicians by those organisations to which responsibility was delegated, up to the point when all the relevant doctors were fully re-approved and their status put beyond doubt. The Bill will not deprive anyone—this is a really important point—of any of their normal rights of redress if they have been detained for any reason other than the narrow issue of the delegation of authority to approve by the SHAs. All the other rights remain exactly as they are. The provision addresses only the narrow issue of the nature of the authorisation. Nor will it affect any future detentions or legitimise any similar failures in the future—again, an incredibly important issue.

Necessary as it is to address the issue in that way, it is also important that we get to the bottom of how this happened. The Secretary of State has asked Dr Geoffrey Harris, chair of NHS South and former chair of the Buckinghamshire mental health trust, to undertake an independent review to look at how the responsibility was delegated by the four SHAs and, more broadly, the governance and assurance processes that all SHAs use for delegating any responsibilities. The Secretary of State will ask him to look at that in the context of the new NHS structures that come into force from next April to see whether any lessons need to be learned.

It is imperative that that review is swift. The Secretary of State has asked Dr Harris to report to him by the end of the year with recommendations to ensure that every part of the system employs the highest standards of assurance and oversight in the delegation of any functions.

In conclusion, I stress that both the Secretary of State and I have reviewed thoroughly with lawyers, clinicians and NHS managers all possible alternatives to introducing this retrospective legislation. The Secretary of State has been advised that all alternatives would be highly disruptive to the welfare of many of the most vulnerable patients in the mental health system, and would also deprive many other patients—another critical point—of the care they need while any action is undertaken. That is why, in such exceptional circumstances, we are proposing this retrospective legislation.

13:38

[Andy Burnham (Leigh) (Lab)]

Detaining people under the Mental Health Act raises fundamental questions of individual liberty and public safety, requiring the most careful consideration. I am sure that there is general agreement across the House that the circumstances in which we find ourselves today are far from ideal. Members on all sides will want to use the time we have to satisfy themselves that the measures that the Government are asking the House to approve today are justified.

Emergency legislation tends to be forward looking in its scope, so the retrospective nature of the Bill before us is unusual and potentially troubling for Members. As I said yesterday, we will need to be sure that this is the only real course of action available and that it is not setting a precedent whereby emergency legislation can be used as a convenient means of correcting administrative failings, which could in itself breed a culture of complacency in public administration.

In asking those legitimate questions, however, we must have at the forefront of our minds the simple fact that the uncertainty which has arisen in the past week affects thousands of highly vulnerable people and their families, as well as having serious implications for patients and public safety. If we leave that uncertainty hanging, it will have the potential to cause real harm to the individuals concerned, and to damage public trust in our systems of individual and public protection.

The Secretary of State was right to act quickly, and to come to the House yesterday to make his exceptional and urgent request for legislation. I am surprised that he did not make the case for that legislation to the House in person today, but the Opposition have nevertheless concluded that, on balance, the public interest is best served by our supporting the Government in the swift action that they propose, and we will ensure as far as possible that that pragmatic approach is reflected in the other place.

In reaching our judgment, I think we can take some comfort from the fact that the main mental health organisations, as well as the Royal College of Psychiatrists, are, for now, supporting the Government’s course. However, concerns and questions have already been raised today—not least by my right hon. Friend the Member for Oxford East (Mr Smith)—which have not been fully answered. I must say to the Government that it is vital for the fullest possible answers to be given to the House today before any approval is given to this exceptional retrospective measure. I shall be seeking answers not just to the questions that I am about to ask, but to questions that the Secretary of State did not answer yesterday. There are matters of detail here, but matters of principle also arise, and I want to cover both in my speech.

[The Secretary of State for Health (Mr Jeremy Hunt)]

May I clarify something? I had intended to make the Second Reading speech earlier, but I will be winding up the debate, and during that speech I shall seek to address any points raised by the right hon. Gentleman—and, indeed, any outstanding points raised by other Members.

[Andy Burnham]

I thank the Secretary of State for his intervention. We understand that these are urgent matters, and I am sure that he is receiving briefings from the Department, but I think that there is a sense among Opposition Members that that is not good enough, and that he should have been here to answer the questions that were asked. We appreciate that he will be winding up the debate, but I hope he will take careful note of all the questions that are asked, and will give every Member present the fullest possible answer.

First things first: let us begin with the detail. I think it would help the House to know more about the extent of the checks that have been carried out on the 4,000 to 5,000 cases involved. The very fact that the number remains vague suggests that there has not yet been a thorough case-by-case review. Does the Minister—or, indeed, the Secretary of State—agree that it is essential to conduct such a review, and to put a precise number on the extent of the problem? I asked yesterday whether the Department could tell us how many of the people concerned were in high-security hospitals. I think that that is an important aspect of the issue, and I should be grateful if the information could be given to us at some point this afternoon. Without detailed case-by-case checks, how can we be sure that this procedural defect was the only technical irregularity in the process that was operating in the four SHAs concerned? We need to be reassured that there are no further problems that will need to be corrected at a later date.

That brings me to another question that was not answered yesterday. Families of the people involved will have heard yesterday’s news, and will no doubt have been unsettled by it. Does the Secretary of State agree that it is important for the Government to make arrangements, urgently, for direct communication to take place with the families who have been directly affected so that the issue can be explained to them more fully, and in isolation from some media coverage that may not give them the reassurance and support that they seek? Have such arrangements been made, and has any facility been provided enabling questions to be answered so that people can be given that reassurance and support?

That, in turn, brings me to another important point. If the Government were to leave a vacuum in terms of advice and communication, it could of course be filled by less scrupulous elements of the legal profession seeking to initiate compensation claims. We have already read warnings today that efforts may be made to encourage patients to sue for £500 or £600 a day, the amount that a prisoner would receive in compensation for unlawful detention. I am sure the Secretary of State agrees that any such activities would be highly unsettling, and would amount to the potential exploitation of vulnerable people. I hope he will join me in sending the clearest of messages to the legal profession that that would not be at all welcome. On the other hand, we would not want to see any curtailment of individuals’ legitimate right to challenge the decisions made affecting their liberty as a result of the Bill.

[Hywel Williams]

I am glad that the right hon. Gentleman has made that second point. The fact that some people are litigious, possibly as a result of their condition—of which that is a notorious aspect—should not detract from their right to pursue a case if they wish to do so.

[Andy Burnham]

That is a good point. So many cases are involved that challenges may have already been in progress before this technical problem arose. There may have been complaints about the nature of the decision-making process, the number of professionals involved, or any matter relating to the process by which the decision was made.

I hope that it will reassure the hon. Gentleman to learn that I have been given access to Government lawyers—the Secretary of State promised that yesterday, and I am grateful to him for arranging it—and I have been assured that the Bill will not wipe away an individual’s right to issue a legal challenge on a different point of process. That is a fundamentally important point, and I am glad that the hon. Gentleman has given me an opportunity to put it on the record. We would certainly not support the Bill if it were intended to wipe away an individual’s rights retrospectively, and I am sure that the hon. Gentleman would not either. We are grateful for that reassurance from the Government.

Along with the urgent steps that are being taken to correct the legal position, we need a review of how this came about in the first place. If it had happened in a single SHA, the explanation might have been easier to ascertain and understand, but the fact that it happened in four SHAs points to a more widespread issue of concern. It raises the question whether the problem arose from historical practice among clinicians and NHS bodies in the four regions concerned, or whether a piece of Department of Health guidance that was circulated in the past may have been responsible. I hope that the Minister or the Secretary of State will be able to enlighten the House further.

We want the Harris review—which I support—to cover all the technical issues surrounding mental health, so that the House and the public can be absolutely certain that no other technical failures or breaches of regulation have been identified. Let me make two appeals to the Secretary of State. First, I ask him to consider widening the remit of the review, and ensuring that in future it can take the broadest possible view of arrangements for sections under the Mental Health Act 1983. Secondly, I ask for the review to be conducted as swiftly as possible, so that it can inform the current reorganisation of the NHS.

It seems to me that the crux of the issue is the interrelationship between the 1983 Act and the potential for reorganisations of the NHS to disturb important existing arrangements and procedures for the carrying out of these essential public functions. That is the crux of the matter. I accept that a problem may have arisen as a result of the introduction of SHAs and PCTs in 2003, and we will have to wait and see whether that was the case. Regardless of the answer to that, however, the Government still have to face a relevant and current issue: they have to be absolutely sure that the changes they are proposing—and which the Opposition continue to believe are unnecessary and highly disruptive to an NHS that is functioning well for the vast majority of people—will not run the risk of causing further confusion.

We have not had anywhere near enough clarity from the Secretary of State—or his predecessor, the right hon. Member for South Cambridgeshire (Mr Lansley), who has just left the Chamber—on how some of the essential functions of NHS bodies to do with safeguarding and public protection are to be handled in the new NHS structure. Many months have passed since the publication of the Government’s first White Paper, yet there are still doubts in the minds of clinicians and others practitioners on the ground. That is an indictment, and shows the confusion the reorganisation has created. We are seeing the emergence of myriad new bodies in the NHS whose functions are not yet fully understood or specified by the Government. This crowded landscape has the potential to cause for further uncertainty. I therefore today ask for more clarity on this matter.

As things currently stand, what will the NHS arrangements be for sectioning people under the mental health provisions to be introduced from April 2013? I do not yet know with confidence what those arrangements are, and if I do not know there is a good chance that the wider public and many people working in the NHS have no idea. The Government need to answer these questions.

There is a further specific question the Department needs to answer, and it goes to the heart of the issues under discussion. I am sure I heard the Secretary of State say yesterday that the secondary approval function that SHAs are meant to carry out will come back to the Department of Health following the Government’s current reorganisation of the NHS.

[Mr Jeremy Hunt]

indicated assent.

[Andy Burnham]

The Secretary of State is nodding from a sedentary position, so I assume that is correct. Surely, therefore, a concern arises that the SHA part of the process is no more than a rubber-stamping exercise. The Department will be entirely remote from the local situation on the ground relating to the individuals involved and the clinicians and institutions making the judgments. If this process is taken up to the national level, will that not give rise to more concerns that mistakes might be made in the future, because of the distance between the process of approval and the individual cases on the ground? Has the Secretary of State had discussions with mental health organisations about whether they believe those arrangements are acceptable? I must say that I have serious concerns about them.

[Mr Andrew Smith]

That is a very important point. Following the logic of my right hon. Friend’s argument, does he agree that the Government would be well advised to ensure there is independent professional involvement in auditing and overseeing that process?

[Andy Burnham]

That is a tremendously important point. Over the years, in terms of crucial public functions such as those we are discussing—and, indeed, in wider considerations such as assessments of new treatments with the National Institute for Health and Clinical Excellence—there has been a trend towards independent decision making, so that people can feel that there is no political, or departmental, interference, such as through changing local resource decisions.

The taking of these powers, and the rubber-stamping of approvals to section people, up to the national level will give rise to concerns about whether the process is sufficiently independent and people’s rights are being properly considered. I hope Ministers have listened to the important point my right hon. Friend the Member for Oxford East has just made.

I will end by addressing a point of wider principle about mental health policy and the place of mental health within our society. I believe it is possible that this whole unfortunate episode is symptomatic of a wider cultural problem: that mental health simply does not get sufficient focus and resources in the NHS at both the local PCT level and the regional SHA level—and, indeed, within the Department of Health. Beyond that, I do not believe that mental health gets the consideration it needs in Government or in this place. We do not give sufficient consideration to the hugely important issues relating to mental health.

When I was Health Secretary, hundreds of submissions would come across my desk in the course of an average week, and it was unusual if just one of them related to mental health. It is very much seen as a fringe consideration, pushed to the edges of the system—a peripheral concern in PCTs and SHAs, and all the way up to the Department of Health. That situation must not be allowed to continue.

The culture of separateness in the way we consider mental health, as opposed to other NHS issues, has deep roots in our society. Mental health services have often been provided in buildings that are out of sight, out of mind and on the fringes of the mainstream health care system.

That has to change. In the 21st century, we demand it. In our lives, we are all now dealing with much greater levels of stress, change and upheaval, and sometimes we are all left reeling by the sheer pace of modern life. We are discussing today between 4,000 and 5,000 very vulnerable people as though they are somehow apart from the rest of us. They are not. Any family can suffer the terrible consequences of serious mental health issues. In such circumstances, we would all want to be assured that those affected are not forgotten and pushed to the fringes where proper procedures are not carried out because there is a somewhat out-of-sight, out-of-mind approach. These issues are central concerns because they go to the heart of 21st century living.

Mental health must no longer be left at the edges of our national debate about health and care policy. It has to come to the very centre of our health care system. The Health and Social Care Act 2012 includes one good measure at least: to create parity of esteem between physical and mental health. I must say that it was a Labour amendment in another place that introduced that improvement into the Act, but, to be fair to the Government, I should add that I am pleased that they accepted it.

Will the Secretary of State explain what parity of esteem means in practice? What action has the Department thus far taken to put parity of esteem into effect in the national health service, and what plans does it have for the future? We have learnt in recent days that the budget for mental health has been cut in the last financial year, which suggests to me that the NHS is reverting to its default position in tough times.

[Mr Jim Cunningham (Coventry South) (Lab)]

Does my right hon. Friend agree that role models in society could do a lot more to help to improve cultural attitudes to mental health issues?

[Andy Burnham]

My hon. Friend makes a very important point, and we have the seen the beginning of the kind of campaign he advocates with the work of the Time to Change group. There has also been incredible bravery from individuals such as the cricketer Marcus Trescothick, who spoke out very publicly about the difficulties he had faced, and just a few weeks ago in this House we witnessed some incredibly powerful contributions from Members on both sides of the Chamber: for the first time Members spoke personally and publicly about the difficulties they faced.

I think a change is under way, therefore. People who have been suffering alone will take great heart and encouragement from these developments. We are beginning to challenge the last taboo—the last form of acceptable discrimination in our society—but that does not come a moment too soon. My feeling is that Parliament is finally waking up to the full scale of the mental health challenge we face. A Bill before us at the moment will outlaw the discrimination that exists whereby somebody who has suffered a serious mental breakdown is unable to be a Member of Parliament, a company director, a juror or a school governor. It is so important to remove that discrimination from the statute book because it sends a message that recovery is not possible, and that if someone has a serious mental breakdown there is no possibility of their coming back and playing a full part in our society. The further problem with that legislation is that it prevents those people from being in leadership positions in those organisations—in schools, in Parliament and in companies—where they could develop a better understanding of mental health and what policies need to be put in place to support people who may experience those problems.

[Hywel Williams]

Does the right hon. Gentleman share my concern, and that of organisations such as Mind, that the rate of compulsory detention seems to be growing, as does the rate of detention in police cells?

[Andy Burnham]

We need to look carefully at those trends. I remember the moment when my thinking about mental health changed. It came when I was Secretary of State for Health and I received the Bradley report on mental ill health in the criminal justice system. I recall the moment when I read the statistic that seven out of 10 young people in the system have some form of undiagnosed or untreated mental health problem. My jaw dropped and at that moment I realised that we were seriously failing many thousands of people by failing to give them the support they needed when they needed it, and so they went into detention and down a path of failing to fulfil their potential. That is a terrible indictment of our life today. In addition, the level of prescribing of anti-depressants has almost doubled over the past decade. We are issuing almost 40 million prescriptions for anti-depressants, which suggests to me that insufficient alternatives to medication are available in our communities and people are being given very old-fashioned, outdated interventions by the authorities which are not meeting their needs. That is why we cannot allow this complacency any more and why we need a modern approach to good mental health care.

[Mr Dave Watts (St Helens North) (Lab)]

My right hon. Friend is absolutely right when he says that mental health has been the poor relation of the health service, but does he agree that, within that mental health service, children’s mental health services have often been the poor relation again? Does he hope that the Government will address specific services for children who need mental health services?

[Madam Deputy Speaker (Dawn Primarolo)]

Order. As important as the debate is, the wider considerations of mental health and its treatment are not actually the subject for today—that is the Bill before us. So in rising to answer his hon. Friend’s problem, I am sure that the shadow Secretary of State will come back to the specifics of the Bill.

[Andy Burnham]

I will indeed, Madam Deputy Speaker. This is a Second Reading debate, so I was just taking a moment to speak more widely. However, I believe that this comes back to the central point I made: the reason why this situation has arisen and why it was undetected for so long—10 years—in the Department was because of this culture of failing to put sufficient focus on and give attention to mental health. The issue is still on the fringes of our system. My hon. Friend makes an incredibly important point. We hear that not only is the budget for adult mental health being cut, but the budget for children’s mental health is being cut even further. That brings me back to another point I was making: in tough times the NHS reverts to its default position, which is to focus on the mainstream and to ignore mental health. That is a worrying sign, so we press the Government to say what parity of esteem means in practice. What actions are the Government taking to change this culture to ensure that the resources and the focus are in place?

In conclusion, although the Opposition will give the Government the co-operation they need to get this measure through the House today, I say again that we need to have full answers to all the concerns I have outlined. That is the least the Government owe Opposition Members. One of the good things that we hope may come from this unfortunate episode is that it may jolt us out of our complacency on mental health, and that Parliament will begin truly to work for more parity of esteem between physical and mental health and ensure that finally mental health gets the resources and the focus it desperately needs.

14:04

[John Pugh (Southport) (LD)]

Yesterday I expressed bewilderment about how we have ended up in this situation, given the high profile given in this place to the issue of legal detention, particularly during the passage of the Mental Health Act 2007, on whose Bill Committee I served. Yesterday, the hon. Member for Broxbourne (Mr Walker) said that this issue has not been taken seriously during the past decade, but it has been in the House of Commons—it has been taken very seriously and has been debated at extraordinary length. I now see the Government’s problems over the issue and recognise the gravity of the situation. I understand the need for a rapid solution and the absence of any real viable alternative. However, I am not yet convinced that this retrospective legislation offers an unproblematic or wholly sufficient solution.

Let me explain why that is and underline my concerns. Let us suppose this were not an issue of mental health, and somebody was judicially processed and forcibly detained via a flawed process. Let us suppose that they were arrested by an officer who was competent but not properly authorised to arrest or that such a person were sentenced by a judge who was skilled but not properly appointed. Irrespective of the person’s actual guilt or the reasonableness of the evidence, they would be released, after an application had been made, on a technicality. That is how the law would work for those who do not have mental health issues to address. If we apply different principles for those who have mental health issues, we discriminate, and it could be argued that we might be doing so unfairly. Ironically, this week, we are beginning the Committee stage of a Bill to outlaw unfair discrimination.

If we add to that the fact that the job of determining who assesses cases was delegated to organisations such as care trusts, which are also providers of patient care and are paid for providing it, we see a legal challenge under human rights law starting to take shape. Mersey Care NHS Trust owns and runs Ashworth, and although I do not think it is one of the offending trusts in this case, it would have been a relevant example here. A consoling thought—the consoling thought—is that we believe that no one has been improperly detained or is being improperly detained, and nothing would have changed if authorisation had been done differently. However, it is not possible to be sure about that.

These cases are often genuinely difficult. I have met psychopaths who appear, on the surface of it and when encountered, to be very normal. Equally, when anyone is incarcerated it can be difficult to prove their normality. A classic pseudo-patient experiment was carried out by David Rosenhan in 1973, when mentally well researchers were admitted to an institution under false diagnoses in order to observe life and treatment there, and to conduct research. At the end of each day they wrote down their observations, and the nurses retired to their rooms and wrote down in their case notes, “Patients exhibit strange writing behaviour”. If this place was assumed to be an asylum, I often wonder what exactly would disabuse people of that perception.

Closer to home, I conducted an evening class many years ago at Park Lane hospital, which was the predecessor institution of Ashworth hospital. I encountered there a very articulate and seemingly responsible young man who appeared ready for discharge. Years later, I saw the same individual on a TV programme about Park Lane hospital applying for a discharge, arguing on camera with his psychiatrist for release and asserting his sanity. His willingness to argue and his insistence was taken by the psychiatrist as an indication of his lack of insight. Until he agreed with his psychiatrist that he was still sick he would get no joy—that is a kind of inverse Catch-22. There are those with less cause who genuinely think that they should not be detained, and they have lawyers and access to the courts. They will contest this legislation and we cannot be entirely sure what the result will be, especially as we are forced in this case to act in haste.

We have to go ahead with the measure, but it may not be sufficient for our purposes. We may have to consider judicially reviewing all flawed cases to ensure that there is a sustainable basis for continued detention. I would genuinely prefer to believe that in this case I am wrong.

14:10

[Mr Andrew Smith (Oxford East) (Lab)]

Like the hon. Member for Southport (John Pugh) and my right hon. Friend the Member for Leigh (Andy Burnham), I see no alternative but to proceed with the Bill, but I too have concerns.

Clause 1(1) states:

“Any person who before the day on which this Act is passed has done anything in the purported exercise of an approval function is to be treated for all purposes as having had the power to do so.”

The clause then defines the approved function in relation to the Mental Health Act 1983, but will the Secretary of State tell us why the concept of “any person” needs to be so broad for the Bill? It could be taken to legitimise approval by anybody. Should it not have been limited to the four trusts in question, if that is the problem the House is addressing—as it is—rather than being so sweeping?

My next question relates to my intervention earlier, when we were assured that there were good legal reasons to suppose that while the procedures that had been followed were irregular and not in conformity with the legislation, they were none the less lawful. The Secretary of State owes it to the House to spell out why they were regarded as lawful even though we are having to act in such a precipitate fashion to put things right.

I see that the Secretary of State has certified the Bill as being in compliance with the European convention on human rights, but as the previous speaker pointed out, the use of such retrospective legislation, which impacts on something so fundamental as the citizen’s right to liberty, may raise questions under the charter of human rights, so I should be grateful if the Secretary of State reassured us that the most careful attention has been given to that most precious of issues.

14:12

[Hywel Williams (Arfon) (PC)]

I state an interest as a member of the all-party group on social work. Before I was elected, I was for a short time an approved social worker under the Mental Health Act 1983. I was also a member of the Joint Committee that looked at mental health legislation before the passage of the National Health Service Act 2006. As far as I remember, the issue was not addressed that winter when we looked at the legislation in considerable detail.

First, to state the obvious, compulsory detention is a serious matter, as hon. Members and right hon. Members have said. The deprivation of liberty without the legal processes of the courts has always been subject to great safeguards. I accept that this is an emergency, but it is undesirable in the extreme that the subject is dealt with in such a manner. Emergency legislation should always be used as sparingly as possible, in particular in mental health.

The House will be interested to learn that the expert group examining mental health legislation in the winter before the 2006 Act was looking at legislation from the previous century. As I said at the time, they had been looking at it for years and years, not just overnight.

As I have said, I acted as an approved social worker for some time, and I was briefly a mental welfare officer under the Mental Health Act 1959. That measure was extremely unsatisfactory and, to contextualise the subject we are discussing, there was particular concern about section 29 of the Act, under which people could be taken into hospital compulsorily as an emergency for up to 72 hours, on the basis of one medical recommendation. Recourse to that provision was particularly high in rural areas such as mine where one could not get hold of a second approved doctor. That was one of the reasons why the 1983 Act tightened things up as much as it did.

The 1983 Act brought in safeguards and followed a long campaign by Mind, among other organisations, led by Larry Gostin. The burden of the Act is that better human rights safeguards must be in place, and I welcomed it at the time. One of its provisions was that two properly approved doctors should look at any application. That is the context for the worrying statement made by the Secretary of State yesterday.

I was glad to hear the Secretary of State’s assurances that the measure is a technical matter and that no one was wrongly detained, that proper clinical processes were carried out and doctors were properly qualified for the roles they undertook—apart from this technicality. I agree that the position should be regularised as soon as possible.

However, I take the points made by the hon. Member for Southport (John Pugh) and the right hon. Member for Oxford East (Mr Smith): there are rightful worries about compulsory detention and there could be further cases. We must get to the bottom of how the situation arose and find out why it has taken so long—more than 10 years—to come before the House. Did it not come up in any of the Department’s visits in its inspectorial role? I worked briefly as a freelance for the inspectorial arm of the then Welsh Office, so I know how much detailed care went into that role at the time. Why has the issue not come to the fore until now?

I have some questions that I will ask now, even though it is a Second Reading debate. Perhaps the Secretary of State could answer them when he winds up. As background to the Bill, I read that there are between 4,000 and 5,000 current patients. Can the Secretary of State confirm that they really are current patients? If so, are there many thousands of former patients who might have been sectioned who also have an interest in the matter? Is the figure current or a cumulative total? Does it include only in-patients? What about patients in the community on compulsory treatment orders? There could be many thousands of them. We need clarity about the size of that population.

I asked in an intervention whether only particular strategic health authorities were involved. Rampton was certainly involved; it takes patients from Wales and elsewhere. I was not sure whether Ashworth was included. The hon. Member for Southport seemed to indicate that Ashworth—Park Lane, as it was—had not been drawn in. Could the Secretary of State provide some confirmation?

There are questions about informing patients and their families about the problem that has arisen. Those people may be very vulnerable, given their condition. Some patients are likely to be anxious as part of their illness, and this situation could exacerbate their condition. We need to make sure that these events do not exacerbate existing conditions, so I should like some assurance from the Secretary of State about how patients, former patients and their families will be contacted. Will independent advocacy services be involved? I am not talking about lawyers or ambulance chasers, but about the many services properly set up in the community to support people.

Communication must be appropriate. The code of practice for the 1983 Act specifies that communication with patients must be made appropriately on the basis of age, gender, race and language. One of the reasons I am speaking in the debate is that some Welsh-speaking patients might have been involved, so I want to be sure that they will be contacted and communicated with appropriately. Because of this incident, the process might be upsetting for people who have been sectioned in the past, so I should be grateful for reassurance that long-term support will be available if that is a disturbing factor in their condition.

The briefing notes, which I read with interest, refer to compensation, which should be the last thing on anyone’s mind at a time like this. I was reassured, however, to learn that people can bring cases. Some individuals can be litigious. Sometimes, as part of their condition, they are notoriously litigious, as I said earlier, but that does not detract from their right to bring cases unless the court rules otherwise.

I have some concerns about doctors. I asked earlier whether approval by a strategic health authority automatically enabled people to act elsewhere. The Minister initially said that it was just within the strategic health authority area, but then he said it was throughout England. I should like that matter to be cleared up and, as a Welsh Member, I should like it to be cleared up in relation to Wales and possibly Northern Ireland and Scotland. I am worried that doctors may slip through the net because they have acted outside the four areas that have been identified.

What discussions has the Secretary of State or the Minister of State had with doctors’ representatives? I appreciate that time has been short, but I hope that doctors have been fully involved. Are there any implications—I cannot think of any—for the second doctor involved in sectioning? I should be grateful for reassurance on that point. Equally, are there any implications for the social worker, as it is usually a social worker who is involved?

Finally, has the Wales Office been involved in any way? I am glad that Wales, Scotland and Northern Ireland have been informed. It is more of an issue for Wales, given that we share many clinical services and people from Wales are often treated in England: special hospitals are an obvious example. I hope that there has been the closest co-operation possible between the Wales Office and the Welsh Government in Cardiff. I am glad that an independent review under Dr Geoffrey Harris has been announced. I hope that the Wales Office and the Welsh Government will be involved to the degree that they should be.

14:22

[Emma Reynolds (Wolverhampton North East) (Lab)]

I wish to make only a couple of points about this emergency legislation, which I support. The Government still have a number of questions to answer. First, further to the point made by my right hon. Friend the Member for Oxford East (Mr Smith), I should like to press the Secretary of State on legality. In the explanatory notes, the Government say:

“Although we believe that there are good arguments that detentions under the Mental Health Act were and are lawful, it is important that there should be no doubt about this.”

If legislation does not permit the authorisation and delegation of power to doctors under that measure, does that accord with the law? I am not lawyer. Many right hon. and hon. Members on both sides of the House served in that profession before first coming to Parliament, but I am not one of them. However, if the previous measure did not permit such a delegation of power, doctors acting without that permission were not proceeding according to the law. I should therefore welcome clarity on that point.

Secondly, with regard to what happens from now on—the Bill is retrospective in effect—the Government propose to abolish strategic health authorities. As far as I understand it, SHAs were named in the original legislation. What will effectively take their place when they are abolished and will further amendments need to be tabled by the Government?

14:24

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

The Opposition do not oppose the Bill. We are aware that much of this activity took place under a Labour Government, and we are anxious to work in the most co-operative way possible to resolve the situation. However, I would do the House a disservice if I did not set out the in-principle objections to retrospective legislation of this kind.

I should like to quote someone whom Government Members may take more seriously than some of us. In the “The Road to Serfdom”, Hayek said of the rule of law:

“Stripped of all technicalities [the rule of law] means the government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s affairs on the basis of this knowledge.”

I shall set out objections to retrospective legislation, because despite the urgency of the situation and the problems that might arise if it were not introduced, we should recognise that it is a very serious matter to introduce retrospective legislation of this kind. The Opposition, as my right hon. Friend the Member for Leigh (Andy Burnham) said, were a little surprised that the Secretary of State for Health did not open the debate.

If retrospective legislation is undesirable in principle, it is particularly undesirable when it concerns the liberty of the subject. There is no precedent for retrospective legislation on such matters. We are dealing with the mentally ill and the sectioning of people under the Mental Health Act 1983. Due process is even more important in relation to issues under that Act than in relation to other matters of criminal justice, as we are dealing with vulnerable people who are not in a position to advocate for themselves. Due process is not less important in relation to Mental Health Act matters; it is more important.

I urge the House to pause for a second and see the situation from the point of view of the mentally ill, their families and their supporters. For people engaged with mental health legislation, the process may appear Kafkaesque and labyrinthine. They now know that 5,000 people—perhaps more—were sectioned, strictly speaking, illegally, which can only cause unhappiness and uncertainty. As hon. Members have said, it may even affect the condition of those people.

[Dan Byles (North Warwickshire) (Con)]

I do not disagree with anything that the hon. Lady has said, but I should like to clarify something. Is she basically saying that she supports what the Government have done, but is putting on record the fact that the measure must not be seen in any way as a precedent? This is an exceptional and unique set of circumstances. Is that effectively what she is saying?

[Ms Abbott]

I have been a Member for 25 years. I have never seen retrospective legislation of this kind. Although we support what the Government are doing, we do not want it to be seen in any way as a precedent; nor do we want it to be thought that, because the measure relates to the Mental Health Act, it is less significant than if it were a broad criminal justice concern. That is the point that I want to put on the record.

As I have said, for patients and their families, the mental health system may appear labyrinthine and Kafkaesque at the best of times. Now they find that for a long period—some of it under a Labour Government—people were being sectioned without proper due process. Ministers have said, both today and yesterday, that this is a technicality, but due process means that people should abide by the technicalities. Only in that way can we defend the liberty of the subject, and only in that way can the subject have any recourse. If we do not abide by the technicalities and if the rule of law does not apply, where do our constituents and other ordinary people turn if things go wrong?

Ministers have made a series of assertions. They have said that no patient has been wrongly detained or received care that was not clinically appropriate. They have said that no doctor was unqualified to make the decisions, and they say that urgent action is being taken to correct the situation. But I would be interested to hear from Ministers whether there has been an individual case review of these cases. How can they assert that no patient has been wrongly detained or received inappropriate care if the Government have not reviewed each case individually? How can Ministers assert that no doctor was unqualified to make the decisions if they have not reviewed each case individually?

I am not raising these issues to stop what I understand is an urgent process, but it would not be right for the House to railroad the legislation through without paying attention to the individuals and the individual cases involved. If there has been no individual case review, the question raised by other hon. Members whether the Bill will stand up to judicial review comes to the fore. Is the Minister in possession of robust, irrefutable evidence to show that none of the more than 5,000 patients detained by the approximately 2,000 not properly approved doctors was subject to clinically inappropriate detention or hospitalisation?

Will the families and carers of those individuals be advised of the situation and given an opportunity to raise any concerns that they may have? When a relative is detained under the Mental Health Act, the question whether that is appropriate can be one of the most difficult and traumatic questions that a family has to face, and to dismiss the lack of due process as a mere technicality, as Ministers have come dangerously close to doing, is not fair to those individuals and their families—our constituents.

Although I accept that the doctors concerned have acted in good faith, I hope the Minister will agree that we are dealing with a highly vulnerable group of individuals—the patients and their families—and they need to have absolute confidence in the Government’s response. We understand that introducing urgent legislation is part of offering such reassurance. It will protect vulnerable patients from a potentially exploitative situation in relation to what are commonly called ambulance-chasing lawyers, but when their relative is taken away from them, people also want to know that this is not a mere rubber-stamping process. I have heard nothing so far that would reassure me, if I were the mother or a relative of one of the people detained under a defective process, that Ministers do not regard this as a mere rubber-stamping process and that all the Bill does is alter in some technical way the nature of the rubber stamp.

My right hon. Friend the Member for Leigh made the point that we need to move forward with a very different attitude to mental health. We need to look for parity of esteem between mental health and physical health, but in this matter, in relation to the liberty of the subject, we also need to look to parity of esteem when someone’s liberty is taken away under the Mental Health Act and under broader criminal justice legislation. If people had been held in prison and there had not been due process, it would not be good enough to railroad through retrospective legislation in an afternoon in the House of Commons. There would be much more uproar.

We want to impress upon Ministers that we must take seriously the liberty of people detained under the Mental Health Act and demonstrate that we are doing so. A number of questions have been raised by hon. Members on Second Reading, and we hope that the Minister will be able to answer them. I thank right hon. and hon. Members who have taken part in the debate. As I said earlier, I hope the Government will try to involve the family and carers of those affected more closely in the process of bringing clarity. I hope that the Government will seek to remove any uncertainty and will explain to them what they can do to seek redress.

Like my right hon. Friend the Member for Leigh, I commend Ministers for their attempt to move quickly on a very difficult issue. We want to offer the Secretary of State any assistance that we can as he seeks to answer questions from patients, families, carers and the wider public, but we say to him that retrospective legislation is very serious. It cannot be dismissed as a technicality. The liberty of the subject is, so to speak, the ground zero of parliamentary democracy in this country. It cannot be dismissed as a mere technicality. Sadly, I do not believe that the debate this afternoon will be the last that we hear on the matter. It is extremely important that those of us who are in the House this afternoon tease out the answers to the questions that have been put.

14:36

[The Secretary of State for Health (Mr Jeremy Hunt)]

I start by apologising to any Members who had hoped to intervene on me at the start of the debate, but I hope that I will now be able to give a fuller answer not just to any interventions, but to speeches made by right hon. and hon. Members. I thank the Opposition and the whole House for the very responsible attitude that they have taken towards this extremely sensitive and difficult issue. I intend to respond fully to all the points made by right hon. and hon. Members about the need to act so fast and retrospectively. Those are important issues that deserve the fullest attention.

It is important to record our appreciation at this stage for the invaluable help and advice that we received from partners outside the House, such as Mind, Rethink and the Royal College of Psychiatrists. Their primary concern is naturally those whom they represent so ably, but we are genuinely grateful for the mature and calm way in which they have responded. Everyone in the House has shared the same ultimate objective—to do what is best for the patients directly affected by a technical error.

Let me go through the points raised in the debate. I shall try to respond as fully as I can. With respect to the devolved Administrations, I have spoken to Health Ministers in Wales and Northern Ireland today, and I spoke to the Advocate-General for Scotland yesterday. They have been extremely supportive of the position that the Government and the whole House have taken, and they understand the need for speed. In Wales it is a sensitive matter because the Welsh Assembly is in recess, but I managed to speak to the Health Minister and go through the issues involved.

A number of Members asked about the extent to which we will be communicating with patients. We are working closely with the Royal College of Psychiatrists as to the best way to do this. That also extends to the families and carers of patients. Sir David Nicholson, the chief executive of the NHS, is writing to all strategic health authorities, stressing the need to communicate broadly across all mental health organisations, including patients and their families, and including, as has been mentioned, not just the patients who are directly affected, but potentially other patients who have been detained under the Mental Health Act, who may also have concerns. We have not been able to complete that communication exercise at this stage, because of the speed necessary to pass the Bill, but we will need to make sure that it proceeds as a matter of urgency.

[Andy Burnham]

We welcome the exercise being carried out by the NHS chief executive, but it is not the same as a personal communication to the individuals directly affected, so will the Secretary of State address the specific point of whether or not they will receive explanatory information from him or the Department?

[Mr Hunt]

Yes. What Sir David Nicholson is doing is ensuring that all SHAs have a proper communication process in place, but we want to follow clinical advice on the appropriateness of individual communications with individual patients. Where we are advised that is clinically sensible, we must ensure that it happens, but we want to listen to the advice carefully because of the vulnerability of some of the patients involved. The right hon. Gentleman makes an extremely important point. We must do this properly but, as I know he will agree, we must proceed with extreme care and caution.

I will start with some of the issues that the right hon. Gentleman raised, particularly the role of the review being conducted by Dr Geoff Harris. He is absolutely right that it needs to be done speedily because of the changes being introduced by the Health and Social Care Act 2012. I want to reassure him that Dr Harris’s review will not be simply a retrospective review; he will not just be asking, “Why did this happen?” He will also be stepping back and asking, “Where might this happen again and are our governance procedures sufficient to ensure that it does not?” In particular, he will look at the new structures that will be put in place over the next few months to give us good and independent advice on whether we have the safeguards in place to prevent this from happening again. That is an important point.

With regard to how many people are affected, the figure is up to 5,000. We think that the number includes all the patients at Rampton and 57 patients at Ashworth, but we are still verifying the exact numbers. I will keep the right hon. Gentleman informed as more information becomes available.

The right hon. Gentleman’s other point was about the new arrangements that are being put in place. He wondered, legitimately, whether, as the powers are returning to the Department of Health following the abolition of the SHAs—he was correct to pick that up from my comments yesterday—there is a danger that the process could be more remote for local areas. We will keep him informed of our plans in that regard, but we do not intend to have a single national panel doing this. We intend to have a structure that draws on local and regional expertise to help us to make the right decision on the suitability of doctors for the role. That is also something we hope Dr Harris will advise us on when he conducts his review.

I will move on to some of the comments made by the right hon. Member for Oxford East (Mr Smith). Independent oversight is also something we will ask Dr Harris to look at. He is independent and he is looking at it. We will also ask him to look at the general issue of independent oversight and whether it has been missing in the structures we have had to date and, therefore, whether it contributed to the concerns that we are now addressing.

The right hon. Gentleman and the hon. Member for Wolverhampton North East (Emma Reynolds) raised another issue: the wording we have been using, the fact that we believe there are good arguments for saying that the detentions that happened as a result of approvals made by the doctors in the four SHAs were and are legal and, therefore, why we feel the need for emergency retrospective legislation. It is a reasonable question. The answer is that we believe that there is legal precedent for why, in so sensitive a situation, a court, in deciding whether a detention was lawful or unlawful, would consider what the will of Parliament was when it passed the original law. Therefore, we believe that we have a good argument for why a court should rule that these detentions were and are lawful.

However, because of the technical irregularity in the process of approving some of the doctors who made the decisions in the four SHAs, that argument could be challenged. That is also an important part of the advice we have received. It is because it is so important to put the decisions beyond doubt, with respect to this narrow and technical issue, that the Bill is so incredibly important. However—this might help to address some of the concerns raised during the Opposition winding-up speech—this piece of retrospective legislation refers only to that narrow and technical issue. If people question the grounds for their sectioning under the Mental Health Act on clinical grounds and claim that the wrong clinical judgment had been reached, for example, or if they do not agree with what the panels have said, the Bill will not affect their right to challenge the decision and, if the court upholds the challenge, to get compensation if they have been detained. The Bill relates only to the very narrow issue of the technicality.

[Mr Andrew Smith]

I am grateful to the Secretary of State for giving way and for his response to one of my earlier points. As he is adopting a belt-and-braces approach to this—a sort of “We think it was lawful, but let’s make absolutely sure” approach—would it not also be wise to arrange, if not in the Bill then as an executive action, for the doctors in question to be re-approved by the correct process?

[Mr Hunt]

The right hon. Gentleman makes an extremely important point. I am pleased to reassure him that that has happened. That was one of the first things that happened, and it was completed yesterday, so all the doctors who are currently making these approvals in the four SHAs were approved using the correct process. We are confident that the problem will not arise in future, but we still have the issue of the decisions they took when the technical process had not been followed.

We have taken a number of actions to deliver parity of esteem for mental health services. I wholeheartedly agree with the concerns that have been raised about mental health issues having been for too long the poor relative in a number of areas. The right hon. Member for Leigh (Andy Burnham) will know that in July we published the implementation framework for our mental health strategy, “No health without mental health”. We have legislated, with his party’s support, for parity of esteem. The operating framework for the NHS expands access to psychological therapies, which is one of the key things we can do. The number of people accessing psychological therapies has increased to 528,000 people this year, which is more than double the figure for last year, and the amount of money going into it has increased from £364 million to £386 million. Those therapies have a very good success rate of about 45%, and we think that we can get it up to 50%. I want to reassure right hon. and hon. Members that we note the general view of the House that more emphasis needs to be put on mental health services.

[Andy Burnham]

But overall there has been a significant real-terms reduction in spending on mental health, as the figures given by the right hon. Gentleman’s colleague in the House of Lords a few weeks ago indicate, which suggests that the NHS is making disproportionately more redundancies in the field of mental health than in other areas and that it is reverting to that default position. Therefore, although I appreciate the Secretary of State’s words at the Dispatch Box today, the reality on the ground suggests that, as ever, mental health is bearing the brunt of some of the reductions and redundancies taking place and that the capacity of people to deal with these kinds of issues will perhaps be reduced. What will he say about safeguarding against that?

[Mr Hunt]

The right hon. Gentleman makes an important point. I believe that in actual terms the spending on mental health has increased slightly, but when we take inflation into account it might have gone down slightly in real terms. I do not think that it is a significant drop, but overall, as he knows, the NHS budget has been protected. I would be extremely disappointed if, as we go through a process of finding important efficiency savings in order to meet the increased demand on the NHS, the picture that he paints were to be the case, but I will be watching the situation very carefully. I will expect him to hold me to account for my commitment to ensuring that mental health services are properly addressed.

Crucially, it is not just about what we say but about what we deliver, particularly as regards the progress that we make towards improving access to mental health services, which were never included in the waiting times targets that were introduced by the previous Government. There are obviously financial implications in doing that, but we are working on it. Parity of esteem needs to include access to mental health services and not just the availability of those services.

[Mr Andrew Smith]

Does not parity of esteem also, crucially, need to apply to research funding—a point that was made earlier during the urgent question on Winterbourne?

[Mr Hunt]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. We are again going very wide of the Bill and the points that are supposed to be made in relation to it. The right hon. Gentleman’s question does touch on that, but I would be grateful if the Secretary of State, in responding, returns to the Bill by focusing on the items that we will be voting on today.

[Mr Hunt]

The answer to the right hon. Gentleman is yes. I will now return to the specific questions asked about the Bill.

The hon. Member for Southport (John Pugh) talked about the important issue of discrimination—that is, whether we are behaving differently because these patients have a mental illness. Removing discrimination does not mean treating everyone exactly the same. In fact, we will remove discrimination in the mental health field by better understanding the vulnerabilities and needs of people who have serious mental health problems, and that might mean treating them differently to account for that. The hon. Gentleman is absolutely right to say, as was the hon. Member for Hackney North and Stoke Newington (Ms Abbott), that important human rights issues need to be considered. I want to reassure him that, even in the four SHAs where the technical irregularity in the approval of doctors arose, the criteria were as rigorous as those used to make the clinical assessment that it was necessary to detain someone under the Mental Health Act. The same quality of expert advice was drawn on in order to make those decisions.

The right hon. Member for Oxford East asked why we are not limiting the legislation to the four SHAs where we have identified this technical irregularity. That is because we do not know at this stage whether the problem may have predated the establishment of SHAs—we should remember that these powers go back to the Mental Health Act 1983—and therefore, to make sure that we deal with the problem in its entirety, it is better to include the whole country in the legislation lest we find at a later date that the problem had existed in other parts of the country, perhaps prior to the foundation of SHAs.

On human rights, I have signed a piece of paper saying that I believe that the Bill is compliant with the European convention on human rights. I did that on the advice of Government lawyers and of the Attorney-General. The Attorney-General believes that, were a case to be brought now, people would be entitled only to nominal compensation because this is a technical, not a substantive, irregularity, and it is therefore not, on this occasion, a breach of people’s human rights to pass a law retrospectively.

The hon. Member for Arfon (Hywel Williams) asked why this has taken so long—why, for example, the Mental Health Commission did not identify the problem in its years of existence. That is a very important question. I cannot pretend that I have the answer now, but I want Dr Harris to look into that issue in enormous detail because I want to know whether there is a risk that other errors, similar or related, might exist in other parts of the system. The House needs to understand much better whether we should be concerned about that and whether the right governance procedures are in place.

The hon. Gentleman mentioned advocacy. As he will know, all patients have a right to an independent mental health advocate, but that process has not always worked as well as it should. I want to use the opportunity of the transfer of those responsibilities from primary care trusts to local authorities to make sure that we have proper procedures in place so that people really do get the advocacy support that they need.

Let me confirm to the hon. Gentleman—we received this piece of information as my hon. Friend the Minister was speaking—that someone approved in one SHA is able to practise in other SHAs. That is partly why the legislation needs to be UK-wide. We have had a lot of discussions about this with doctors’ representatives, particularly the Royal College of Psychiatrists. I do not believe that there are any implications for the second doctor or the social worker, but if I receive advice to the contrary I will write to him to let him know.

I think that I have covered most of the points raised by the hon. Member for Wolverhampton North East. She asked what is going to happen when the SHAs are abolished. We will be asking Dr Harris to address that when he carries out his independent review.

Finally, I turn to the hon. Member for Hackney North and Stoke Newington and her important comments about the seriousness with which we must treat any retrospective legislation. She referred to what Hayek said about that, with which I wholeheartedly agree. I did not think that we would be agreeing across the Dispatch Box about Hayek, but there it is. She made the important point that due process is about respecting technicalities, so we cannot brush it aside. That is why this legislation is necessary. A failure of due process—a failure to observe technicalities—puts us in an extremely difficult situation where ordinarily we would want to say that due process should be observed in all circumstances and that we should not pass retrospective legislation on that. In this particular case, however, it would have been against the clinical interests of 5,000 highly vulnerable people were we simply to consider that single legal perspective; the broader clinical perspective needs to be recognised.

The advice that I received from Professor Sir Bruce Keogh, the medical director of the NHS, was very important in persuading me that we needed to take the route of emergency retrospective legislation. He said that the alternative, which was to go through all 5,000 people and redo the entire sectioning process now that all the doctors have been properly validated, presented serious clinical risks to those individuals. It is a very difficult matter. As the hon. Lady and I are trading political thinkers, perhaps I could refer her to Isaiah Berlin and say that sometimes important moral principles are not totally consistent with each other. This is one of those occasions, and we have to weigh her very important points about the need to avoid retrospective legislation, even on technicalities, against the clinical interests of a highly vulnerable group of people.

[Dan Byles]

In a previous life, I sat on the board of a Mental Health Act scrutiny committee in a west midlands mental health trust. Does my right hon. Friend agree that this retrospective change does not in any way undermine the fact that every single one of the patients he has mentioned has been through a very robust system of checks and balances throughout the sectioning process in order to be sectioned, and then while they are sectioned, and has access to a very robust appeals mechanism that the Bill in no way undermines?

[Mr Hunt]

My hon. Friend is absolutely right. The key point is that those patients are free to challenge any element of the clinical decisions made as part of that very thorough process. This proposed law is about the technical irregularity only, and it is precisely because of the legal risks associated with that irregularity that we think it is necessary, in the interests of those 5,000 people, to enact this Bill.

[John Pugh]

I totally accept the point that the clinical need trumps the patient’s right to due process, but if the clinical need is questioned by the patient themselves it becomes more arguable, does it not?

[Mr Hunt]

If the patient wishes to challenge their clinical assessment, they are free to do so and the Bill will not affect that in any way. It is important that that point is understood. In fact, the Bill is very narrowly defined for that precise reason, and I think that is why the Attorney-General felt comfortable saying that it complied with the ECHR.

In conclusion, we have had a constructive debate on this very important and sensitive issue, but there are broader lessons to be learned about the importance, more generally, of mental health issues, and I and my colleagues in the ministerial team will take those very seriously as we progress. I am grateful to all hon. and right hon. Members present for their contributions to this debate.

Question put and agreed to.

Bill accordingly read a Second time; to stand committed to a Committee of the whole House (Order, this day).

Mental Health (Approval Functions) Bill

Tuesday 30th October 2012 Commons Chamber

Considered in Committee (Order, this day)

[Dawn Primarolo in the Chair]

Clause 1

Authorisation of approvals given before this Act

14:51

Question proposed, That the clause stand part of the Bill.

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

I want to raise two specific points. Opposition Members are concerned that the concept of “Any person” in clause 1 is too broad, because it appears to legalise approvals by anybody. Why does the clause not refer specifically to North-East, Yorkshire and the Humber, West Midlands and East Midlands?

Secondly, where is the provision for the doctors who have been approved by a trust according to what we now understand was a defective process to be re-approved by the correct process? As the clause stands, it seems—I am happy to be put right on this—that doctors approved previously by the trust will be able to continue to section patients without re-approval under the correct process.

[The Minister of State, Department of Health (Norman Lamb)]

I will first set out what the clause seeks to do and then respond to the shadow Minister’s questions.

The clause directly addresses the issue that the Bill intends to resolve. Between 2002 and 2012, four strategic health authorities delegated to mental health trusts the function of approving doctors with responsibilities under the Mental Health Act 1983. The legal advice that we have obtained is that there are good arguments, as we have already discussed, that decisions to detain made by doctors who were approved in that irregular way are nevertheless lawful. The clause removes any doubt—that is its purpose. It clearly spells out that when mental health trusts gave approval in the past they are to be treated as having had the power to do so.

The clause has the effect of eliminating any irregularity from decisions made in complete good faith, and in the best interests of the patient, by doctors fully qualified to make them. It does so in a way that is fully consistent with the legal and clinical advice that we have received on the issue, and means that patients and their families do not have to undergo the process of assessment for detention under the Act again solely for the purpose of correcting a technical error made by a strategic health authority.

The hon. Lady asked why the clause was so broad as to refer to “Any person”. I understand her concern, but the point is that we do not yet know whether there were other issues before the establishment of the SHAs. Obviously, that is part of the work that the review will undertake, but to ensure that we resolve the problem absolutely and that all those patients have clarity the decision was made for the clause to refer to “Any person” in order to avoid any risk of our uncovering another problem that might need a separate resolution. This deals with the whole problem of the approval process for the doctors who made those decisions.

The hon. Lady then asked, correctly, whether decisions will be taken properly as we progress. I can confirm that all the doctors have already been re-approved according to a proper process, so every decision that is taken from hereon in cannot be challenged. As we have said, any patient who wants to question the clinical judgement can do so and their rights remain the same as they have always been. This simply addresses the technical issue that we have been debating today.

[Andy Burnham (Leigh) (Lab)]

The clause refers not only to “Any person” but one who

“has done anything in the purported exercise of an approval function”.

On both counts, it is incredibly widely drawn and could take us into the territory of other elements of the approval process that may have been defective. Will the Minister assure the Committee that the clause is as narrow as it needs to be? It seems to be uncomfortably wide and may well restrict somebody’s ability to challenge an element of their section other than the fact that the doctor was not approved by the SHA. It is very loose in its current form.

[Norman Lamb]

I am grateful to the shadow Secretary of State for that intervention. We have gone through a very careful process and have followed legal advice on what is necessary to regularise the position. This relates specifically to the approval function, which is defined in clause 1(2). As I have said, the legal advice is that this is the best way to regularise the issue that has been uncovered.

[Mr Andrew Smith (Oxford East) (Lab)]

Before the Minister responded to the intervention by my right hon. Friend the Member for Leigh (Andy Burnham), he told my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) that if mistakes had been made before the establishment of the SHAs, some of the doctors who had not been properly approved previously may not have been approved by the executive action that the Secretary of Sate referred to earlier. Will the Minister assure the Committee that, should such instances come to light, those doctors will also be subject to a re-approval process?

[Norman Lamb]

The first thing I want to clarify, again, is that the clause ensures that if any previous authorisations were not done in accordance with the statutory provisions, the clause regularises that process, full stop. Of course, if we go back a long way, that may apply to people who have long since been discharged from their section. This regularises the situation for all. It also ensures that the detention of anyone who continues to be sectioned is regularised, because the original authorisation is deemed to be acceptable under the Bill and in accordance with parliamentary intent, as the Secretary of State said earlier.

[Mr Smith]

I am grateful to the Minister, but he has not fully answered my question. The Secretary of State has now properly given approval to those who were previously improperly approved. The Minister is right that many of the people in question may have retired or left, but some may still be practising. If further instances come to light, will they too be subject to a new scrutiny process?

[Norman Lamb]

I absolutely take the right hon. Gentleman’s point, and I am grateful to him. We must be absolutely certain that everybody is now properly authorised to make decisions. We know that everybody outside the four affected SHAs has been properly authorised—that has been checked and confirmed by SHAs, which have undertaken a proper check of their procedures. We also know that the four affected SHAs have already regularised the position of all their authorised practising doctors. We therefore know that across the whole system, doctors who undertake sectioning from now onwards will be properly authorised in accordance with the Mental Health Act 1983. The Bill addresses the previous problems with the authorisation process, and we have addressed the problem for the future by ensuring that everybody is properly authorised. I hope that deals with that point.

[Andy Burnham]

rose—

[Norman Lamb]

It does not entirely seem to deal with it, so I give way to the shadow Secretary of State.

[Andy Burnham]

I am grateful. It is important to get clarity before we leave this clause.

I know that the Government have not yet undertaken a full case-by-case review of the up to 5,000 cases involved. That prompts the question how the Government can be sure that the whole team involved in each case was qualified to a suitable level, and that there were not some instances of under-qualified people making decisions. That gives rise to concern that we may be retrospectively approving processes that were defective.

[Norman Lamb]

I do not think there is any suggestion that any of the people who undertook sectioning were not medically qualified to do so. The issue is simply with the body that undertook the authorisation and the fact that SHAs delegated that responsibility to mental health trusts, which was not in accordance with the law. The Bill is intended to regularise the position of every clinician who was not properly authorised because of that flaw.

[Andy Burnham]

I do not want to detain the Committee unnecessarily, but because the clause is drawn so widely it will possibly take away some people’s right to challenge whether there was a deficiency in the process or whether someone involved in the sectioning decision was under-qualified. Given that the Government have not undertaken a case-by-case review, I wonder how we can have absolute confidence that the power in the Bill is not too widely drawn.

[Norman Lamb]

I am told that we have dealt, doctor by doctor, with all the doctors in question who are currently practising. The problem relates to the doctor, not the patient, because it is about their authorisation to undertake the duties in the 1983 Act. The only people who undertake the actions referred to in the clause are doctors, who were authorised but unfortunately by the wrong body. That is what we are seeking to regularise.

[Andy Burnham]

We must have absolute clarity about this. In that case, why does the Bill mention “Any person” rather than “any doctor”? Our understanding is that a broader team of people can be involved in a sectioning decision, such as a social worker. If it is only doctors, the Bill should just say “any doctor”, but it does not.

[Norman Lamb]

We are talking about the approval function. Subsection (2) mentions

“practitioners approved to give medical recommendations”,

so it clearly deals with practitioners who have already been authorised, but by the wrong body.

[John Pugh (Southport) (LD)]

I am genuinely trying to understand this point and ensure that the Bill is as foolproof as possible. As I understand the Government’s case, the clinical need of people with mental health problems—the Bill clearly would not apply to people who did not have mental health problems—is trumping the absence of proper process, so the Bill is not an abuse of human rights.

The difficulty that I have with that argument—perhaps I ought not to have it, and maybe I am being particularly thick—is that the clinical need in question was established through a process that is acknowledged as formerly having been flawed. The clinical need is apparent only when a case has been heard and processed. The concept of clinical need here is certainly—

15:15

[Madam Deputy Speaker (Dawn Primarolo)]

Order. May I say to the hon. Gentleman that this is an intervention, and interventions are supposed to be brief? I know that this is a complex point, but interventions are becoming speeches within the Minister’s speech. If the hon. Gentleman could make his point succinctly now, it would help all of us.

[John Pugh]

My point is that the definition of clinical need ought to be good enough for a psychiatrist, but I am not convinced that in this context it is good enough for a lawyer.

[Norman Lamb]

All that is being regularised is the power to approve a doctor, not whether a doctor is clinically sound. Any patient who challenges a judgment to section them either now or in the past will retain all their rights in law. We have acted on the advice of both lawyers and clinicians to ensure that we deal with the problem that has emerged in a way that respects patients’ clinical interests and considers them with the utmost seriousness. To go through a full reauthorisation process in every case could be incredibly damaging to individuals in potentially vulnerable situations. The Bill is based on the best clinical and legal advice that we have received on how to deal with the problem.

[Ms Abbott]

The Opposition have listened with great care to what the Minister has said. He has made a point of saying that his advice suggests that the Bill is the best way to deal with the situation. We argue that it is perhaps the most convenient way, but we know that the parliamentary draftsman has been under huge pressure to produce the Bill, and this would not be the first time that parliamentary draftsmen have come up with a form of words that is in some way defective. I repeat our concern about the broad nature of the clause, which states that “any person” who “has done anything” is to be “treated for all purposes”.

[The Secretary of State for Health (Mr Jeremy Hunt)]

Perhaps I can assist in this matter. I do not believe that there is a drafting error, but the hon. Lady is absolutely right to scrutinise every word of the Bill carefully and ask questions.

Clause 1 does not mention “any doctor” because it is about the power for an SHA to delegate the authority in question, not about a doctor’s decision or clinical ability. It refers to the person who approves that power of delegation. I hope that that clarifies the matter.

[Ms Abbott]

We have listened to what the Secretary of State and the Minister have said. We remain concerned about the broad nature of the clause, but we rest our case.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading

15:19

[Mr Jeremy Hunt]

I beg to move that the Bill be now read the Third time.

This has been a distinctly unusual process for the House, and one that is unprecedented for recent Members. Only after hard—if very rapid—consideration over the weekend did I decide that emergency legislation was the only safe course, and recommend that to the Prime Minister.

Retrospective legislation affecting an individual’s right to liberty is a major step, and it would be intolerable to have any doubt about such an important part of the law. Such a situation would be unacceptable for patients, their families, and doctors and nursing staff in NHS and independent hospitals. I have been insistent throughout that the clinical needs of patients should take priority within the law, and that legislation should be as tight as possible to ensure that patients’ legal rights are protected.

I thank Opposition Members for the way they have responded and for making it possible to legislate in such short order. I also thank hon. Members generally for their constructive challenge and scrutiny. Although there is need for urgency, it is essential that the Bill is properly tested, which hon. Members have done.

The House has acted wisely and swiftly in the interests of up to 5,000 highly vulnerable people. It has recognised the important human rights issues involved, and balanced that with clinical advice about the best interests of those people. I commend the Bill to the House.

15:21

[Andy Burnham]

The Opposition thank the Secretary of State and the Minister for attempting to answer all the questions that colleagues have raised. We appreciate that they have acted in good faith in bringing this legislation before the House with such speed, but, as my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) rightly said, this takes us into unprecedented territory. We are legislating retrospectively on matters of fundamental importance concerning people’s basic rights and public safety, and it is therefore right for the House to pause for thought and consider those issues before giving its assent to the legislation.

We had an important exchange on the precise drafting of the legislation, and a concern arose during the course of that debate. Clause 1 essentially states that “any person” who has undertaken any activity

“had the power to do so”.

If I heard the Minister and the Secretary of State correctly, that is not carte blanche to justify anything—including something inappropriate—that may have happened over the course of a decision, but simply means that the person who made the decision had the power to do so. I hope that people outside this House will hear those words clearly and understand that that is the only permission the House is giving this afternoon on this exceptional basis. In doing so, we return to the point about balancing our concerns about the exceptional nature of this legislation with the fact that this issue affects thousands of the most vulnerable people in our society and their families. We do not want any further distress caused to those people, or for them to suffer any unsettling effect, and that is why the Opposition believe that the legislation is justified.

It is crucial that no legal doubt hangs over arrangements that are made for patients and public safety. This Bill removes that doubt, but we do not want to remove any of the rights held by the individuals concerned, and in particular the 5,000—or more—people who may currently be challenging their detention. Having made that point as clearly as I can, the Opposition give the Government their support. We will seek to ensure that co-operation is continued in another place so that the Bill can be put on the statute book, and any uncertainty removed.

Question put and agreed to.

Bill accordingly read the Third time and passed.

Business without Debate

Tuesday 30th October 2012 Commons Chamber

delegated legislation

Tuesday 30th October 2012 Commons Chamber

Motion made, and Question put forthwith (Standing Order) No. 118(6)),

Animals

That the draft Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012, which were laid before this House on 12 July, be approved.—(Mark Lancaster.)

15:25

Division 89

Ayes: 275

---

Conservative: 228
Liberal Democrat: 40
Democratic Unionist Party: 5
Alliance: 1

Noes: 180

---

Labour: 170
Conservative: 6
Social Democratic & Labour Party: 2
Democratic Unionist Party: 1
Independent: 1
Green Party: 1
Liberal Democrat: 1

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Town and Country Planning

That the draft Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012, which were laid before this House on 17 July, be approved.— (Mr Syms.)

Question agreed to.

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Police

That the draft Police and Crime Commissioner Elections (Welsh Forms) Order 2012, which was laid before this House on 15 October, be approved.—(Mr Syms.)

Question agreed to.

Adjournment

Resolved, That this House do now adjourn.— (Mr Syms.)

15:40

House adjourned.

Westminster Hall

Tuesday 30th October 2012 Westminster Hall

Tuesday 30 October 2012

[Martin Caton in the Chair]

Business Rates

Tuesday 30th October 2012 Westminster Hall

Motion made, and Question proposed, That the sitting be now adjourned.—(Brandon Lewis.)

09:30

[Simon Danczuk (Rochdale) (Lab)]

It is a delight to serve under your chairmanship, Mr Caton.

Since I became Rochdale’s Member of Parliament, the local business community has raised business rates with me time and again, which is one reason why I initiated this debate. The other reason is that I believe the Government’s handling of this particular tax is doing real damage to economic growth. It is also fair to say that, in many ways, the Government’s handling of business rates mirrors the way they have mishandled other broader economic issues and failed to manage Government change.

I will start by providing some broad examples. The Government have talked tough on red tape, but their handling of business rates is making life a misery for thousands of businesses. The Government claim to be interested in helping the high street, but they ignore every retail voice that raises concerns about business rates. The Government talk about transparency and accountability, but they are postponing business rates revaluation without consulting business first. This weekend, through the Deputy Prime Minister, the Government talked about rebalancing our economy away from the City’s square mile to the rest of the country through more city deals, but they are now postponing business rates revaluation, which will have a major adverse effect on businesses in every region except the south-east.

The Conservatives have often peddled the myth that they are on the side of business. Well, if there is one policy that demolishes that myth—most businesses now know this—it is business rates. The Government are playing politics with business rates, which is hurting the high street and the wider business community.

On the recent business rate increases, the Government said in their recent circular:

“As business rates are linked to inflation, there will be no real terms increase in rates”.

On 2 July, the then Minister for Housing and Local Government, the right hon. Member for Welwyn Hatfield (Grant Shapps), said that business rates are having

“only an inflation-level rise”.—[Official Report, 2 July 2012; Vol. 547, c. 567.]

Do the Government think businesses believe that rhetoric? Does the Under-Secretary of State for Communities and Local Government, the hon. Member for Great Yarmouth (Brandon Lewis) think that businesses are oblivious to the fact that last year’s increase was based on an exceptional September, when RPI was at 5.6%? Does the Minister think businesses are not aware that that major rise in business rates gave his Government a windfall in revenue? In 2011, the increase was 4.6%, a cumulative rise of more than £0.5 billion over those two years. Businesses see this Government as disingenuous when they talk about business rates increasing only by inflation.

Although the Government have had a windfall in business rates, including much from the retail sector, they have dedicated little to helping the high street. From the £350 million extra income last year, the Government spent just £10 million on the various Portas programmes. Latest figures show that more than 30 high street chain-store shops are closing every day. Empty shop numbers have gone up, year-on-year sales are down, footfall is down and insolvencies are up. That is the picture of the high street under this Government, and their mismanagement of business rates is a major factor in that.

Every week the newspapers are full of stories of businesses citing high business rates as their reason for pulling out of an area or being forced to close. The chief executive of Britain’s third largest shoe retailer, Kurt Geiger, recently said:

“Business rates actually are what are killing UK retail”.

Retail has accounted for 20% of our gross domestic product, and it accounts for 11% of UK jobs and is the largest private sector employer. Retail is often the first rung on the ladder into employment for young people, but the ladder is now being pulled away by the Government.

We are all aware of the Government’s Portas review, and we all had high hopes for what it might achieve. But we now know the Portas review was just window-dressing. It is no wonder that Mary Portas is now telling industry conferences that she fears her review may have been a “Government PR stunt.” One of Mary’s recommendations in her 28-point plan presented to Government was:

“Government should consider whether business rates can better support small businesses and independent retailers.”

Those words must have gone in one ear of Government and straight out the other, because they have been flatly ignored. Straight after the recommendation, the Government introduced the biggest business rates increase in 20 years.

The Minister said last month on “ConservativeHome”:

“I want to make myself obsolete.”

I do not have a problem with the Minister making himself obsolete—indeed, I welcome it—but I do have a problem with him and his Government making the high street obsolete.

Because of the inflation-busting business rate increases, it is no wonder the Valuation Office Agency has a total of 241,700 outstanding appeals on business rates for the fourth quarter of 2011-12. In that quarter, the VOA managed to clear just 11,960 appeals. Many businesses in Rochdale have testified to the slowness of that process.

[Kate Green (Stretford and Urmston) (Lab)]

I congratulate my hon. Friend on securing this debate and on all the work he does on this subject, which is valued and noticed by the House. He is right to highlight the problems with the Valuation Office Agency, and CVS, a major business rates specialist located in my constituency, has expressed its view that the delays are compounded by cuts in staff at Her Majesty’s Revenue and Customs. Does he agree that that is part of the problem?

[Simon Danczuk]

I do agree with that statement. I am also familiar with the excellent work of CVS in championing appeals for businesses across the country. The lack of resources in the VOA is a concern that I will address in a moment.

It is clear that businesses are having to wait years for the VOA to get round to processing their appeal. By my calculations, the VOA will now take five years to clear its 2010 revaluation appeals. That is just not good enough. In that time a lot of businesses will go bust, having had to pay unfairly high taxes. Setting the taxes at a fairer level could make all the difference and allow those businesses to stay in business.

The question now has to be asked of the Minister: is the Valuation Office Agency fit for purpose? The VOA pointed out in its 2011-12 annual report that it had closed nine offices and that complaints had increased due to the length of time that business rates appeals take. The truth is that the Government have starved the VOA of resources, that appeals are taking far too long, and that as a consequence many businesses are paying too much in taxes, which is putting many businesses out of business.

[Kate Green]

Does my hon. Friend agree that it is a tremendous irony that delays in the VOA, which is one part of HMRC, are causing another part of HMRC to put businesses at risk of bankruptcy by trying to recover tax that businesses cannot afford to pay because their rates have not been properly assessed?

[Simon Danczuk]

That is absolutely right. The failure to run the appeals process successfully is damaging businesses, particularly small and medium-sized enterprises.

As if that were not bad enough, out of the blue, with no notice given, the Government then told us that they had decided to stop the 2015 business rates revaluation and carry it out two years later. There was no consultation with business, no detailed discussion of how the policy might affect economic growth, no consideration of how the policy might prevent the economy from being rebalanced along geographical lines. The British Property Federation’s chief executive says that the move

“embeds injustices in the current system”,

and the British Council of Shopping Centres says that it will have a “very negative impact” on the high street. Those organisations are big figures on the distressed retail property taskforce, which the Government are backing, yet Ministers will not listen to them.

[Mr Mark Spencer (Sherwood) (Con)]

I congratulate the hon. Gentleman on securing this important debate. One issue on high streets in my constituency is that landlords are having to pay business rates on empty properties and therefore do not have the cash to invest in those properties in order to attract new tenants. The previous Government introduced that system. Does he acknowledge that it might have been a mistake?

[Simon Danczuk]

That is an interesting point about empty property taxes. I will not address it in my speech, but it undoubtedly deserves examination and should be investigated further to see what impact it has on businesses.

Let me make it clear: I have yet to hear a single retail voice supporting the Government’s proposal to cancel next year’s revaluation. The Minister seems to think that he is right and everyone else is wrong. If he can identify somebody who supports the revaluation, I would be interested to hear who it is.

To put it bluntly, the business rates revaluation postponement is no way to do government. The decision to postpone next year’s revaluation of business rates has compounded the sense of injustice already felt by retailers and other businesses. To add insult to injury, the Minister has defended the policy by saying on radio that it is simply like being locked into a fixed-rate mortgage. What he did not tell radio listeners is that it is like a fixed-rate mortgage with an interest rate set at more than 40% for many customers. The Government must think that businesses are daft. Current business rates are based on rents that were set close to the property boom peak in 2008. Since then, property prices have fallen by up to 40% in many parts of the north and elsewhere in the country.

[Nic Dakin (Scunthorpe) (Lab)]

I congratulate my hon. Friend on securing this timely and important debate. Does he not agree with the Association of Convenience Stores that what is needed now is a full consultation with business about the right approach going forward and a radical way of looking at business rates, instead of Government ploughing forward in a furrow of their own?

[Simon Danczuk]

I agree with the ACS, which does excellent work. The lack of consultation on the revaluation is a massive part of the problem in which the Government now find themselves. In fact, the property agents Colliers have called the decision

“nothing short of a scandal”

and have accused the Government of trying to

“pull the wool over the eyes of business.”

The policy will mean that many businesses will continue to pay more business rates than they should, and it will disproportionately hit regions outside the south-east. I cannot put it better than Richard Farr of Sanderson Weatherall chartered surveyors, who said in Newcastle’s The Journal:

“Those in lucrative locations such as London and the south-east, where rental values have increased, will benefit from the move, whilst hard-hit retailers in northern cities and elsewhere will continue to be suffocated by being charged business rates based on pre-recession values.”

The Minister attempted to defend his policy by saying in The Daily Telegraph this week:

“revaluations are revenue-neutral overall...Suspending the revaluation will not earn the Government a penny”.

What he failed to tell business is that by suspending the revaluation now, he need not increase business rates in the south-east and reduce them elsewhere. Like other examples such as the local government settlement, the new homes bonus and public health funding, business rates have been adjusted to serve a political purpose. If next year’s business rates revaluation were to go ahead as planned, new rates would come into force in April 2015, a month away from the general election. Rates would undoubtedly increase in the south-east and decrease significantly across the north and elsewhere to reflect the adjustment in property values. That is not the kind of news that the Government want to present to heartland supporters a month away from elections.

To top it all off, the Government are attempting to defend their policy further by telling journalists that the move to postpone next year’s revaluation will provide stability for businesses, and that they want to avoid the volatility of significant changes to business rates. The Government do not appear to understand the system of transitional relief, which is designed to reduce the impact of any significant changes in the rateable value.

[Mr Marcus Jones (Nuneaton) (Con)]

Much of the hon. Gentleman’s argument seems to be predicated on the north-south divide. However, there are town centres throughout the country—in the south-east, the south-west, the north, the midlands and across the piece—that are struggling. Does he not agree that the issue is not just a north-south issue but relates to the whole country?

[Simon Danczuk]

I agree. Not only the north but other areas outside the south-east will be adversely affected.

The Government also boast of offering small business rate relief, a policy introduced by the Labour Government. They say that they have given local authorities the power to reduce business rates under clause 69 of the Localism Act 2011, but what they never make clear is that the local authority must pay for any reduction in business rates. In order to cut business rates, a council must cut back on care for the elderly or disabled services. What a fantastic choice to offer local authorities. In Greater Manchester, an area with some of the highest numbers of empty shops in the country, freedom of information requests have shown that not one local authority is using clause 69 of the Localism Act 2011 to reduce business rates. It is a shocking indictment of a toothless Government policy that has made no impact whatever since it was introduced in April and is a completely ineffective tool against high street closures.

To conclude, the Government are trying to postpone a business rates revaluation to protect the south-east while being dangerously complacent about the consequences of businesses elsewhere having to pay until 2017 excessively and unfairly high rates that have lost touch with rental values. The Government are using the desperate euphemism of “stability” when what is really meant is political expediency, and they are boasting about localism powers to reduce business rates that councils are not using and cannot use due to massive budget cuts.

I say clearly to the Minister that businesses do not want an out-of-touch Government telling them that they will have to pay unfair taxes regardless. They want someone on their side who is prepared to fight for a system that takes a fair proportion of taxes and gives businesses the breathing space and support to grow and lead a proper, sustainable recovery.

09:48

[Peter Aldous (Waveney) (Con)]

It is a pleasure to serve under your chairmanship, Mr Caton. I am grateful to my hon. Friend the Member for Rochdale (Simon Danczuk) for securing this debate, and I welcome to the Front Bench my neighbour, the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Great Yarmouth (Brandon Lewis).

I welcome the debate, as this is an opportune time to review the future of business rates. Business rates are attractive to the Treasury and always have been, no matter which party has been in Government. They are easy to collect, difficult to avoid and highly productive, representing 5% of the UK’s tax bill. However, there is concern that the Treasury’s over-reliance on business rates is having unintended consequences. First, it is hitting high streets particularly hard, contributing to the large number of vacant units. Secondly, it is holding back economic growth, as the retail sector in particular is an important engine of the economy. Thirdly, it hits hard businesses that are property-reliant and must be in a specific high-value location. Many profitable internet-based businesses that are less property-intensive are not penalised to the same extent.

I am not an expert on the subject of business rates, but I do have an interest in the subject: before I came here, I was a chartered surveyor for 27 years. I dabbled occasionally in business rates, but it is a very specialist subject. I am interested in playing a small role in encouraging the renaissance in the high street, and I commend the Government for the work they have done in that respect. Lowestoft, in my constituency, is a Portas pilot, and the town team is setting about its work with relish. It is important that we in this place provide the framework through which its work can come to fruition.

I shall concentrate on the retail sector, which pays a significant portion of all business rates—more than a quarter, at 28%. On average, 14.6% of retail units in our high streets are vacant. That is due to a variety of factors: the growth in out-of-town retail parks, the rise of online shopping, falling consumer demand and high business rates. In some cases, the business rates are higher than the rent. Often, a retailer is interested in a particular unit; the rent looks okay, and he is working things out, and then suddenly he is hit with how much the rates will be. Mary Portas has said that high rates are a deterrent to investment in town centres and to retailers occupying shops.

To be fair to the Government, they recognise the vulnerability of small businesses to high rates. There is a small business rate relief scheme, a business rate deferral scheme and discretionary rate relief. The problem is that those schemes have had a limited impact and are of limited benefit to many small retailers. As was mentioned, the retail sector is the UK’s biggest private sector employer. It provides crucial first jobs to approximately 1 million 16 to 24-year-olds. There is real concern that another hike in rates will lead to fewer chances of work, less investment in the fabric of our town centres, which are so important to the country as a whole, and a more troubled high street.

Any decision to postpone the five-yearly revaluation review needs more consideration, scrutiny and consultation. I note that the British Chambers of Commerce was taken by surprise by that postponement. I hope that as the Growth and Infrastructure Bill progresses through Parliament, we have the opportunity to consider the matter in more detail. Any property tax requires frequent revaluations to ensure acceptability and fairness. The five-yearly reviews that have been in place for more than 20 years are well understood and provide a level of certainty. A break in that precedent creates an air of uncertainty—people will not know whether a review will take place.

It is also important to take into account that relative property values change over time. Relatively, rents in some sectors and locations will rise, while those in others will fall. It is important that the rating system has an in-built review system that reflects the dynamic nature of the property marketplace. We can then be sure that the tax burden is spread fairly—that those with the broadest shoulders pay the most, and those whose business may not be as profitable at a particular time pay less. Liz Peace, the chief executive of the British Property Federation, sums it up well:

“A revaluation should shift the burden from those who are suffering to those who are prospering.”

With the proposed freeze, there is concern that those in lucrative locations will benefit and those in hard-hit areas will suffer.

[Mr Spencer]

Will my hon. Friend mention the tax on empty properties? That causes me great concern. People who want to start a business need access to a small property. Landlords who find themselves having to pay enormous rates on empty properties are literally flattening them, so that they no longer have to pay. That removes the amount of start-up properties for those businesses.

[Peter Aldous]

I am grateful to my hon. Friend for raising that important issue. I was not going to raise it myself, but I take account of what he says. The tax on empty properties was introduced under the previous Government. I was still practising then, and there were concerns at that time. I have seen a number of units—they may not have been in the best condition, but they were available, often with a low rental value—demolished by landowners and landlords. Reducing the supply of accommodation can lead to an increase in rents for small businesses that are just getting started.

[Mr Marcus Jones]

On that subject, does my hon. Friend agree that empty property business rates are also an impediment to developers and investors who wish to invest in new build in our town centres, as they may not be able to fill them with tenants straight away? The measures introduced by the previous Labour Government are leading to a situation that is stifling investment in our town centres, rather than encouraging it.

[Peter Aldous]

Yes, I agree. Investing in major town centre refurbishment schemes is expensive and challenging. Such schemes take a long time—often a number of property cycles. We therefore need to provide every incentive and encouragement for investors and developers to invest in town centres; otherwise, they take the easy option of going for out-of-town locations, which exacerbates the vicious circle of draining life and vitality out of the town centre.

I take note of the Valuation Office Agency’s research, which shows that 800,000 premises will see a real-terms rise in rates, while only 300,000 will see their bills fall. Having said that, I am also mindful of the views of Gerald Eve, which I think is recognised as the leading private practice firm in the specialist field of rates. It disputes the VOA’s contention and has carried out its own research, which reaches a different conclusion. We also need to bear in mind that at the time of the current valuation, April 2008, the market was at its peak. There is concern that postponing the review will lead to retailers facing incorrect and historical values for far longer than they should.

My hon. Friend the Member for Rochdale mentioned the backlog of appeals. One reason for postponing the revaluation is to address, and not add to, the backlog. We need to take urgent action to clear the backlog, and I would be interested to hear from the Minister on what proposals there may be. I hasten to add that I have no continuing involvement with any private sector firms, but we need to consider whether this is something that the private sector can do.

Let me turn to the annual increase in business rates. We need to review the mechanism by which that takes place—the increase in line with the retail prices index every September. If, next April, we keep to this September’s 2.6% rate, business rates will have gone up in the past three years by a compound rate of interest of 13.33%. That will mean that £500 million is added to the retail sector’s rates bill. At a time when council tax is frozen, Britain’s shopkeepers are carrying too heavy a burden on their shoulders.

I should like to mention three issues in closing. First, I hope that the Government, as soon as they are able, publish the data on which they have based their decision for postponement. We need to scrutinise this and have a consultation to look at it more closely. Secondly, we need to review the RPI link. Property is a declining proportion of the total economy, yet we are taking more out of it. I do not think that the golden goose has many more eggs left to lay. Thirdly, we need to look closely at the formula by which business rates are calculated. In particular, does the formula accurately reflect the rental value of out-of-town shop and retail park units? In the high street and town centre, people have to pay for a council car park, whereas car parking for out-of-town retailers is right on their doorstep and free. That is a real draw for shoppers, but it is not accurately reflected in the rates formula. I am grateful to hon. Members for listening to me.

10:01

[Ann Coffey (Stockport) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Caton. I congratulate my hon. Friend the Member for Rochdale (Simon Danczuk) on securing this important debate on business rates and on his comprehensive analysis of the effect that increased business rates will have on our high street.

Like many towns, Stockport is being squeezed extremely hard at the moment. We have one of the highest numbers of empty shops in the country, with nearly a third lying empty. There are various reasons for this, which I will mention later, but continuing high business rates are a major contributor to a difficult trading environment. The trend is that business rates are too high as a proportion of rents, and consequently many retailers are struggling to stay afloat. Small and medium-sized businesses are suffering disproportionately.

I have been looking in my constituency at the balance between rents and rates of many empty shops, which we desperately need to reopen. The problem was articulated by the head of north-west high street chain, Timpson, at a business event in Manchester on 15 October. James Timpson said he had considered opening a new site in Stockport recently, but the rent of £10,000 was almost half the £18,000 business rates. He added:

“Business rates have got completely out of hand. It’s become a real stifler and is stopping businesses from taking more space and trying new things. The higher the business rates the harder the gamble is to pay off.”

The Minister will be aware that last year’s 5.6% rise in business rates was the biggest increase in 20 years. If a chain like Timpson’s is being put off by high business rates, what can it be like for other businesses? As banks are very risk-averse, the current level of business rates must deter them from lending to those wishing to start a new business or extend an existing business. It makes little sense to exhort banks to lend while loading additional costs on business.

Two examples of empty smaller shop units in two key areas of Stockport that we need to develop further —the Market Place and the Underbanks—show the disproportionate level of business rates to rent. In one empty shop in the Market Place, which the council has spent much money on refurbishing, the rent is £9,750, yet the business rate bill is more than half that, at £5,287. In another empty property in our unique Underbanks area, which we are looking to revitalise, the former Greggs bakery, the rent is £15,000 a year but the estimated rates bill is £6,862. Many bigger shops in Merseyway, which we need and which must stay in Stockport, are appealing against their high rateable values.

There is no doubt that business rates are a barrier to new entrants to the high streets and a drag on investment and growth for small business. A recent survey of small shops identified that business taxation was one of the top five barriers to growth. As co-chair of the all-party group on retail, I tabled an early-day motion earlier this month, calling for a freeze of business rates next year to save jobs and prevent more shops from becoming empty.

There is widespread concern that a 2.6% increase in business rates in April 2013 would impede retailers’ ability to invest and create jobs, particularly for young people. The retail industry, as hon. Members have mentioned, is the UK’s biggest private sector employer, providing crucial first jobs to a million 16 to 24-year-olds. In Stockport, 5,700 are people employed in the retail industry. Business rates have already risen dramatically in both 2011 and 2012, by 4.6% and 5.6% respectively, a cumulative increase of more than £500 million.

The early-day motion also calls for a review of the mechanism by which rates are increased, to ensure a fairer and more sustainable formula for the future, based on an annual average of the consumer price index, rather than the lottery of using only September’s RPI. The RPI is unpredictable and usually higher than the measure that the Government choose to use for pensions and benefits.

I, like many colleagues, am also unhappy that the Government are postponing the 2015 rates revaluation until 2017. That will punish northern businesses particularly, by keeping them locked into 2008 rates, set near the peak of the property boom. The rationale for this decision is that local firms and local shops will avoid unexpected hikes in their business rates bills over the next five years. I quote the Minister in a recent article in The Daily Telegraph:

“The best thing Government can do to help such businesses is to provide them with a stable economic environment. This is why we want to protect local firms from soaring tax bills.”

Which businesses is he trying to protect? From the Government’s own calculations there are 800,000 winners and 300,000 losers from the postponement of the revaluations. Those figures, as the hon. Member for Waveney (Peter Aldous) said, probably require closer analysis and examination.

[Simon Hart (Carmarthen West and South Pembrokeshire) (Con)]

I shall make a helpful comment. Does the hon. Lady agree that, in some instances, local authorities are taking enforcement action against premises that have gone to appeal against their revaluation? It is crazy that there is a risk of their going out of business because of overburdening action by the local authority, pending the outcome of the appeal. Surely, local authorities could at least wait till the appeal is heard before going after the money.

[Ann Coffey]

The hon. Gentleman makes a good point. We must have systems in place that support local businesses and do not create extra barriers and difficulties for them. He is right about that.

Colliers International research shows that prime rents in Stockport fell by 29% between 2008 and 2012, so Stockport will not be a winner in this postponement; we are going to be losers. The winners and beneficiaries of the revaluation’s postponement will be those shopping centres where rents have risen, such as premium centres, which are still doing well. Shopping centres that need to be protected from “soaring tax bills”—I quote the Minister—are going to get hammered.

Mary Portas identified high levels of business rates as both a deterrent to investment and a disincentive to occupy physical shops. This policy can only add to the demise of our high streets. This is unfair and has been called the retail equivalent of the poll tax. I urge the Government to think again.

In addition to the high level of business rates, there are other important reasons why many high streets, particularly those in medium-sized towns, are struggling. They include major changes in shopping trends and habits, which have been accelerated by the economic recession, including fewer shopping trips, increased internet shopping, lack of investment and forward planning over the decades, and the continuing trend towards premium shopping centres. We also see a polarisation of consumers: those on low incomes struggle and shop in Poundland, bargain basement shops and charity stores, whereas those on high incomes continue to spend on designer-style goods in premium centres. There is a classic squeeze of middle shops and middle-sized shopping centres with smaller units.

We have to recognise that some high streets might never go back to being the destination of choice for major purchases, as nearby regional centres act as magnets, drawing shoppers from an ever-wider catchment area. We can, however, rebuild new and unique styles of shopping and experience, and towns such as Stockport need to have a distinctive shopping offer. We are looking at doing that based on the town’s cultural and heritage sites. We are one of the Portas pilots and we are looking at a culture-led renovation of our Underbanks and the Market Place, building on exciting national screening events at the Plaza, teenage and vintage market events and the High Peak beer festivals. We are doing all we can to attract independent retailers to the Underbank area, and some new specialist shops have opened.

Too many shops open and close, however; the economic environment is tough and we need retailers starting a new business to be successful and to expand. I therefore urge the Minister to take heed of the exhortations of the hon. Member for Stockport and other Members in all parties who are passionate about and interested in retail and to think again about postponing the revaluation exercise, freezing the business rates for next year. Please will the Minister give our entrepreneurs the space to take a chance and to build for future jobs and prosperity?

10:11

[Mr Marcus Jones (Nuneaton) (Con)]

Thank you for allowing me to speak in this important debate, Mr Caton. It is a pleasure to follow the hon. Member for Stockport (Ann Coffey), who set out a great advert for Stockport and what it has to offer. I congratulate the hon. Member for Rochdale (Simon Danczuk) on securing the debate; I have great respect for his work on issues relating to town centres and our high streets.

I have been slightly disappointed by the debate’s lack of acknowledgment of the general economic picture. Nor has much mention been made of the state of the public finances, which is another extremely important part of the context for the debate. It is worth restating, in support of the coalition Government, that when they came to power in May 2010 there was a car crash of a situation in the public finances and we had the largest deficit in the G20. To put things into perspective, the Government have had to make difficult decisions over the past two and a half years, but positive progress has been made. The deficit has been reduced by 25% in those two years and, throughout the world and in the markets, our country’s economic position is seen as stable. That is reflected in the low interest rates that we still have and which we would not have had were the Opposition in government; those low rates are allowing people to go out and use our shops to support our retailers.

[Helen Jones (Warrington North) (Lab)]

Perhaps the hon. Gentleman also wants to put on the record that when the previous Labour Government left office the economy was growing and unemployment was falling. This Government have presided over the longest double-dip recession that we have ever seen, and that is why people do not have money to spend in shops.

[Mr Jones]

The coalition Government should not take any lessons from the Labour party on economic management. We all know that we had the biggest bust in living memory under the previous Government, that under them the country was running a structural deficit long before the banks went bust and that since this Government came to power 1 million jobs have been created in the private sector. Growth might have only just come back into the economy and things might be slow, but we are building on a sustainable basis and not on the basis of borrowing and more spending, as we saw under the Labour party.

That brings me on to the points that I would like to make with my other hat on, as chair of the all-party group on town centres. I am passionately interested in issues relating to town centres, so I am concerned about the effect of delaying the revaluation. Town centres have been under the cosh for a number of years, internet retail is booming, out-of-town shopping centres are still buoyant and having an extremely good time in the main, and the net effect is that our town centres are currently in decline. Many of the national multiple retailers, which, only a few years before 2008, many of us were probably criticising for creating clone town centres, are now retrenching and consolidating their estates; when leases or break clauses come up, they are deciding to close town centre stores in favour of stores in large retail parks and of investment that they can make in internet retailing, because they can see that the writing is on the wall.

If we decide not to proceed with the revaluation at this point, we risk causing further damage to our town centres. Since 2008, town centre property values in my constituency have fallen like a stone, and rental income has reduced in the prime rental areas by 38%. Business rates are predicated on property value, and not revaluing the businesses in town centres seriously undermines the progress the Government have made on these issues. I welcome the Mary Portas review and am glad that the Government have taken on most of her recommendations, although such work could be undermined by the current proposals and, as my hon. Friend the Member for Waveney (Peter Aldous) mentioned, by local authorities that consider their car parks to be cash cows and think nothing of putting up car-parking charges year on year. We need to be careful that we do not price our town centres out of existence in a number of ways.

It is incumbent on the Government to be more creative. I would not personally advocate putting up business rates throughout the country, but the situation needs to be re-examined. My hon. Friend the Member for Waveney was critical of the valuation office figures for the proposed review, because they were now probably well out of date given the difference in economic circumstances between 2008 and now. The issue, therefore, needs to be looked at more carefully; we need to look at what we can do to support our town centres.

I hope that the Minister can give me, as chair of the all-party group, more confidence that the Government are listening to the concerns of those running businesses in our town centres—small, independent retailers and the large, multiple retailers which are seriously considering withdrawing their stores from many of our town centres. I hope that he takes the message back to the Government and that they reconsider what we can do to support such a vulnerable group of businesses in our community hubs. Most of our constituencies rely on town centres as the community centre for a local area, and we ignore that fact and the community values of our town centres and what they provide at our peril.

10:19

[Mr Iain Wright (Hartlepool) (Lab)]

It is a pleasure, Mr Caton, to serve under your chairmanship. I congratulate my very good friend, my hon. Friend the Member for Rochdale (Simon Danczuk) on securing this important debate, and setting out the arguments effectively and stylishly.

As a north-eastern lad, I feel somewhat hemmed in by the north-west contingent, but I will do my best to set out some of my concerns about my constituency, and the impact of the Government’s policy on Hartlepool. I will mention five specific points.

First, any discussion of underpinning business rates in my constituency should take account of the Hartlepool economy’s peculiar characteristics. Hartlepool borough council must deal with high need and a low base, by which I mean that it must tackle complex and long-enduring social problems but is generally unable to raise locally the taxes to fund those services. That is why redistribution of business rates from more affluent areas to relatively deprived ones, such as my constituency, is vital. About a fifth of my population are over 65, and that percentage will increase in the next few decades, placing enormous strain on already tight social care budgets.

Hartlepool has 81 looked-after children per 10,000 population of children, which is four times the rate of comparable local authorities. The town suffers from one of the highest levels of youth unemployment anywhere in the country, with one in four young men without a job or not in education or training. Hartlepool borough council must tackle those problems, but finds it difficult to raise the necessary revenue because of the narrow local tax base. Only 43% of council tax is raised locally. Three quarters of properties in Hartlepool are in council tax bands A and B, and only 7% of properties in the town are in band D.

That brings me to my second point, which is the peculiar nature of my local economy when it comes to rates. Hartlepool collects around £27 million in business rates, and receives back from the Government around £40 million. That £13 million redistribution is vital for the complex social needs that I have mentioned. The nature of the town and our economy leaves the local authority hugely exposed to major financial and economic risks. As I said, we raise around £27 million a year from business rates, and over 40% of that—around £11 million —comes from only 10 businesses. Hartlepool power station alone—that one single business—contributes about £4 million, or 15% of the total revenue collected locally through business rates. That leaves Hartlepool borough council exposed to a huge financial risk. If one of these 10 businesses closed or relocated, or the power station, as it comes to decommissioning at the end of its life, reduced its output and, therefore, pressed for a lowering of its rateable value, Hartlepool borough council would be extremely vulnerable to a considerable financial shortfall. The Government’s proposals to set safety net thresholds at between 7.5% and 10% will not provide my local authority with adequate financial protection because of its high reliance on large business rate payers.

I raised the matter with the Minister about a month ago in oral questions, when he made his first appearance at the Dispatch Box, and he kindly offered to meet me to discuss it. I hope we can agree a time for that meeting soon, but I hope that he will outline today any protection that could be made available to local authorities such as Hartlepool that are exposed financially in this way.

The third issue is the effect of top-slicing of local government spending control, funded mainly from the business rate take, which the Government intend to implement before determining grant allocations for individual local authorities. The awards to be top-sliced are considerable, with £250 million to fund capitalisation allocations, and £500,000 for the new homes bonus allocations. One purpose of capitalisation allocations is merely to allow councils to pay for the costs of redundancy through borrowing. Hartlepool borough council, rightly and prudently, has taken the view that any redundancy costs should not be paid through capitalisation as it is not prudent to fund the cost of making people unemployed through loans, thereby increasing the budget deficit in future years.

Although Hartlepool is keen to build more homes, the configuration of the new homes bonus shifts the redistribution of business rates away from areas of high need and low base in the north to more affluent areas in the south. My local authority has stated:

“These arrangements change the basis for allocating total available funding and will reinforce the disproportionate impact of grant cuts on councils in the North East, including Hartlepool Borough Council, compared to other parts of the country”.

What is the Minister doing to mitigate the effects of that top-slicing of business rates, which impacts most harshly on local authorities such as mine and those throughout the north?

Fourthly, as every contributor to this excellent debate has mentioned, the Government’s decision earlier this month to delay the revaluation of rates—my hon. Friend the Member for Rochdale spoke far more eloquently about this matter than I could—will have a massive impact on retailing. The Government have form on this. My hon. Friend and I sat on the Enterprise and Regulatory Reform Bill Committee, so we know that on matters such as unemployment legislation, feed-in tariffs for solar panels, and the tax grab for oil and gas companies in the north-east, the Government implement measures without consulting business or providing them with the ability to adapt, and without providing empirical evidence. Why do the Government not provide such evidence for what they are doing, and why do they not have a pro-business policy to consult and engage with businesses about their decisions?

Changing shopping habits, the existence of three large supermarkets in the centre of town, and the general harsh economic climate in the north-east has had an impact on retailing in Hartlepool. As a result, it has the fourth worst-performing medium centre for retail, with a vacancy rate of 28.8% according to the local data centre. The decision to delay revaluation of rates—as hon. Members have said elsewhere, 2008 was the height of the property boom—will have a further hugely severe impact on retail in areas such as mine, and further closures are inevitable. Those high streets that are already struggling will be hit hardest. That has come out loud and clear during the debate. What will the Minister do to mitigate the detrimental impact of his decision on areas such as mine, and other high street centres?

My final point is one of context. Changes to business rates must not be made without considering the wider context of local government finance. Local authorities such as mine have suffered severely the brunt of Government cuts. Hartlepool borough council had disproportionate cuts in 2011-12 and 2012-13 amounting to about £150 per person, compared with the national average of about £50. The local authority faces cuts to its budget of around one quarter this year, on top of cuts of £10 million last year. In an area of high social need and economic deprivation, cuts of such magnitude will unleash enormous and potentially irreparable damage to the fabric of Hartlepool society.

Will the Minister reconsider what he is doing with business rates and the cuts to local government finance in general and, most relevant to the debate and my area, the redistribution element of his policy, which will see much-needed funds flow from high-need, deprived areas such as mine to more affluent areas? Hartlepool borough council needs that redistribution exercise to provide the services required by the town’s population and heritage. I hope that the Minister will respond positively, because my town really needs that redistribution.

10:28

[Helen Jones (Warrington North) (Lab)]

It is a pleasure, Mr Caton, to speak under your chairmanship. I congratulate my hon. Friend the Member for Rochdale (Simon Danczuk) on securing this debate. Since he came to the House, he has been a powerful advocate for his constituency, and has done an enormous amount of work with businesses to try to promote growth in Rochdale. We congratulate him on that. He made the point that the Government are failing to manage that change and to consider important issues, such as rebalancing the economy, the gap between what is happening in some of our more deprived areas and in other areas, and the gap between the Government’s windfall from increasing business rates and the money being spent on the Portas pilots to help our high streets.

Other hon. Members have also made powerful points. The hon. Member for Waveney (Peter Aldous), who gave a thoughtful and considered speech, mentioned the reasons why the high street is being hit hard—the changes in our buying habits, the growth of internet sales, and so on—and he made the point powerfully about the differences between out-of-town shopping centres and high streets. That issue must also be considered. My hon. Friend the Member for Stockport (Ann Coffey) has consistently put the case for retail, and especially for smaller shops, and she showed how rental values in Stockport have fallen enormously, by 29%, so that they are now totally out of line with the business rates paid. My hon. Friend the Member for Hartlepool (Mr Wright), who was not only an accountant but a very effective Local Government Minister, pointed out the real problems of low tax bases in places such as Hartlepool, as well as the need for a redistribution of business rates, and the high risk that authorities in those places have when they are dependent on a few large businesses for a high proportion of their rates. We raised those issues during the passage of the Local Government Finance Bill, and I will return to them shortly.

In the Growth and Infrastructure Bill—never has a Bill been more inaptly named—the Minister has decided to bring forward proposals to delay the revaluation of business rates. We want to support business in any way possible, but during the passage of that Bill, we will want to scrutinise the evidence that he is bringing forward—evidence that has been queried in today’s debate. We will also want to look at exactly where the winners and losers are, and what the effect would be on our regional economy. There is no doubt, as hon. Members have said, that the rise in business rates has had a huge impact on businesses, particularly small and medium-sized enterprises and the retail trade. We have all seen it in our constituencies, as many hon. Members have said: we have seen shops closing and young people unable to get jobs. I know many graduates who cannot get jobs aimed at their level of education, and who have sought jobs in retail to show that they are willing to work. Businesses, however, are simply not taking them on as they used to. They cannot afford to.

As my hon. Friend the Member for Rochdale pointed out, last year the RPI rise was 5.6%. The RPI figure in September was 2.6%, and even though that is lower, it will mean an extra cost of £175 million for businesses. Some of those businesses are in areas where rental values have fallen alarmingly, and they are struggling to survive. We all know that business rates are the third biggest outgoing for most firms, after rent and staff costs. As has been said, the current business rates use the rateable values from 2010, which were based on the rental values in April 2008, when property values were close to their peak. Many businesses therefore find themselves in a trap: in many areas, they are paying high rates while struggling to cope with the effects of a recession.

When the Minister made his announcement about revaluation, he said that the five-yearly review will resume

“once the economy has had a chance to recover fully from the financial and fiscal crisis”.—[Official Report, 18 October 2012; Vol. 551, c. 33WS.]

Perhaps when he responds he might tell us when that will be. He clearly does not think it will be by 2015, which is what the Chancellor told us originally. Is he confident that it will be by 2017, and that another review will be carried out then? If he cannot say that, he is simply introducing more uncertainty for businesses.

Whatever the answer, it is clear that the system is not working as well as it should; that is evidenced by the number of outstanding appeals, to which my hon. Friend the Member for Rochdale pointed. There are 241,700 of them, and the Valuation Office Agency is struggling to clear the backlog. One thing the Minister could do is ensure that the VOA has more resources to tackle that backlog, so that at least businesses could have their appeals dealt with and can pay the right level of business rates. I hope that he will commit to that.

As the Minister will be aware, although the Localism Act 2011 introduced more powers for local authorities to grant discretionary rate relief, that power has rarely been used, because the councils that would most need to use it are often precisely those that have had the biggest cuts in their budgets, and they cannot afford to. As with everything the Government have done, it is the poorest authorities that have seen the biggest reduction in their spending power. In this Alice in Wonderland—or should I say “Through the Looking-Glass”—world that the Government have created, those who most need to offer discretionary rate relief are the least likely to be able to afford to do so. How does the Minister plan to tackle that problem?

Need is particularly acute, at a time when the Treasury is getting increased revenue from business rates. Over the last four years for which we have the figures, the contribution to the national pool has gone up by £3.5 billion, not because there is a hugely growing economy, but because the rates were calculated at a time when property values were high. That has particularly hit the retail sector, because year-on-year growth for retail has averaged only 2.1% over the past two years, while consumer spending fell for three quarters in a row.

The Government, however, are facing another problem, which my hon. Friend the Member for Hartlepool touched on. The Local Government Finance Bill makes local authorities more dependent for their income on business rates. They will get back 50% of their business rates. I believe that the Government’s intention in the long term is to get out of paying grants altogether—grants are discretionary under that Bill—and put more reliance on business rates. Local authorities, however, do not set the rate. It would be out of the scope of the debate to go through the whole Bill, but I suspect that the Government have clocked a real problem. If they have a revaluation in 2015, some local authorities could see their income fall drastically because their rental values have fallen. I have great respect for the guile and cunning of the Secretary of State. I suspect he has seen that problem, and has seen that what he is setting up in the Local Government Finance Bill might well implode as a result, which is part of his reason for wanting to postpone the revaluation.

If the Government are going to use that postponement to consider how business rates should be set, which I hope they will—as hon. Members have said, there are issues about whether we should take a 12-month average based either on the consumer prices index or RPI; whether we should take the RPI based on one month; how often revaluation should be done; and so on—they need to involve those who receive business rates as well as the businesses that pay them. That means not simply the Treasury, but local authorities as well. It is even more important to do that, because as we have heard today, the postponement of the revaluation is being viewed very differently in different parts of the country. It is not simply a north-south divide, although I accept what my hon. Friends have said about it impacting hugely on the north. Businesses that were hoping for a better alignment between rental values and the business rates that they are paying have been hugely disappointed. There is a big difference between what has happened in, for example, Rotherham, where rental values have fallen by 35% between 2008 and 2012, and what has happened in Bond street, where they have gone up by an average of 50%.

In that context, I wonder what the Minister plans to do to assist businesses, particularly small and medium-sized enterprises, in areas where rental values have fallen and business rates are now totally out of line with the values that currently apply. I hope that he will be able to answer some of the fundamental questions that we have posed today, because he will simply be creating more uncertainty and more difficulties for business if he cannot resolve those problems. Hon. Members have made that clear in the debate, and I hope that we will now hear more from the Minister about how he intends to respond to those concerns.

10:40

[The Parliamentary Under-Secretary of State for Communities and Local Government (Brandon Lewis)]

It is a pleasure to respond to the debate under your chairmanship, Mr Caton. I join other hon. Members in congratulating the hon. Member for Rochdale (Simon Danczuk) on securing the debate, which is indeed on an important subject. I thank him for drawing it to the attention of the Chamber, and I thank all hon. Members who have spoken so passionately on the issue. It is useful for me to be able to set out the Government’s position on business rates, and on revaluation in particular.

First, let me correct the fundamental misunderstanding that some people have about revaluations. They do not change the amount of revenue raised through business rates. Revaluations simply redistribute the rates burden among ratepayers. Therefore, what revaluations ensure is that the share of the national rates bill paid by any one business reflects changes over time in the value of its property relative to others. That means—this is the important point—it is likely that very many businesses whose rents have fallen, but by less than the average, would have seen a tax increase from 2015. The detailed work of reassessing all 1.7 million properties has not yet started, but the estimates prepared by the Valuation Office Agency suggest that 800,000 premises would have seen a real-terms increase in their rates in a 2015 revaluation. Sectors facing big hikes would have included retail as well as petrol stations, hotels and pubs. My hon. Friend the Member for Nuneaton (Mr Jones) mentioned pubs; as the Minister responsible for community pubs, I fully appreciate that point.

Let me set out the action that we have taken. To provide certainty and stability to all businesses, the Government intend to postpone the next revaluation from 2015 to 2017. To answer one of the points raised, the date of 2017 is in the Growth and Infrastructure Bill. Thereafter, revaluations will continue to take place every five years. The required legislative changes are in the Growth and Infrastructure Bill.

[Simon Danczuk]

If the revaluation took place in 2015, and was not moved to 2017, how many businesses would pay less in business rates?

[Brandon Lewis]

I am not sure that I followed the hon. Gentleman’s point. Could he clarify it?

[Simon Danczuk]

If the revaluation took place in 2015, as it should, how many businesses would see their business rates reduced?

[Brandon Lewis]

As I published yesterday, the Valuation Office Agency’s view is that about 800,000 premises would have seen an increase and about 300,000 a decrease. We are talking about the retail sector, petrol stations, hotels and pubs. Those kinds of business would have been most affected by hikes. Postponing the revaluation—

[Simon Danczuk]

Where do the 300,000 businesses in the Government’s figures tend to be based—which regions?

[Brandon Lewis]

At the moment, the estimate is done across the country. We are looking at publishing these estimates, but what the Valuation Office Agency can and will publish is a matter for the VOA. We are looking to ensure that that is resolved before the Bill’s Second Reading on Monday.

Postponing the 2015 revaluation in England will avoid local firms and local shops having to face unexpected hikes in their business rate bills during the next five years. As business rates are linked to inflation, there will be no real-terms increase in rates over the period. The reform therefore provides certainty for businesses to plan and invest, supporting local economic growth.

Since the last revaluation, which was based on 2008 valuations, the economy and property market have faced exceptional changes. A revaluation at this point would therefore be likely to result in sharp changes to business rate bills in many parts of the country and in many sectors. Tax stability is vital to businesses that are looking to grow and to help improve the economy. The Government are committed to maintaining up-to-date rate bills through regular five-yearly revaluations, which will resume, as I said, after 2017.

We can look only at estimates for the revaluation in 2015, because the detailed work has not yet started. The estimates have been prepared by the Valuation Office Agency and are based on professional judgments informed by limited rental market evidence up to January 2012. They suggest that many smaller and medium-sized firms would have seen rate increases in 2015. Overall, the estimates suggest, as I have said, that 800,000 premises would have had a real-terms increase in their rates from a 2015 revaluation. The retail sector, some parts of which have criticised our decision to postpone the revaluation, would have faced big hikes in bills in 2015.

[Helen Jones]

If I understood the Minister correctly, he said that the detailed work had not been done by the VOA. If that is the case, how can he be confident of the numbers that he has given on winners and losers?

[Brandon Lewis]

As I have said, the publication of the figures is a matter for the VOA, and one that we are looking to resolve before the Bill’s Second Reading on Monday, but those are the figures from the VOA that we have at the moment. To do the full, detailed calculation, we would need to go through the full revaluation procedure, and the figure for that is just under £50 million. I will come back to that in a moment. We have taken steps to change the legislation, but both Houses—I think that my hon. Friend the Member for Waveney (Peter Aldous) raised the point about reviewing and looking at what is happening—will of course have the chance to examine the policy fully during the passage of the Growth and Infrastructure Bill.

Variation in business rates can have a significant impact on businesses. As has been noted, business rates can add 50% to property costs and can equate to 7% or more of turnover. Large-scale changes in these costs can be very disruptive to businesses at a time when they want to concentrate on delivering growth. That is why we felt that postponing the revaluation was the right thing to do. It provides certainty and stability, allowing businesses to have confidence in what they are doing.

I am aware of concerns that have been heard recently from organisations such as the British Retail Consortium that business rates are generally too high and should not be increased in line with inflation. In fact, the system of increasing the rating multiplier only in line with inflation, which was introduced in 1990, has provided valuable certainty for businesses over the years. It has meant that they have been able to forecast their business rates bill between revaluations and plan accordingly. That was touched on by the hon. Member for Warrington North (Helen Jones), I believe.

The Government have said that they will review the case for uprating in line with CPI instead of RPI, or using a 12-month average instead of the September inflation figure. That commitment still stands. I do understand that in the current economic climate, there are retailers and other businesses that would like lower business rate bills, and there are businesses that would like the Government to raise less money from business rates at the next revaluation. When we consider calls, such as those made today, for lower business rate bills, we have to balance that not just against a system that has capped business rate yields for 22 years, but against the Government’s deficit reduction priority and the tough decisions needed to reduce the deficit. To back up the comments made by my hon. Friend the Member for Nuneaton, it is important, if there is to be that deficit reduction, that we do not make further spending pledges, which is, to an extent, what hon. Members have invited me to do today.

To date, the approach to granting business rates relief has been to target it where support is most needed—on, for example, small businesses, charities, and businesses in hardship. However, we find discussions with groups such as the British Retail Consortium helpful—I will meet it in the next couple of weeks—and will of course continue to keep the rating system under review.

Let me touch on a couple of specific points that were raised. I am aware that there have been delays in relation to rating appeals at the VOA. It has devoted extra resources this year to help to clear the backlog. My officials have regular meetings with the VOA to discuss the appeal numbers. Postponing the revaluation will allow it to deploy more resources to clear the appeals, but we will also be looking to work with the VOA to see what more can be done to clear appeals.

[Kate Green]

I am grateful for that assurance. We look forward to seeing the impact of the additional resources. Will the Minister also commit to ensuring that up-to-date data about the VOA’s performance continue to be published? There have been delays in publishing the statistics, which might mean that worse performance is deliberately being suppressed.

[Brandon Lewis]

I will certainly take that point back to the Department. May I highlight that any ratepayers with an outstanding appeal who are in financial hardship or facing enforcement action from a local authority should contact the VOA directly, because it will look at bringing appeals forward in such cases?

[Simon Danczuk]

I do not know whether the Minister has ever tried to contact the VOA, but my office certainly has. I speak on behalf of many businesses that find it exceptionally difficult to deal with the VOA. Does he agree that its performance on appeals is completely unacceptable?

[Brandon Lewis]

The hon. Gentleman invites me to stray well outside the scope of the debate, but I take his point on board and will take it back to the Department. My offices speak and meet with the VOA regularly, and I will ensure that that matter is considered.

A specific point on out-of-town car parks was raised. The VOA independently assesses all properties, including out-of-town retail premises, for business rates on the same basis—annual rental value. I assure hon. Members that the rateable values reflect the value of car parking in an out-of-town location, to the extent that it is reflected in rents. I know that there is an issue with some councils seeing car parking in town centres as a cash cow; we have made changes to the rules around the transparency of car parking charges, so that residents can understand fully what councils are doing.

Of course, the Government have already taken action on business rates. We have doubled the level of small business rate relief in England for two and a half years, so the higher level of relief will apply throughout the 2012-13 billing year. We estimate that more than 500,000 businesses in England are benefiting, with approximately a third of a million businesses paying no rates. The measure therefore reduces fixed costs for existing and new small businesses, helping them to make the most of opportunities as the economy returns to growth. It is a useful measure. My hon. Friend the Member for Sherwood (Mr Spencer), who is no longer in his place, mentioned empty shops and start-up ventures. It is an interesting point, which I will take back to the Department to look at.

Through the Localism Act 2011, we simplified the process for claiming small business rate relief; waived £175 million of backdated business rates demands levied on businesses, including some in ports; and gave local authorities wide-ranging discretionary powers to grant business rates discounts. We listened to concerns about the RPI increase for 2012-13, and gave businesses the option of spreading the increase over three years.

As has been mentioned, we are also introducing the new business rates retention scheme. We want to give councils every encouragement to drive growth, so that they fully play their part in growing our economy through the planning system and their other levers. The business rates retention proposals represent a fundamental shift in the way that local authorities are funded. They give councils a strong financial incentive to drive local economic growth and to engage with local businesses to develop a positive approach to growth. Subject to the Local Government Finance Bill receiving Royal Assent, we will introduce the business rates retention scheme in April 2013.

We have taken other steps to boost the high street and growth. We have doubled the number of Portas pilots. Following applications by local MPs, over 300 town teams have signed up to become town team partners, and will benefit from a package of support. In March this year, we announced a £10 million high street innovation fund for the top 100 places most affected by the riots, or with the highest empty shop rates. In August, we announced the £1 million future high street X-fund. For those who have not yet applied, its closing date is 6 December.

We will shortly announce the details of a £500,000 fund to help set up business improvement districts. We will continue to support the high street by working with areas to remove barriers that prevent local high streets from prospering. We will publish a further response to Mary Portas’s review in spring 2013, building on the knowledge from the pilots, experiences across the country, and the progress that we have made on many of the other recommendations in the review since last December.

As was mentioned, next week is the Second Reading of the Growth and Infrastructure Bill, which will help the country to compete on the global stage by setting out a comprehensive series of practical reforms to reduce confusing and overlapping red tape that delays and discourages investment, new infrastructure and job creation. Postponing the revaluation until 2015 in England is the right thing to do.

[Simon Danczuk]

The Minister’s figures confirm that at least 300,000 businesses will pay more than they should in business rates for two years, from 2015 to 2017. Many businesses will have many more than one premises, so we cannot assume that that is 300,000 shops. Is that the right way to run a tax system?

[Brandon Lewis]

The hon. Gentleman omits to point out that 800,000 businesses would have had to pay more, and does not mention the uncertainty that would have been created over the next couple of years while businesses worked through the situation. That is not sensible in the current exceptional economic climate.

We want to provide local firms and local shops, including many of the most disadvantaged, with the certainty that they need to plan, invest and grow. VOA estimates suggest that the change will save 800,000 premises from a tax hike and protect key sectors such as retail. We recognise that regular revaluations are important to maintain up-to-date rates bills, but such immense volatility is not, at this time, in the public interest. Postponing revaluation will provide businesses with a stable economic environment in which to deliver growth.

10:55

Sitting suspended.

Cabling

Tuesday 30th October 2012 Westminster Hall

11:00

[Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Caton. In August, I visited a cable factory in Washington, in my constituency, which supports more than 100 local jobs and is part of a company that employs more than 1,350 people across the UK. It produces some of the highest-quality cabling in the world—the kind of cable that is used in everything from laptops to submarines. I met Paul Atkinson, chief executive officer of the cable company Prysmian UK, to discuss the challenges facing the industry. Despite the fact that his company faces similar economic pressures to many other companies, one of his chief concerns was the issue of counterfeit substandard cabling. I was shocked to discover that the cable that we so often take for granted in our homes, hospitals, schools and even in the Palace of Westminster is largely unregulated and potentially dangerous. Some 20% of all cable in the UK is suspected of being counterfeit and therefore at risk of overheating and emitting toxic fumes.

Electrical fires are soaring in number in parallel with the increase in counterfeit cabling that is being imported into this country. As a result of improper regulation, this unsafe cable is hard to detect and is often installed by professionals who are unaware that it is counterfeit. A council in my local region recently had to reinstall all its newly fitted data cables after it detected, at the last minute, that cheap and dangerous material had been used within the cable. That came at a cost of tens of thousands of pounds, which the council had to bear.

Counterfeit cable not only poses risks to our safety, but is harming the British cable industry, which is a world leader for high-quality cables. Over the past few years, more than 30 producers of safe high-quality cable have been forced out of business at the gain of cut-throat distributors of unsafe and counterfeit cable from overseas. This export-led, globally respected domestic industry will shrink further if we do not act now. The problem of counterfeit cabling could be substantially mitigated by suitable enforcement of basic regulation for the detection of unsafe cables.

The cable industry is not asking for anything other than for the UK to catch up with global standards for regulation, in order to halt the victimisation of British manufacturers and to ensure that our schools, hospitals and homes are safe from the dangers that substandard cables can cause.

Customs and Excise statistics show that the UK has become a global target for distributors of counterfeit and substandard cabling, and it is now estimated that a fifth of all cabling in the UK is suspected to fall into that category, and therefore be potentially dangerous. To put that in perspective, the Olympic venues alone required more than 350 miles of cabling, so if they followed the national trend, that would mean that more than 70 miles of that cabling was counterfeit.

On a national scale, there is potentially hundreds of millions of miles of cable that is not only substandard but potentially life-threatening. That is backed up by the official fire statistics for 2010-11, which show that electrical distribution caused more than 4,000 fires in homes and 3,000 in other buildings.

According to statistics from the Department for Communities and Local Government, fatalities caused by faulty electrical distribution systems have tripled since 2004. The incentive to source cheap cabling has been greatly increased by the dramatic increase in the cost of copper, which now accounts for more than 90% of the total cost of the cable. Therefore, manufacturers of counterfeit cable are able to undercut quality cable by cutting down on the amount of copper they use. However, doing that leads not only to more faults, but to overheating, which dramatically increases the risk of fire. The fire itself is not the only life-threatening risk. Due to the present lack of regulation, substandard cable distributors are also free to cut costs by using cheap material that emits toxic fumes, and which falls below fire-resistant standards. If such cable is used as part of emergency lighting or fire alarm systems, which should function for up to two hours to allow people to escape safely, those systems could fail within minutes, thereby increasing the risk of casualties.

The Minister will share my deep concern that, because of a lack of any real regulation, cables in our schools, homes, and hospitals will almost certainly contain counterfeit cabling, which could lead to deadly consequences.

[Ian Lucas (Wrexham) (Lab)]

I congratulate my hon. Friend on securing this important debate. My father worked in a cabling factory in County Durham for 40 years, and Prysmian is also based in my constituency. She is emphasising a hugely important point. There have been a number of very serious fires that have led to deaths. There was one recently in Prestatyn, in north Wales. This is an urgent problem, which we need to address.

[Mrs Hodgson]

I agree, and I thank my hon. Friend for his contribution. I am so pleased that he was able to come along this morning because he is as passionate as I am about this issue.

In addition to the serious safety issues that we have been discussing, unregulated counterfeit cabling is also undermining British jobs. As I said earlier, more than 100 people are directly employed at the Prysmian factory in Washington, and even more may be employed in my hon. Friend’s constituency in Wrexham. However, high-quality cable manufacturers operating in Britain are struggling to survive because of the unfair competition from counterfeit cables. Britain’s domestic cabling industry is a world leader because of the refusal by its companies to compromise on quality and safety standards. However, that integrity and sense of responsibility to the end user has left the members of that industry under threat from cut-throat distributors of unsafe, substandard products. At a time of rising unemployment, my understanding is that the entire cable industry, which includes manufacturers as well as supply chain jobs and distributors, provides more than 150,000 private sector jobs nationally, and also helps support efforts towards an export-led recovery, with exports totalling more than £300 million. However, those jobs are constantly under threat due to the lack of protection that basic regulation would provide.

The extent of the damage that counterfeit cabling is doing to the British cable industry can be seen clearly in the rapid decline of jobs in the sector over the past 15 years. In 1995, there were 70 domestic cable manufacturing firms, providing 110,000 jobs. Now there are just three cable manufacturing firms, providing 5,000 jobs. All the other manufacturers have fallen victim to cheap and often substandard imports from abroad. By sacrificing product safety and misleading consumers, distributors of dangerous counterfeit cabling are able to undercut UK suppliers, potentially putting more of them out of business. Such manufacturers ceasing operations not only means that jobs are lost, but further increases the market share available for distributors of counterfeit and substandard products to exploit.

The problem of counterfeit cabling risking jobs and lives in Britain can be solved with relatively simple regulation and suitable enforcement. However, the issue has been largely neglected by Government, falling victim, as it has, to being caught between the responsibilities of the Department for Business, Innovation and Skills, and the DCLG. Indeed, I believe that there was some discussion last week about which Department would answer this debate today.

The British cable industry has been clear; it believes that fair competition incentivises innovation and higher standards. I do not for one moment want to stop fair competition in the cable industry, or to stop cable manufactured overseas, whether in Europe or elsewhere, from being imported and distributed in the UK. This is not about doing British manufacturers special favours, even when they employ our constituents. This is about creating a level playing field for competition, based on the fundamental point that cabling is a product that needs to be up to standard because of the potentially fatal consequences if it is not.

British manufacturers, including Prysmian, do not believe that the safety of the British public should be compromised, especially in public buildings such as schools and hospitals. In the present marketplace, however, this belief costs them competitiveness and therefore customers, who are often uneducated about the dangers of counterfeit cables. Consequently it is vital that the tide of counterfeit and dangerous cable is halted and that safety standards are enforced.

Dangerous cable could be tackled by revising legislation to incorporate four checks on the market. First, there should be quality checks on cable at ports of entry, ensuring that products coming into the country are up to the standards that we require of British-made products. Secondly, there should be a requirement that, at the very least, all cable used in public buildings in the UK is third party-certified, meaning that it has been tested and proven to be of the quality that we expect. Thirdly, cable inspection and verification should be added to the list of mandated checks performed by building inspectors, ensuring that any counterfeit product is identified as early as possible, so that it can be replaced. Fourthly and finally, there have to be consequences for those who are found to be endangering life and property knowingly by installing substandard cabling, and at the very least that should mean prosecution for those found to be doing so in public buildings. Similar measures already operate internationally, so implementing them would merely be addressing an anomaly that leaves Britain uniquely vulnerable to the kind of dangerous electrical cabling that causes deaths, casualties and damage to property, while undermining British jobs.

[Ian Lucas]

I am grateful to my hon. Friend for giving way to me again. She has made a compelling case about the dangers of cable that is not health and safety-certified. Does she agree that it is regrettable that we sometimes have soundbites that criticise this type of regulation, whereas in fact it creates an opportunity for good manufacturers who have safe systems in the UK and the absence of such regulation penalises those good manufacturers at the expense of those that do not provide safe cables?

[Mrs Hodgson]

Yes. On that very point, I know that the Minister announced last week that he is going to tackle Europe’s “regulatory machine” and that he is committed to reducing red tape for small and medium-sized businesses. However, I hope he will agree that, as my hon. Friend just said, cabling is very different. I hope he sees that this kind of regulation for cabling would be welcomed and would definitely help British businesses, as well as reducing electrical fires and ultimately saving lives. I look forward to hearing his response to the debate.

11:12

[The Minister of State, Department for Business, Innovation and Skills (Michael Fallon)]

It is a pleasure to serve under your chairmanship, Mr Caton.

I congratulate the hon. Member for Washington and Sunderland West (Mrs Hodgson) on securing the debate and on raising important issues, and I recognise that she has a particular constituency interest in this issue. I also welcome the hon. Member for Wrexham (Ian Lucas) to the debate and welcome the interest that he has shown in it.

I will begin by describing some of the regulatory regimes that electric cables fall under, so that we are clear about them. As far as safety is concerned, there are robust safety regulations that apply to manufacturers, importers, distributors and retailers, which require products to be safe. How do we interpret “safe”? We do so on a case-by-case basis, taking account of good engineering practice, the extent of scientific knowledge, the ability of engineering to provide solutions, and the reasonable expectations of the user of the product, among other factors.

A “safe” product means that a product does not present any risk, or only the minimum risks compatible with its use, consistent with providing a high level of protection for the safety and health of persons. It is important that we distinguish between the requirements of legislation and the requirements of standards. There is no requirement in the legislation for compliance with a standard, and there is a good reason for that. While compliance with a relevant standard provides a presumption that a product is safe, there has to be a route for innovative products and advances in technology. Standards generally cannot prejudge advances in technology, and therefore are amended and updated in the wake of innovation and scientific advances.

I now turn to a specific issue that the hon. Lady raised, which is misusing trade marks to mislead consumers deliberately. Counterfeiting is an issue that the Government take very seriously, because—as she set out very clearly—it threatens legitimate businesses and the economy, and of course it also poses a risk to consumer health and safety, as well as undermining consumer confidence in these products.

The infringement of an intellectual property right is a civil matter. However, the infringement of trade marks can also be a criminal offence. Trading standards officers are primarily responsible for enforcing the criminal IP laws, with support from the police and investigative assistance from the owners of the IP rights. Government and the associated public enforcement organisations continue to engage actively with British businesses to raise the profile of the threat of counterfeit products entering relevant supply chains, including supply chains in the electrical cabling sector. For example, the IP crime toolkit, which was launched by the Intellectual Property Office in November 2011, aims to make businesses more aware of the growing risk from counterfeit goods entering supply chains, and it also gives guidance on how to strengthen and protect IP assets.

There is also legislation for addressing issues relating to falsely described goods, and it is applicable when such goods are supplied to a business or a consumer. The supply of cables that are falsely described by any means to a consumer is likely to be a criminal offence under the Consumer Protection from Unfair Trading Regulations 2008. Businesses enjoy similar protection against misleading advertising and marketing, including false statements, under the Business Protection from Misleading Marketing Regulations 2008. Both of those sets of regulations are enforced by local authority trading standards officers.

I now turn to some of the concerns that the cabling industry has expressed. It initially raised safety concerns about cabling with my Department back in 2009. Those concerns were referred to the Health and Safety Executive, which is the relevant enforcement authority. The HSE then approached my Department for funding for a special project. A special market surveillance exercise undertaken by HSE was agreed, to determine the state of the UK market given the serious concerns that had been raised. That exercise commenced early in 2010.

The market surveillance project had the overall objectives of determining how the cable supply sector was functioning and whether there were any market failures that needed to be addressed. Once the HSE had performed an initial study of how the sector functioned, it was able to proceed to taking samples from across the sector. It had to take a sufficiently large number of samples to determine whether the cables available on the market were safe or not. Those samples were not taken at random; they were a biased selection taken from cables that were considered by HSE inspectors to be the most likely to be non-compliant.

That project has now concluded, but the final report is still to be produced; it is expected very early next year. I understand that the findings of the report will show that, with the exception of one large batch of cable that had copper content that was 50% underweight and of two samples with questionable origin, there was no justification from the other samples that were found for the HSE to remove any product from the market. The samples that were found to be non-compliant were voluntarily removed from the market without any formal action being taken by the HSE.

Part of the administrative requirement of the legislation is for those in the supply chain to be able to provide a copy of the declarations of conformity that the cable complies with the legislation. These declarations were found not to be generally available, but they were provided within the 10 days requested by the HSE. If the HSE had formally requested them, it would have had to allow 21 days for them to be produced, rather than the initial 10 days. The HSE found that some manufacturers outside the EU were reluctant to supply declarations of conformity and that there was evidence of hostility from those manufacturers towards importers who requested the declarations of conformity, however they were supplied. The HSE is not an enforcement authority for counterfeit goods, but it should be reported that it did not identify any counterfeit product during its market surveillance assessment.

While it was assessing the sector, the HSE found that the market is dominated by a small number of importers, most of whom had a low level of awareness of the administrative requirements, although some were fully aware of their obligations. The industry is standards-led, and considers that the standards provide all the protection that it needs. However, it was generally unaware of the general failure to meet the requirements of the standards. The industry also suffers from a poorly developed system of product recall. The HSE has therefore advised that on the basis of its assessment most products on the market are safe. Although they may not always be compliant with the standards with which they are claimed to be compliant, they meet the requirements of the safety legislation.

While carrying out the assessment of the market, the HSE identified a considerable lack of awareness of the administrative requirements of the legislation. It has now put in place measures to increase awareness of them. The measures led to distributors and importers demonstrating a greater understanding of their obligations and of the risks—financial liability and reputational risks—that they expose themselves to. I understand that that has led to a significant improvement of best practice by some of those in the supply chain. The HSE’s recent follow-up visits to a leading UK distributor-importer have verified that it has adopted processes to identify substandard, non-compliant cable before it enters the UK wholesale-domestic market. The HSE will facilitate awareness of that best practice at an event that it is planning, to engage other distributors.

The current HSE assessment of the market demonstrates that most cables on the market are generally safe and that there are robust regulations in place dealing with safety, counterfeiting and false declarations. Traceability is an issue and all cable needs to be marked, but market surveillance hands are tied until the industry puts its house in order on marking. The thorough HSE market surveillance assessment provides a reassuring and clear statement of the market: that it is functioning satisfactorily. There are cases where non-compliant products are identified. Those should be referred on a case-by-case basis to the relevant enforcement authority. In matters of product safety that is the HSE for workplace products and trading standards officers for products supplied to consumers; in relation to false marketing declarations it is trading standards officers for both business-to-business and business-to-consumer transactions; in relation to counterfeit goods, or in cases of suspicion of counterfeiting, evidence should be supplied to trading standards, Her Majesty’s Revenue and Customs and the police.

[Mrs Hodgson]

I have been listening intently to the Minister’s response, as has my hon. Friend the Member for Wrexham (Ian Lucas). So, I am sure, have the industry experts in the business world, who are far more cognisant than I am of the finer points of what he says. I am not an expert in the field, although I am trying to represent my constituents as well as I can on the issue. Will I therefore be able to enter into correspondence with the Minister, for follow-up, if we want to drill down on some of the points in his response?

[Michael Fallon]

I am certainly happy to engage with the hon. Lady in correspondence on any of the technical points I have raised. If anything is not clear I shall get back to her about it. I, too, am not an expert on cabling regulations. The hon. Member for Wrexham may be the only expert in the Chamber—apart from you, Mr Caton. I know that you have some knowledge of the area.

[Ian Lucas]

Although I am a former Minister in the Department, I too have work to do on the matter, and wish the Minister good luck in getting on top of it. He certainly seems on top of the subject today.

[Michael Fallon]

It is kind of the hon. Gentleman to say so. Perhaps it is a process of lifelong learning for all of us.

I do not want to introduce too much levity into the discussion. There are concerns about conformity of the distribution chain with the administrative requirements of the product safety legislation, but the products on the market, which I have accepted may often be non-compliant with the current standards, are generally considered to be adequate for the purpose intended and are safe. However, I assure the hon. Member for Washington and Sunderland West that we take the concerns seriously. We believe that the legislative framework is robust; but I urge her and the hon. Member for Wrexham to report directly to me at the Department any evidence that they have in connection with the points they have made, so that we may look at it. If they have any specific evidence of counterfeiting or false marketing, that should be reported directly to trading standards officers in the specific local authority areas.

11:25

Sitting suspended.

Leeds Children’s Heart Surgery Unit

Tuesday 30th October 2012 Westminster Hall

[Mr Philip Hollobone in the Chair]

14:30

[Stuart Andrew (Pudsey) (Con)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I am grateful to have a further opportunity—you might wonder why we are taking another chance to raise the issue—to discuss the Leeds children’s heart unit. Given that there is a new ministerial team at the Department of Health—I am delighted to welcome the Under-Secretary of State for Health, my hon. Friend the Member for Broxtowe (Anna Soubry) to her new post—and that the decision on the unit has been referred to the Independent Reconfiguration Panel, it is critical that the independent review gets this right. The issues that we have been raising need to be assessed in great detail by the independent panel.

It is important for us to remind ourselves of the key issues. I want to make it crystal clear at the outset that we have always supported the objective of the review. Of course, we all want the best services for our children, and having fewer specialist centres is a principle that we have never doubted. My grave concern is that the review will fail to meet the objectives, particularly in the north of England, subjecting my constituents and those in Yorkshire and Lincolnshire to a worse service than the one that they currently enjoy. That is why I want to outline our concerns.

First, the review has always made it clear that units need to perform 400 operations or more a year. If that is the agreed standard, we must accept that. However, a survey by PricewaterhouseCoopers showed that the majority of patients who live in east, west and south Yorkshire would not travel to Newcastle. Instead they would go to Liverpool, Birmingham, or, in some cases, even to London. Anyone who knows our area knows that that is instinctively the case. Since the decision was made, adverse weather over the past couple of months has caused huge problems on the A1. Would a parent go there or would they choose less problematic routes? The issue is made clear in the analysis. The independent review document states:

“There was more reluctance amongst members of the public to consider travelling to Newcastle as a centre. If the preference of the parents and the public were factored into assumptions of patient flows, they may have implications for projected levels of activity at – in particular – the Newcastle centre.”

What is the review’s answer to the problem? At the decision-making process meeting—a seven-hour meeting to rubber-stamp a decision that clearly had already been made—it was said that patients preferring centres other than Newcastle would be influenced by referring doctors, with the assumption made that they would be pointed to Newcastle. Frankly, the evidence points to the contrary: all 20 referring clinicians in the Leeds network, whose views were never sought by the Safe and Sustainable review, said that they would not refer patients there for treatment.

In addition, the review argued that if 25% of patients from Leeds, Sheffield, Doncaster and Wakefield chose to go to Newcastle, that unit would perform 403 operations a year, conveniently just over the target of 400. That also assumes that 100% of patients in the other remaining postcodes, including Hull and Harrogate, would go to Newcastle. Newcastle can only reach the 400 figure if all the assumptions—that 25% will go from south and west Yorkshire, that clinicians will refer, and that 100% in Harrogate, Hull and elsewhere would use the centre—are correct, but there is no evidence to support such assumptions.

Given the importance of the 400 figure, it is staggering that it has been reached on the basis of assumptions. I know my hon. Friend the Minister was a barrister before entering the House. I wonder how the court would have reacted if she had based her defence or her prosecution on assumptions. That is why I believe the review is flawed. If we are going to change, it must be for a much better service.

That brings me to the issue of co-location. The foundation of the review was the inquiry at Bristol, and ensuring that such events never happen again is crucial. A key recommendation of the inquiry was to have all paediatric services under one roof. The British Congenital Cardiac Association has stated:

“It is important that the centres designated to provide paediatric cardiac surgery must be equipped to deal with all of the needs of increasingly complex patients. For these services at each centre to remain sustainable in the long term, co-location of key clinical services on one site is essential.”

I completely agree with that statement. Indeed, Professor Sir Ian Kennedy, in his report following the Bristol inquiry, stated in recommendation 178:

“Children’s acute hospital services should ideally be located in a children’s hospital, which should be physically as close as possible to an acute general hospital. This should be the preferred model for the future.”

Yet despite Sir Ian’s assessment panel describing the location of key services on a single site as optimal, Sir Ian accepted a watered-down definition of co-location, which allowed Newcastle to be described as a co-located service, and that led to the decision to close Leeds, despite the Paediatric Intensive Care Society’s assertion that it

“would dismiss any suggestion that a service located on another hospital within the same city can be regarded as being equivalent to a service located on the same hospital site.”

What has caused Sir Ian Kennedy to change his mind? Anyone visiting the Leeds unit will know that it is a wonderful, integrated unit. It has all the services that are needed for children with complex and multiple needs. They need paediatricians there with other specialities. On my several visits to that unit, on each occasion I have seen paediatricians coming to help patients with complex needs.

[Philip Davies (Shipley) (Con)]

My hon. Friend has led this campaign in Parliament with his customary charm and tenacity. As ever, he is making an excellent case. The national health service is paid for by the public for the benefit of the public. Ultimately, the services that we provide should be the ones that the public want. MPs from our region, from across the parties, are here today, and it is clear that the people in Yorkshire have confidence in the unit, want it to continue and believe it will offer the best possible treatment. Should that not be one of the most important factors that the Government bear in mind?

[Stuart Andrew]

I am grateful for my hon. Friend’s kind words. It has been a tremendous cross-party campaign. People right across our region have been speaking in high praise of the unit. My hon. Friend is absolutely right that it should be about what patients want. Patient choice is a bedrock of the NHS. I hope that today’s debate will enable us further to put across our grave concerns about the review.

[Julian Smith (Skipton and Ripon) (Con)]

Another concern that people have raised is the initial consultation that took place, especially with regard to the language and translation for a large section of our community who suffer particularly from congenital heart disease. Will my hon. Friend comment on that? Does he think that that issue has been fully addressed thus far in the process?

[Stuart Andrew]

No, I do not. The projections of population growth, particularly in the south Asian community, are a huge issue that has not been fully addressed. I hope that that issue will be taken up by the independent panel when it considers the detail of the decision that was reached.

It would be a backward step for us to go to a unit that was separated from the rest of children’s services by three miles. We have a wonderful unit at Leeds general infirmary, where all the children’s services are under one roof. Staff there talk about the difference between now, and when the unit was at Killingbeck. There were great problems with getting doctors to travel there, even though it was only a couple of miles away. It is unacceptable for our constituents and poorly patients to receive a much lesser overall service, because the rest of the services will be three miles across the city of Newcastle.

A phrase that I have heard a lot in this campaign is, “Bring the doctors to where the patients are and not the other way around.” The review has been inconsistent regarding whether population density matters. The consultation document said that Birmingham gets a high number of referrals because of the large population in its catchment area, and it should therefore remain as a unit, but that simply does not seem to apply to Leeds. Leeds serves a population of some 5.5 million, double the 2.6 million in Newcastle, and projections show that that number will increase. The recent census showed that the population of the north-east had increased by 57,000, compared with an increase of 300,000 in Yorkshire, so surely we should put the services where the population is, and where it is growing.

The health impact assessment stated that options G and I were the only ones to induce few negative impacts—option G being the one that includes Leeds—and it admitted that option B would have a more negative impact than option G. That information was released only at the meeting on 4 July.

I want to talk about public opinion because, as my hon. Friend the Member for Shipley (Philip Davies) mentioned, support for the campaign has been phenomenal. Some 600,000 people have signed a petition, which shows the strength of feeling in our area, but those signatures were counted as just one response, while 22,000 separate text messages in support of Birmingham were counted as 22,000 separate responses. The NHS constitution states that the NHS is guided by several key principles, one of which is:

“NHS services must reflect the needs and preference of patients, their families and their carers. Patients, with their families and carers, where appropriate, will be involved in and consulted on all decisions about their care and treatment.”

The fact that so many people felt compelled to sign the petition shows the strength of feeling that they have.

I have spent a great deal of time in the Leeds unit, speaking to families that use it. One of them is the family of one-month-old Lauren, who had problems with feeding and was referred to the Airedale hospital when she was approximately one week old. A heart problem was then suspected, and she was referred to Leeds general infirmary, which has strong links with Airedale. She was transferred to LGI through Embrace, the Yorkshire and Humber specialist ambulance service—a service that does not exist in Newcastle—and it took four hours to get the baby in a stable enough position to undergo the journey to Leeds. Imagine expecting that child to go all the way to Newcastle. Her mum, Sara, said that she could not understand why, given the size of the population in Leeds and the surrounding areas, as compared to the size of the population in Newcastle, it was contemplated making people travel further and separating them from their often crucial family support. I know from my time at Martin House children’s hospice how important it is to have family support close by. The patients are in incredibly stressful situations, and it is critical that others can share in the care and visit the children.

[Julian Smith]

What assurances has my hon. Friend had regarding ambulance services? He is right that Embrace, the Leeds service that looks after children in getting them from home to hospital, is second to none. How will Newcastle get anywhere near that quality of service in the time scale required?

[Stuart Andrew]

The answer is that I do not know. I have not been given any assurances that that will happen, which again highlights the crucial problem with the decision: we will be subjecting our constituents to a lesser service.

I spoke to another family at the unit. Libby was diagnosed at 20 weeks with complex heart problems, and her mum was referred for the rest of her antenatal care to LGI, where the baby was delivered; that again demonstrates the crucial co-location of services. It was clear that the daughter needed treatment immediately after birth, and at six days old she had her first of many operations. As she has complex medical needs, she has also needed support from the paediatric neurology and renal teams, and all those services are under one roof, which provides first-class care. My final example is of a child who had an operation in Leeds at 18 months. All the care was then delivered in Barnsley by doctors from Leeds. Leeds doctors have been out working in all the towns and cities across Yorkshire, at 17 different locations, over the past decade. We have a well-established network of services. Those are just a few examples of the kind of impact that the proposal could have on any of our families.

[Fabian Hamilton (Leeds North East) (Lab)]

I congratulate the hon. Gentleman on securing the debate, which, as he rightly points out, is extremely important. Does he agree that it is not just the children’s congenital heart problem services that serve us so well at Leeds general infirmary, but the post-16 services, which the review did not take into account? Does he also agree that Leeds is perhaps the leading centre in the country for training post-16 congenital heart problem surgeons in what is a valuable and important skill?

[Stuart Andrew]

The hon. Gentleman makes an absolutely first-class point. Indeed, I think we have all asked the question: why is the review into children’s services being held separately from that into adults’ services? It is bizarre. We know that the surgeons operating on adults are often the same people who operate on children. We have yet to get a sufficient explanation of why the reviews have not been run in tandem, and we expect, or at least hope, that the Independent Reconfiguration Panel will consider that issue.

That brings me on to my next point. I wholeheartedly welcome the fact that the Secretary of State has decided to refer the decision to the Independent Reconfiguration Panel—that is great news—but it is absolutely crucial that we get the decision right. There is no point in simply reviewing the decision; we want the panel to consider the whole process, right down to the information that was used at the very beginning regarding what the services were like at the different units. That must include the scoring.

[Hilary Benn (Leeds Central) (Lab)]

I echo other Members’ compliments about the force of the hon. Gentleman’s case. The review, if it is about anything, must be about the right clinical outcomes for children. That is why we are all here. We are all so passionate about the Leeds children’s heart surgery unit, which I have the privilege to represent. Will he confirm that despite the impression that is being given in some quarters, no assessment of the relative clinical effectiveness of the units considered in the review has been undertaken? Does he agree that the independent review must do that, as we all believe that it would lead to the decision being overturned?

[Stuart Andrew]

The right hon. Gentleman is absolutely right. He makes a clever and important point, because that is the foundation of the decision, and the information either does not exist or is incorrect. I want a root-and-branch review of the decision and all the information that was at the disposal of the Safe and Sustainable review team. I hope we can get an assurance today that the panel will do that.

There are further problems with the decision-making process. The joint committee of primary care trusts is still not disclosing information requested by the joint health and overview scrutiny committee in our area, including the agendas, minutes and reports of several meetings material to the JCPCT decision. There is also no evidence that the joint health and overview scrutiny committee’s report was even discussed by the JCPCT. The JCPCT has refused to disclose the breakdown of the Kennedy scores awarded to each children’s heart surgery unit by the panel. The value of the total scores, which are the supposed measure of quality, could neither be understood nor scrutinised.

I think we all believe that the JCPCT has misused the Kennedy scores. The JCPCT requested not to be shown the breakdown of the Kennedy scores, which raises many questions about the JCPCT’s ability to make an informed decision. The Kennedy scores were not prepared for the purposes of comparing one centre with another, yet a ranking of the units by total score was published. The scores were misused as indicators of quality, even though the scores did not assess units on what most of us would regard as measures of quality, such as clinical effectiveness, safety and patient experience.

The total unit score was given as 401 for Leeds and 425 for Newcastle. Those scores were published with the independent expert panel’s report in 2010. According to the first breakdown of the total scores, however, which was only released after the JCPCT made its decision, the Leeds unit gets 414 points and the Newcastle unit gets 421 points. Despite the enormity of the review, a basic mistake appears to have been made in the calculation. That matters because, in the eyes of the JCPCT, which saw only total scores, the advantage of the Newcastle unit was more than trebled from seven points to 24. When that was pointed out to the JCPCT, a second set of sub-scores was published that still did not add up to the original scores of 401 for Leeds and 425 for Newcastle; it stated that the Leeds unit outscored Newcastle on the core clinical standards used by Professor Kennedy by 347 points to 336. On care quality, Leeds is ahead; Newcastle outscores Leeds only because of the addition of leadership and vision standards, which are non-clinical standards covering IT and business strategy, working practices, and so on, that were developed by commissioners, not clinicians.

When the fact that Leeds outscores Newcastle on core clinical standards was pointed out to the JCPCT by the Yorkshire and Humber joint health and overview scrutiny committee, a third set of sub-scores was published, with the dubious claim that they were the raw Kennedy scores. The scores did add up to the original 401 for Leeds and 425 for Newcastle, but, mystifyingly, they now put Newcastle ahead of Leeds on core clinical standards. It is unclear which of those different sets of scores was used by the JCPCT because they give such different impressions.

The Kennedy scores were subject to a weighting system that disproportionately emphasised certain aspects of the assessment in a way that produced misleading results when used in a comparative process. No explanation was given for the way the weightings were worked out. I could address further issues, but I am aware that other hon. Members want to take part in this debate.

We suggested that the JCPCT’s decision be implemented elsewhere, but that in north-east England, both Leeds and Newcastle remain open and that the decision be delayed until April 2014. That would give an opportunity for patient choice and for parents to consider which centre they want to use, as is their constitutional right. By the end of that period, each centre would have to demonstrate that it is fully compliant with all the standards set by the Safe and Sustainable review. The judicial action brought against the JCPCT by Save Our Surgery might then cease; that would avoid the risk of sinking the review in its entirety. Leeds and Newcastle would have the opportunity to demonstrate their compliance with Safe and Sustainable standards. Less controversial decisions taken by the JCPCT could proceed elsewhere in the country, and the Government would be shown to be listening to the concerns of patients. That would give a clear message from the Department of Health that patient choice comes ahead of professional convenience. We made that suggestion, and it was rejected out of hand in no time at all. It is a sensible proposal for a solution that would allow us the very best services for our children and young people, as evidenced by where people go and what services they want.

Finally, I attended last week’s Westminster Hall debate on the Leicester unit. My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) summed up the debate well. There is no point in my trying to come up with a fancier conclusion, so I will do him the honour of quoting what he said:

“The House does itself no great service if it shilly-shallies around process and avoids the question. As Members of Parliament, we must ensure that the question is put…The Secretary of State has the levers of power in this question and he must pull them—he must exercise them—and make a decision…I do not care who made the decision or how the dainty route was created to get to it. We all know that the current decision is wrong and needs to be dealt with.”—[Official Report, 22 October 2012; Vol. 551, c. 188WH.]

[Several hon. Members]

rose—

[Mr Philip Hollobone (in the Chair)]

I am just checking that the seven Members standing match the seven names in front of me, and they do tally. We have 45 minutes until I call the Opposition Front-Bench spokesman, which gives you about six minutes each. I cannot enforce that, but I urge Members to stick to six minutes so that everyone can get in. To be helpful, I will read out the batting order: Nic Dakin, Greg Mulholland, George Mudie, Martin Vickers, Julian Sturdy, David Ward and Andrew Jones.

14:58

[Nic Dakin (Scunthorpe) (Lab)]

Thank you, Mr Hollobone. That is very helpful, as your chairmanship always is. It is a pleasure to serve under your chairmanship.

I welcome the Minister to her post, and I congratulate the hon. Member for Pudsey (Stuart Andrew) on securing this debate. His cross-party and cross-regional leadership on this matter has been a credit to him and the region, and it is a pleasure to have worked with him. I hope we have a satisfactory outcome. He has spelled out in clinical detail the key issues in this case: the need to get the right clinical outcomes; the discrepancies in the clinical information issued throughout the process; the number of operations necessary to secure a unit; and the difficulties in securing that number of operations if Leeds closes and other centres are expected to receive its patients, given that if there is patient choice, it is clear that patients from the area that I represent, Scunthorpe, will probably go south, rather than north, to access services.

The hon. Gentleman has reminded us of the largest petition that I can remember in the region, which some 600,000 people signed at fairs and civic events in my constituency and, presumably, across the whole region. That was an active process in which people were engaged and supportive. Counting that as one response is not giving the public view the weight that it should have.

The villages and towns of the area that I represent will always be peripheral and on the edge. People from our area must travel to access services. It is interesting to note their concerns. I will refer to a couple of correspondents, because theirs are the voices of which we need to be reminded, and their observations echo the points made by the hon. Member for Pudsey. One correspondent said:

“All of us heart families, as you can imagine, are devastated…Please can you review this decision and hear our views?”

Behind the petition signed by 600,000 people are many people’s views. Another correspondent said:

“Our daughter is diagnosed with a rare condition, truncus arteriosus. She had major open heart surgery in July 2011 at Leeds general infirmary. Naturally, we were devastated with the diagnosis, coming to terms with it and going through her operation and hospital stay. The service they provide at Leeds is…at its best. I feel that our daughter is in extremely safe hands there. The staff on ward 4, ward 10 and HDU provide the best quality of care. The cardiologists and surgeons are truly amazing in the work they do. Whilst our daughter was in hospital, this was a terrifying time for us. Leeds is a good hour’s drive away, which is bearable in this situation”,

but

“it could endanger lives if people have to travel further, for example those babies born who need emergency heart surgery. I have read so many comments on the support group page that if Leeds surgery closed and they had had to travel further afield, their baby would not have survived the journey.

All the facilities are on site at Leeds general infirmary, i.e. X-rays and other investigations that need to be done prior to operation. Again, if Leeds was closed and we had to go to Newcastle, my understanding is the checks have to be done at other hospitals, again endangering lives in those more serious cases.”

Another constituent of mine says:

“I would now like to explain how the threatened closure affects my daughter. I have a 5 year old daughter who has 22q deletion…She has a number of complex, life-affecting and life-threatening health conditions, including serious congenital heart defects, as well as learning and communication problems. She is a pupil at St Luke’s school in Scunthorpe. Routine antenatal appointments at Scunthorpe failed to pick up her problems; an additional late scan there found a problem, and antenatal care was then transferred to Leeds.

Leeds general infirmary provides many services under one roof. During her stay on the cardiac ward, I required treatment due to birth complications and had access to the midwifery team and appropriate treatment. I was unable to walk following the birth for several days, and was able to stay on the heart ward with food provided and then in family accommodation.”

That emphasises the proximity of all services, and how that affects the well-being of not only heart patients, but mothers and other family members.

I take note of your instructions and encouragement, Mr Hollobone. I feel that I have reinforced the issues that were raised in the excellent speech made by the hon. Member for Pudsey, and I have added a couple of illustrations from my constituency that underline the point.

15:03

[Greg Mulholland (Leeds North West) (LD)]

I congratulate my neighbour, my hon. Friend the Member for Pudsey (Stuart Andrew), on everything that he has done and on securing this debate. It is also good to have four other parliamentary neighbours here, as well as many other colleagues from our region. That speaks for itself.

I put on record my regret that we have still not had a full and proper debate on the Floor of the House of Commons. Six minutes is not enough for me or other hon. Members to state our serious technical concerns about a deeply flawed process, and I do not believe that this debate should be seen as a substitute. However, I thank the Minister and her colleagues for doing the right thing in listening and correctly, considering the huge concerns, referring the decision to the Independent Configuration Panel. That is clearly essential. I am pleased that she and her colleagues did so, considering the outrageous protestations from the Joint Committee of Primary Care Trusts and, I am afraid, from other organisations trying to stop the process and prevent what is clearly essential democratic scrutiny. That in itself is a matter that should be taken further. It is a disgraceful thing for any body involved in the decision to seek to do.

Briefly, in the time that I have, I will raise with the Minister the slight concern also mentioned by the joint health overview and scrutiny committee for Yorkshire and the Humber. We want an assurance—today is a good opportunity—that the terms of reference for the Independent Reconfiguration Panel will not be restrictive. Otherwise, there is a danger that it could simply repeat the same deeply flawed assessment process that my hon. Friend the Member for Pudsey eloquently described. Will the Minister ensure that that is not the case, and that the IRP can properly and fully consider the decision?

We have all heard what a blow the decision has been to the wonderful staff who work at the unit and, most importantly, to the families and children involved, as well as to people in the region and beyond who rely on the unit or could do so in future. We must be clear on this point, which I want the Minister to take away. Of course we have all heard the stories of the awful situation in which families and children have found themselves. Each and every one is heart-rending, and they deserve to be listened to. However, we must also accept that the same stories would apply to any of the units in the review, so that is not the point. The point is a cold, hard one: by the review’s own criteria for bigger and smaller units, the JCPCT has made an absurd decision in favouring the closure of Leeds.

The JCPCT has demonstrated a clear bias all the way through. I am sorry to have to say it, but the JCPCT’s decision was clearly a stitch-up. If it had followed its criteria properly and gone through the process following the criteria set down by the previous Government, it could not have failed to argue, given the troubled times and all the other things that we have heard about, that Leeds must be a fully functioning bigger unit, yet it has not. I believe that investigations are still needed.

It is utterly disgraceful how the JCPCT and others have sought to avoid proper scrutiny. To back up what my hon. Friend the Member for Pudsey said, the JCPCT has continued to refuse to provide all the information requested of it by the body charged in the health service to scrutinise it. That is not only disgraceful but quite sinister, and I ask the Minister to look into it properly. If the JCPCT will not release its reports and minutes properly under the Freedom of Information Act, it must say why, but it simply has not done so. I pay tribute to Councillor Illingworth, his predecessor and the body of councillors for all the good work that they have done. They are being refused the information that they need to do their job. That is not acceptable, and I want it to be taken up properly with the JCPCT.

The other issue that has not been raised so far—none of us wants to repeat what has been said—and that I want to bring to the Minister’s attention is the absolute nonsense that despite the geography of the whole country, the Yorkhill unit was not included. There is already a flow of cross-border patients from the north of England to Scotland and the other way around. It is somewhat ironic that Sir Ian Kennedy, who chaired the Safe and Sustainable review panel in England and Wales, also separately commissioned a review by NHS Scotland of Yorkhill. He said:

“The panel had significant concerns about important aspects of the service in the surgical unit...Of most concern was a lack of leadership and coherent team working. Also of concern was a sense that the provision of paediatric intensive care may be unsafe if critical staffing problems are not addressed.”

He concluded:

“The panel was of the view that urgent remedial action is required in PICU to prevent care from becoming unsafe.”

I have to say to the Minister that it is nonsensical as well as dangerous for Yorkhill not to be included in the Safe and Sustainable review. If it had been, the only logical conclusion would have been to keep the Leeds unit open, and to allow the patients in the north of England and south of Scotland to choose between Leeds and Glasgow.

There is a concern about the whole review itself. The Scottish Government—we accept that there is devolution—have now decided that the Glasgow unit does not have to comply with the magical 400 cases per year, but that three surgeons performing 300 operations is enough to be safe.

I am sorry about the time, but as I have made clear, I object to the fact that we have not had a proper debate so far on this serious matter. I will be as brief as I can.

It is simply not acceptable to have one rule for children in Scotland—to say that it is safe to have 300 units—and to say to the people of Leeds that we have to close a perfectly safe unit on the basis of a number that has been dreamt up in Whitehall. That is inconsistent. Yes, there is devolution and we may even have independence, but even then we would still have people crossing the border to access surgery.

This simply does not make sense. It is dishonest. I am afraid to say that the Little Hearts Matter charity has been quite dishonest, on the one hand saying that Safe and Sustainable is the right way forward, and on the other saying that it is okay for Yorkhill to carry on performing only 300 operations per year. That simply does not make sense.

My final question to the Minister is one that has not been answered. If Leeds does close, will we be told how much it will cost to close it? It will cost an awful lot to close and to reconfigure the services. We have not had that figure yet. If we do get it, I think people will be even more angry about the decision to close a much-needed, perfectly safe and excellent children’s heart surgery unit.

15:12

[Mr George Mudie (Leeds East) (Lab)]

I join with hon. Members in congratulating the hon. Member for Pudsey (Stuart Andrew) on securing the debate and on the way that he has handled the campaign. He has been inclusive. He has handled it sympathetically and intelligently, and he has worked with a very good campaign in Leeds. I hope it is successful above all for the children’s unit, but it would also reflect on the hon. Gentleman. I echo his comments about the Minister. I am delighted to see an independent mind in the Department of Health. It makes such a difference, but I wonder how long it will be before those officials weigh down on her.

As a layman, it seems to me incredible to place such an important facility in Newcastle rather than West Yorkshire. Some 5.5 million people are served by the Leeds unit and 2.5 million served by Newcastle. By 2030, the population of Yorkshire and Humberside will increase by 16.5%, up to 6.2 million people. Newcastle’s will increase by only half of that—8.2%. If those figures are challenged as being only projections, in the last census Yorkshire and Humberside went up by 300,000 and the north-east by 57,000. If we are talking about placing a strategically important, sensitive service, Newcastle is not the place where the conurbations and numbers are.

When the subject was first debated, I argued in the House that we should look at Newcastle in a different light. I hate the idea of us and Yorkshire saying, “Our kids cannot go 100 miles because of this, that and the other,” but we are then put in this corner of arguing that Newcastle kids can come down and do the same thing and it is okay for them. The hon. Member for Leeds North West (Greg Mulholland) said that Scotland is content with the numbers. If the people of Newcastle wanted that unit and were prepared to have that unit, I think there is a case for leaving it, because the geographical distances cause a great problem.

In Leeds, 23% of the children are from an Asian ethnic background. In Yorkshire and Humberside, that figure is 6.2%, or 326,000. In the north-east, it is less than 70,000. I had to fight to close the South Shields immigration tribunal centre and open the Bradford centre, because I was aghast at the cost for people from ethnic minorities—the Bangladeshi community are among the poorest in the city—having to travel all that way. That is compounded when going to sit beside a child who has had surgery, and who is recovering or not recovering. The time and expense is a factor that does not seem to have been considered.

This is not the time—perhaps it is appropriate: more publicity and so on—to re-argue the case. The case has been argued. The case is stated. It is how this review body carries out the review. There are fears that the panel will not address the accuracy, objectivity and rigour in the assessment processes throughout the Safe and Sustainable review, and that impact assessments carried out by independent bodies were all ignored. The Minister said that it would be for the review body to decide the full extent of its review of all the decisions that have been made. That seems to suggest—we all agree with this—that the finding of the panel will be independent but the evidence it chooses to consider will be its own choice. I seek assurances from the Minister that she shares my view that all the facts that were part of the eventual decision—all the facts—should be investigated, and in particular, the specific facts raised in relation to Leeds and Leicester.

The hon. Member for Pudsey asked the Department of Health to ensure that the JCPCT released non-confidential information to the joint health and overview scrutiny committee. The Minister replied with the unsatisfactory,

“it is for the JCPCT to decide what information to release about the review and we are unable to comment further.”

Why did the Minister take this clearly unsatisfactory line? When she replies, I would like her to indicate whether she or her colleagues even asked the panel to release non-confidential evidence and, if they did not, why not.

15:18

[Martin Vickers (Cleethorpes) (Con)]

It is a pleasure to take part in a debate under your chairmanship again, Mr Hollobone. I, too, congratulate my hon. Friend the Member for Pudsey (Stuart Andrew). This is something of an action replay, not only for you, Mr Hollobone—you were in the Chair last week for the debate on Glenfield hospital in Leicester—but for the Minister. I apologise to her that some of the points that I am going to press her on now are identical to those that I raised last week. One is the point about distance.

It is noticeable that three out of the four representatives from northern Lincolnshire are here to take part in the debate. We are the remotest part of the area served by the hospital. That does not just present problems for people visiting. As we have heard in previous debates and meetings, getting babies to a unit has actually made the difference between life and death, and that cannot be ignored. In the Cleethorpes area, there are a large number of parents and grandparents whose children have received treatment here. We held a public meeting in July and the strength of opinion was evident.

In last week’s debate on the Leicester unit I was slightly disappointed by the Minister’s response. I appreciate that she is walking a tightrope, but she is noted for being an independent voice. She showed signs of being sucked into the departmental bureaucratic nonsense that we often hear, but I am sure she will rectify that in half an hour’s time. Commenting in her reply on something that I said, she made the perfectly valid point that in cases of the kind that we are considering we want

“fewer, but much bigger units.”—[Official Report, 22 October 2012; Vol. 551, c. 186WH.]

That is the opinion of some experts, but equally, of course, other experts disagree. If we are to be ruled by expert opinion, there are two possibilities. One is that we pack up and go home, because we are superfluous. The other is that because experts always disagree, someone democratically accountable is needed to arbitrate between them. My hon. Friend the Member for Brigg and Goole (Andrew Percy) wishes to intervene, as usual.

[Andrew Percy (Brigg and Goole) (Con)]

I want to intervene to defend the Minister. My hon. Friend is entirely right about the geographical problems in our area; but even if we accept the argument that we need bigger units, is not the core issue the fact that the population—the patient base—is in our region, not in the north-east? If we must go along this line—let us assume that we must—we should move the doctors to where the patients are, not the other way around.

[Martin Vickers]

As usual, my hon. Friend and neighbour is correct. Because of the remoteness and so on, the assumption that all patients in northern Lincolnshire will transfer to Newcastle will simply not be borne out. They will choose alternatives and I suggest that most will gravitate south. Therefore the Newcastle target of 403 will not be achieved.

There are expert opinions on both sides of the argument. The significant point is that the parents and grandparents of the children who receive the treatment are not convinced about the alternatives, because they have seen surgeons and other experts in Leeds performing miracles on their children with modern medical technology. That is their doubt: they do not have confidence in the alternatives when they have seen the Leeds centre of excellence in action.

My hon. Friend the Member for Pudsey stole a line from me because I too was going to quote the point that my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) made in last week’s debate. I will take another line from his speech:

“The Secretary of State has the levers of power in this question and he must pull them—he must exercise them”.—[Official Report, 22 October 2012; Vol. 551, c. 188WH.]

That is what we expect. We do not want the question shuffled off to a panel of experts, with automatic acceptance of what they say. Different experts come up with different decisions.

Time is pressing. In Leeds we have a centre of excellence. It deserves our support, and already has the support of those we represent. I am sure that the Minister and the Secretary of State would not want to be responsible for destroying it.

[Mr Philip Hollobone (in the Chair)]

If the final three hon. Members who want to speak in the debate take five minutes, they will all get in.

15:23

[Julian Sturdy (York Outer) (Con)]

It is a pleasure to serve under your chairmanship this afternoon, Mr Hollobone. I congratulate my hon. Friend the Member for Pudsey (Stuart Andrew) on securing this important debate. He has been a champion of the children’s heart unit in Leeds, and I know that the staff, and, most importantly, the young patients, appreciate all that he does to lead the campaign in Westminster to save it from closure. It is a testament to the campaign that so many hon. Members from across the House are here to support it.

The debate over the Safe and Sustainable review has been going on for months. At each stage I have openly supported the need for the review. We must always strive to improve clinical standards in the health service. That is right; and it is right that the responsibility for treating children’s heart problems should be transferred to units that can offer the outstanding treatment that all affected children and their families deserve. The families of those children would not want anything else. I am a parent and understand it completely. Indeed, my support for the Leeds children’s heart unit is based not simply on close geographical links to my constituency or the wider region that it serves; it is based on the fact that the unit offers superb clinical outcomes for young patients. Indeed, as other hon. Members have mentioned, it scores higher on the JCPCT’s core clinical standards than the preferred option for the north-east. Core clinical standards should be combined with core statistics from the local area, too. More than 600,000 people have signed a local petition demanding that the Leeds unit should remain open. Leeds serves a population of 5.5 million, and 14 million are within two hours of the city. That is a catchment area far larger than those of other units.

Throughout the saga, I have been reluctant to compare the Leeds unit directly with others, particularly Newcastle.

15:25

Sitting suspended for a Division in the House.

15:40

On resuming—

[Mr Philip Hollobone (in the Chair)]

Order. Mr Sturdy has about three minutes remaining.

[Julian Sturdy]

Thank you, Mr Hollobone. As I was saying, throughout this saga I have been reluctant to compare the Leeds unit directly with others, in particular Newcastle’s. My intention is not to criticise the Newcastle unit, which has also carried out great work, saving many young lives over a number of years. Rather, my belief continues to be that the Leeds unit has always had the strengths to merit its survival without such comparisons. Put simply, its own case is strong enough. That is my message to the Minister today, and it was also put eloquently by my hon. Friend the Member for Pudsey.

The single biggest failing in the consultation has been the flawed decision-making process of the Joint Committee of Primary Care Trusts, from the lack of weight given to transport and travel times, and the population that centres such as Leeds serve, to the true co-location of services. There has also been a lack of clarity over the terms of the review, and the failure of the JCPCT to release the information and evidence behind its decision is only adding to the controversy and suspicion. Without being able to break down the scores awarded to each children’s heart surgery unit by Professor Sir Ian Kennedy’s assessment panel, the decision-making process lacks basic transparency and scrutiny.

Throughout York there exists huge public interest in this ongoing and disruptive issue. I am particularly concerned for the families of affected children in York who now face the problem of having to travel to other areas for treatment—I stress “other areas”. The Minister must be under no illusion that the families and children displaced to Newcastle if Leeds closes will not automatically head north. They will disperse to centres throughout the country, and we must not lose sight of that.

In conclusion, the Save our Surgery campaign has suggested a balanced solution to the current dispute, as set out by my hon. Friend the Member for Pudsey. It suggests that the decision should be implemented in full throughout the country, but delayed in the north-east until April 2014. That window of opportunity could then be used to clarify the figures and findings of the JCPCT, allowing both affected units to demonstrate their capacity and capability on a level playing field.

I am delighted that since the election, the Government have worked to make health services more representative and more responsive to local people. I urge the Minister to continue that fine work by listening to the concerns of patients and residents in Yorkshire and taking on board and responding positively to the Save our Surgery campaign to save the children’s heart surgery unit in Leeds from an unjust and ill-informed closure.

15:43

[Mr David Ward (Bradford East) (LD)]

I add my thanks and compliments to my hon. Friend the Member for Pudsey (Stuart Andrew) and all hon. Members who have engaged in this debate. The brevity of my thanks and congratulations in no way reflects my sincerity.

I want to make a brief point about where I believe responsibility for the decision lies. The Health and Social Care Act 2012 contains a contentious element concerning the Secretary of State. The contentious Bill was debated at length in the Lords, and in the Commons, but it remains within the legislation that the Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England. That is where I believe responsibility for the final decision should lie.

I turn to local circumstances. Most people will be aware that Bradford has the fastest-growing young population outside London. It has grown by 25% during the past 10 years. The issue is not simply the large number of young people in the area, but the incidence of the ailments that must be dealt with. As was said, 23% of Leeds cardiac surgery patients are south Asian, which is 6% of the population in the catchment area as a whole, but 23% are children on cardiac wards. Many come from Bradford and south Leeds—about 90 a year, and the number is increasing. Proportionately, those children have far more complex bowel deformities and facial deformities such as cleft lip and palate, and can be treated under one roof—that is the key—only at Leeds children’s hospital.

I am sorry that the hon. Member for Bradford West (George Galloway) is not here. That is not surprising but it is a shame because two of the constituencies in Bradford are in the top 3% in terms of deprivation and unemployment in the country. Bradford is generally a community that is less well off than average, and people would face particular difficulties in having to travel more than 100 miles further, not only because of the cost of travel and accommodation, but because of lost income from having to be away from work to be with their children. Bearing in mind what I said about incidence, it does not make sense to move the children’s heart surgery unit away from the community that is statistically more likely to need it.

Finally, much has been said about the flawed process in the analysis, but I want to talk about the flawed process of the consultation. The review did not have any translated documentation. Of the families attending the unit, 23% speak Urdu at home. Translated copies were requested, and a small number finally arrived, but they arrived three months after the consultation had started. The translation was largely unreadable in Urdu because italics were used for quotes. The Safe and Sustainable review tried to rectify that by holding separate events for black and minority ethnic participants, but they were told that that community would not travel to Newcastle. They were clearly given that strong message. The community indicated that to the review team, and it was shown clearly in the PricewaterhouseCoopers analysis and in a Mott MacDonald study, which stated that children from that community would be worse off and would not travel north.

The message has been consistently clear. Unfortunately, there has been an unwillingness to listen to that message, and I hope the Minister has taken it on board now. The community has largely been ignored in the process, and that shows that the process outlined by my hon. Friend the Member for Pudsey and others was flawed not only in its methodology, but in the consultation exercise.

15:47

[Andrew Jones (Harrogate and Knaresborough) (Con)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I add my congratulations to my hon. Friend the Member for Pudsey (Stuart Andrew) on securing this debate and providing very effective team leadership that has crossed parties and brought us all together in support of this unit. Teams need leaders, and he has been a very effective one.

I am aware of the time, but I want to say a few words. I welcome the decision to have an independent review of the Safe and Sustainable process. I do not think it was wrong; it was right in principle, and none of us would want a repeat of the Bristol scandal, but the highly unexpected decision surprised and disappointed me. I did not expect the Leeds unit to be rejected in favour of Newcastle.

Colleagues have explored some of the arguments, and my hon. Friend the Member for Pudsey detailed the excellent clinical standards in Leeds, and compared them with those of Newcastle. This is not a Leeds versus Newcastle fight. We must focus on the process and recognise that both units have merit, and both have patients with heart-rending stories. We need to look at how we take this forward to deliver the best for patients. In Leeds, we have a unit that offers excellence. The question in the review is about location, and in my opinion, that is where the Leeds unit should have scored particularly highly. It is also where the independent review needs to focus.

Colleagues have mentioned the 5.5 million people in our area, and compared that number with the numbers in the north-east, but transport links are also an issue. Leeds has good transport links, not only from north to south, but from east to west, and the key point is that the review proposed that 100% of people in the Harrogate postcode should now travel north to Newcastle. It assumes that everybody will do that, but I want to share with colleagues that the feedback from those in the Harrogate and Knaresborough postcodes—I acknowledge that that area stretches beyond the Harrogate and Knaresborough constituency—is that that is nonsense. It is absolutely ridiculous; they simply will not do it. Bear in mind that the geography suggests that if anybody is going to do it, it should be those in the Harrogate and Knaresborough constituency, because we are already 15 to 20 miles north of Leeds, and therefore 15 to 20 miles nearer Newcastle.

The impact of population numbers, and travel times and patterns, simply needs far more weight in the review. I want to see the Leeds unit continue its excellent work, serving the people of Yorkshire and beyond, but as we take the review forward, correct weighting needs to be given to the important factors of travel time and population numbers. I hope that the Minister hears that point today, and that we do not start viewing this as a Leeds versus Newcastle contest. We should explore the opportunities for co-location and for a child-driven service.

15:51

[Andrew Gwynne (Denton and Reddish) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I congratulate the hon. Member for Pudsey (Stuart Andrew) on securing the debate, and on the way in which he and other Members across the House have put their case. The issues surrounding Leeds children’s heart surgery unit are important and certainly merit our debate. I also take the point made by the hon. Member for Leeds North West (Greg Mulholland) that a wider debate on the Floor of the House may be warranted.

I take this opportunity to pay tribute to the dedicated NHS staff who work in children’s heart services, both in Leeds and across the country. We are all incredibly grateful for the tremendous job that they do, more often than not in complex, difficult circumstances.

Clinicians and professional bodies, including the Royal College of Nursing and the Royal College of Paediatrics and Child Health, have been clear that children’s heart services need to change. Surgeons are too thinly spread, and services have grown in an ad hoc manner in England, which, to be fair, the hon. Member for Pudsey recognised in his opening speech. Changing how we provide any hospital service is difficult, but when changes are necessary to improve patient care, as they may be for children’s heart services, politicians on both sides of the House should be prepared to listen to that argument and, if necessary, support it.

I know, however, that there have been real concerns and a great deal of protest in the communities surrounding the unit at Leeds general infirmary, particularly about the plans to close it. A motion of support from Leeds city council has been supported by people from across the political spectrum in the city. There has also been a large protest in Millennium square in Leeds, where, I am informed, over 3,000 protestors were joined by local MPs, parents and nurses to campaign to prevent the closure.

As we have heard today, there are similar concerns about plans to close the Glenfield hospital in Leicester, and the Royal Brompton in Chelsea, west London. That could mean that in future, children’s heart surgery would remain at the London children’s hospitals, and in Southampton, Birmingham, Bristol, Newcastle and Liverpool. Although the Opposition support the principle of fewer, more specialist centres, we have concerns about the location of the selected sites, which would leave a huge swathe of the east of England, from Newcastle right down to London, potentially without a centre.

As we have heard, the unit based at Leeds general infirmary serves the 5.5 million residents of Yorkshire and the Humber, and performs 360 operations a year, done by three surgeons. We have heard, too, that there are concerns that the closure of the unit will leave millions of people in the region without local access to the children’s heart surgery expertise that currently exists in Yorkshire and the Humber at Leeds. The local Save Our Surgery campaign group, under the Children’s Heart Surgery Fund, believes that families from Yorkshire, north Lincoln and the wider Humber region may have to travel up to 150 miles for treatment at the nearest unit in Newcastle or Liverpool, if the closure goes ahead.

As an aside, I was privileged to visit the hospital in Hull, at the invitation of my hon. Friend the Member for Kingston upon Hull North (Diana Johnson), as part of my duties as a shadow Health Minister. It took me an hour and a half to get from Manchester to Hull to visit the hospital. However, because there was a slight flurry of snow on the way back, the M62 ground to a halt, and it took me over five hours to get back over the Pennines to Manchester. I have never seen so many Lancastrians trying to desert Yorkshire at the same time as me, but it shows that geography matters in such decisions. We cannot ignore the fact that the Pennines are there, and sometimes they are impenetrable.

Clearly, there is concern that families may be faced with having to travel further at what is undeniably a very stressful time for them. That case has been made eloquently by Members on both sides of the House in the debate. It is also worth remembering that it is not only the care of poorly children that needs to be taken into account; the care of the whole family is important.

I ask the Minister, for whom I have a great deal of respect, whether she was satisfied that the NHS joint committee of primary care trusts properly balanced clinical decisions with practical and transport issues for families. Furthermore, does she believe that the review was fair to families in the eastern half of England, which is now left with no centre between Newcastle and London? As we know, the JCPCT came to the decision in July to close the unit. The SOS campaign group launched legal proceedings against the NHS to stop the unit being closed, submitting an application to the High Court for permission for a judicial review. Last week, as we have heard, the Health Secretary asked the Independent Reconfiguration Panel to review the decision to close three centres.

We know that children’s heart surgery matters greatly to many people. However, as we also know, the issues surrounding children’s heart surgery have needed to be resolved for some time. The findings of the Bristol Royal infirmary inquiry into children’s heart surgery 10 years ago highlighted that between 1990 and 1995, a number of children died at the infirmary as a result of poor care. It is clear that children’s heart surgery has become an increasingly complex treatment. The aim must be for children’s heart services to deliver the very highest standard of care. The NHS should use its skills and resources collectively to gain the best outcomes for patients. The Government rightly want changes to children’s heart surgery services, so that they provide not only safe standards of care, but excellent, high quality standards for every child in every part of the country.

[Fabian Hamilton]

Does my hon. Friend agree that it is not only the continuum of children’s heart services and the care of parents and other family members that is important? The treatment should continue beyond 16, if it has to. There needs to be an overview of pre- and post-16 services; they should be taken together, because that is how we ensure that the young person, who becomes an adult, survives and lives the rest of their life.

[Andrew Gwynne]

I agree absolutely with my hon. Friend. He makes the point that I was about to come on to. We want that for children’s heart services. It cannot be good enough to say that it is possible to move a service; we want to know whether it is desirable to do so, in order to get the very best outcomes. He makes the point that if we are to have a specialist centre for adults, we should remember that it is often the same surgeons who deal with children, and rather than losing that, it is better to have one specialist centre for all.

It is proposed that the number of cardiac centres in England be reduced from 11 to seven, and it follows that they will all be working at full capacity, so can the Minister ensure that in the event of a superbug outbreak like the one in the Belfast neonatal unit this year; a fire like the one in the Birmingham hospital in 2010, or the one in Leicester in 2011; or any other unforeseen incident occurring in one of the cardiac units, the other six will be able to cope with the pressure without endangering the lives of the critically ill children and babies in their care?

As I have previously said, I welcome the recent decision by the Health Secretary to have a review of the decision to close the children’s heart surgery unit at Leeds general infirmary. It is important that there be a full review, and that the right decision be made, with full consideration of all the facts. I echo the concerns raised by other hon. Members on that point. Many campaigners are concerned that the review by the Independent Reconfiguration Panel will simply repeat a process that was seen as flawed the first time round. What steps will the Minister take to reassure the campaigners in Leeds that it will be a full and comprehensive review? As I have said before, it is not good enough just to close one service and move it to a different part of the country. We must ensure that any potential decisions take full account of the facts, and that any moving of a service will result in a clear and demonstrable improvement in the outcomes for children’s cardiac services.

16:01

[The Parliamentary Under-Secretary of State for Health (Anna Soubry)]

Here we are again. It is a pleasure to speak under your chairmanship, Mr Hollobone. It is about a week since we had a very similar debate, also under your chairmanship. That has already been described by my right hon. Friend—sorry, I always call my hon. Friend the Member for Pudsey (Stuart Andrew) the right hon. Member for Pudsey. [Hon. Members: “Soon!”] Perhaps I am trying to elevate him too soon, but as he has explained, we had a similar debate only last week about the situation at Glenfield. I join everyone else in paying tribute to him for securing this debate.

I pay tribute to all hon. Members who have spoken, of whatever party. In many ways, this has not actually been a debate, because normally in a debate there is a degree of disagreement and people put forward their arguments for or against a particular motion or notion, but that has not been the case in this debate. Here, we have had an outbreak of complete unity, which I acknowledge, between all political parties. It is right and proper that, on this matter, people come together, are not divided by political party and are determined not to score any form of party political point in making their argument. All hon. Members have come to this debate for the right reasons. They have come to represent their constituents and to put forward all the arguments that they can on behalf of their constituents and with full force. That is absolutely right and as it should be, but I want to make this point as well, and not because I am any form of coward—after all, I spent 16 years defending, largely, the indefensible.

I have to say that the hon. Member for Denton and Reddish (Andrew Gwynne) was treading somewhat on my good humour with some of his remarks when he was asking me for my opinion because, as we all know, this whole review has taken great pride in the fact that it has been an independent review—independent of Government. It was set up, quite properly, by the last Government, on a cross-party basis, and it was on the basis that we needed fewer but larger and more specialised children’s heart services in England. It was accepted—I say this with great respect to my hon. Friend the Member for Cleethorpes (Martin Vickers)—that that was the basis of it all and that it was being done so that we could secure the best children’s heart services for babies and young children that we could possibly obtain, and so that we could ensure that those services were sustainable. We wanted to concentrate the specialist heart surgeons in a smaller number of centres to ensure that they had the best skills for dealing with babies and young children.

At the end of the day, we are talking about arguably some of the most specialised surgery that exists. There are instances in which surgeons are operating on a baby’s heart that is no bigger than a walnut. As I say, it is perhaps the most specialised and the most precarious of all types of surgery, so their skills have to be the best. It is also the case that if we have fewer, but larger, more specialised units, we can ensure that those surgeons, those doctors, those nurses and the other health professionals are training the future surgeons, doctors, nurses and other health professionals to do this very important and highly specialised work.

I pay tribute to my hon. Friend the Member for Pudsey. As we would all have expected, he advanced a thoughtful, well researched and sound set of arguments on behalf of his constituents. He gave the examples of Lauren, Libby and Abi. The hon. Member for Scunthorpe (Nic Dakin) also spoke with considerable feeling about what his constituents had told him. That is only right and proper. I am sure that all those constituents will welcome the comments of their Members of Parliament in advancing their arguments for keeping their children’s heart surgery unit open. It is quite clear from the various interventions that this has all-party support. We heard from my hon. Friend the Member for Shipley (Philip Davies), the right hon. Member for Leeds Central (Hilary Benn) and my hon. Friends the Members for Skipton and Ripon (Julian Smith) and for Brigg and Goole (Andrew Percy). As I said, people are coming together, whatever political differences they might otherwise have, in agreement and in support of children’s heart surgery at Leeds general infirmary.

A number of matters strike me from the speeches that have been made. In addressing some of the remarks made and arguments advanced by hon. Members on both sides of the Chamber, I shall try to give a response that perhaps allays some fears and certainly answers some questions.

[Fabian Hamilton]

I am sorry to intervene when the Minister is about to give those responses, but she said that the review, quite rightly, was independent; it was set up by the previous Government to be independent of Government. I think that the prevailing view this afternoon is that it was not impartial. Will she comment on that?

[Anna Soubry]

I will not comment on that, quite deliberately, because it is imperative that I am seen and, indeed, fellow Ministers are seen to be completely independent and impartial ourselves. Of course, that does not prevent hon. Members from making their own judgments and vocalising them, and there may be merit in them, but it is not for me to say whether there is, because, as hon. Members know, this has all been referred to the Independent Reconfiguration Panel—that is right and proper, in my view—and it will look at all aspects of how these decisions have been made. It will take evidence not just from the NHS, clinicians and local authorities, but from Members of Parliament. I am in no doubt that all hon. Members who are here today will make their own representations to the IRP on behalf of the children’s heart services at Leeds general infirmary and will make them with the force with which they have made them today and on the basis of as much information, sound evidence and argument as they have shown us here today.

[Julian Smith]

Will the Minister give way?

[Anna Soubry]

I was going to try to move on to some of the issues, but I will happily give way.

[Julian Smith]

I thank the Minister for giving way. Can she confirm that the panel will include some people who are actually living in the north? What is the make-up of the panel?

[Anna Soubry]

I shall be absolutely blunt: I cannot answer that question. I took a strong view some time ago that if I did not know the answer to a question, I would say so. However, I am more than happy to write to my hon. Friend and answer his question as much as I can.

Travelling times were mentioned by a number of hon. Members. I was going to go through all those who mentioned them, but I may not have time to do so. I shall just make this point. Of course, it is surgery that it is proposed will be lost from Leeds and will go to Newcastle. It is very important that all hon. Members, when they communicate to their constituents about this debate, make the point that the plan is that the surgery will take place in Newcastle, but all the follow-up, all the support and all the other things that we might imagine are involved when a baby or a small child has surgery will continue to be provided at Leeds. It is not the case that the whole thing will move up to Newcastle; it is simply the surgery. I just put that into the pot because the point was made about travelling times. Of course, it is for others to say, but it may be that they take the view that those were very good points that hon. Members advanced in the debate today.

The hon. Member for Leeds East (Mr Mudie) asked specifically about the JCPCT’s refusal, or otherwise, to disclose information. The hon. Member for Leeds North West (Greg Mulholland) spoke with passion, as ever, and commented on that, as did my hon. Friend the Member for Pudsey and other hon. Members. It is for the JCPCT to decide what information should be disclosed, in accordance with the requirements of the Freedom of Information Act. I am told that the Yorkshire overview and scrutiny committee has indicated its intention to refer the matter to the Information Commissioner, which is the established recourse laid down by legislation. I am afraid that it is not for Ministers to order the JCPCT to disclose information to the OSC in Yorkshire or any of the other local authorities involved. The various authorities are open to make applications under the Freedom of Information Act. I hope that answer deals with that point.

The powerful arguments the hon. Member for Leeds East put forward were largely based on population figures. I have already alluded to the contribution of my hon. Friend the Member for Cleethorpes. In large part, my hon. Friend and I disagree on the basis of the review. He said that different experts have different views, but I have to tell him that we have seen an outbreak of unity on this issue among many of the royal colleges, experts and leading clinicians in the field, who welcomed the decision of the JCPCT.

[Martin Vickers]

We heard from my hon. Friend the Member for Leeds North West that experts in Scotland disagree, so there is clearly some basis for doubt.

[Anna Soubry]

I am grateful for that contribution, but I know that when the JCPCT’s decision was announced, it was universally welcomed by many of the clinicians who have been involved in such specialised surgery, certainly throughout England, but I cannot comment on the views of those north of the border.

I have a short time left to speak. The Independent Reconfiguration Panel is just that—an independent reconfiguration panel. I can provide details to those who need to know its composition. It comprises independent experts, and Members can be assured that they will conduct a full and independent review. As I said, they will take evidence from NHS organisations, local authorities and local MPs. It is hoped that their deliberations will conclude at the end of February. It will then be for the Secretary of State to receive the findings and recommendations and to decide whether to act on them. There is a concern that there may be some delay due to a legal challenge.

In last Monday’s debate my hon. Friend the Member for Pudsey made a helpful intervention, to which I responded that if any local authorities in Yorkshire are minded through their OCSs to refer the matter to the IRP, they should get on and do it. I want to put that into the pot, because the one thing that nobody wants is any more delay.

This debate began back in the 1990s, and hon. Members talked about what happened in Bristol. It was determined then that we needed to ensure that our babies and young children had the finest specialised heart surgery services possible, which is why it has been a long process. It is difficult and painful, but the Safe and Sustainable review was set up on the basis that there would be a reduction in the number of units. No one wants to set one hospital against another, and I pay tribute to everyone who has avoided doing so, but unfortunately sometimes tough decisions have to be made. It is always important to remind ourselves that they are made for the very best reason, which is to ensure that our babies and young people are safe and get the very best service.

Court-appointed Deputies

Tuesday 30th October 2012 Westminster Hall

16:14

[Duncan Hames (Chippenham) (LD)]

It is a pleasure to have you in the Chair, Mr Hollobone. I applied for a debate on this subject to raise the case of one of my constituents, who, for today’s purposes, I will call Mr Able. He has seemingly exhausted every official regulatory channel available, without anyone taking responsibility for remedying what has happened to him. Although cases of his kind may be in a minority, I want to illustrate how easily a vulnerable adult has been appallingly failed through poor communication and a lack of scrutiny in the system of court-appointed deputies and in the Office of the Public Guardian.

In 1997, my constituent was awarded a not insubstantial sum following a road traffic accident in which he was injured. He was assessed as being affected by learning difficulties and additional cognitive impairment following the collision. The following year, the Public Trustee was appointed his receiver—the role now known as that of the deputy—and in 2001 that role passed to a firm of solicitors. They failed not only to protect his existing funds, but to secure and maximise his income. Over the nine years that followed, Mr Able’s award was virtually wiped out, and the local authority has been looking after his deputyship since 2010.

It is clear that the eventual decision to replace his court-appointed deputy with Wiltshire council is the best thing that has happened to Mr Able during my involvement in his case. Before that, inadequate sharing of information across agencies about my constituent’s actions and circumstances led to a large proportion of his capital being eaten up by solicitors’ fees, and to him not receiving the benefits to which he was entitled.

Nearly £33,000 was spent on the cost of his court-appointed deputy, but despite the hefty price tag, the deputy was not able to prevent a further £13,500 being spent on a different firm of lawyers’ pursuit of a speculative unfair dismissal case, which adds up to more than £46,000. That firm predicted that Mr Able could secure between £20,000 and £36,000 in damages, but won him less than a tenth of that, leaving him substantially out of pocket and his deputy trying in vain to get those lawyers’ costs below £13,000. How can the system conclude that it is in the best interests of a vulnerable adult, with no other means, to run up such fees? How could the situation have gone so far with no one in authority suggesting that it was in any way exploitative?

The Court of Protection has a panel of people who can be appointed deputies. My constituent’s case suggests that those considered for appointment are not suitably equipped to serve some of the clients assigned to them. It also suggests a disturbing degree of laxity in how some individuals become deputies. Mr Able’s deputy for much of the period had no links to the panel of deputies. To all intents and purposes, he had inherited his case from a deceased colleague. The level of vagueness that my staff and I encountered when trying to clarify exactly what happened in that period, and how the application process to find Mr Able a new deputy was managed, was disturbing.

I understand from the Office of the Public Guardian that a review has been undertaken of the panel of deputies, one of the aims of which was to introduce clearer procedures on how individuals become and remain panel members. I would appreciate the Minister’s assessment of how that exercise has gone, and how it has treated the question of whether solicitors are, in all circumstances, suitable for appointment by the court as deputies.

Mr Able has gained access to the support he needs only through a patient and conscientious local authority team, to whom he pays nothing comparable to the solicitors’ fees I outlined. However, that support was secured only when he was approaching the point of crisis, and after his money—the management of which was his deputy’s task—had been almost entirely depleted.

It seems that at that and too many other points in this case, Mr Able’s behaviour and capacity have been cited as a reason why certain things did or did not happen, and have been used to explain and justify action, or inaction, by those who were supposed to have his best interests at heart. That is not acceptable. If professional court-appointed deputies are unable to work with their clients’ behaviour, they are probably not the right people to do the job. If that is what happened in this case, they should have said so. Instead, they were just happy to take his money for the time and the attention that he demanded of them.

There is a related point about scrutiny and who monitors whether deputies are undertaking their duties effectively. The Court of Protection visitor had decided to stop visiting Mr Able back in April 2003. Mr Able did not receive another visit until January 2011.

[Jim Shannon (Strangford) (DUP)]

Would this gentleman’s circumstances have been different if the court had recognised early on that he did not have the capacity to look after himself, and if someone suitable had been appointed from an organisation that looks after people with disabilities? Does responsibility for what took place lie with the court or the solicitor?

[Duncan Hames]

That is the astonishing thing about this case. The court made an assessment, in which it determined that Mr Able was not capable of managing his own finances. The things that we are led to believe the system considered Mr Able capable of doing, in terms of looking after his best interests and challenging what was happening to him, is extraordinary given that original assessment. I certainly agree that part of the problem is that inconsistency in what he was expected to be able to do, given the decision that the court had already made about his ability to manage his finances. That does not absolve the court-appointed deputy of the responsibility of saying that in the circumstances they were not the best people to serve him.

Mr Able did not receive a visit from the Court of Protection visitor again until January 2011. Even a change of deputy in 2005 was not considered an appropriate trigger for a visit, despite the fact that it took a year for Mr Able’s deputy’s replacement to be confirmed. As part of the oversight process to protect people who lack capacity, visitors can be commissioned to make reports by either the Court of Protection or the Office of the Public Guardian. I contend that not having Mr Able visited at any time in eight years demonstrates a terrible sense of complacency among those who were meant to be looking after his best interests.

In this case, my constituent was removed from the list of people to be visited for the “time being” on the grounds that regular visits would not “achieve anything”. However, a court visitor was engaged on Mr Able’s case when the deputy applied to be discharged, and produced a report in 2009, which seems to have been compiled without the visitor even meeting Mr Able. In such cases, the system seems to serve the needs of the deputies rather more than those of their clients. I wonder how well the criteria for how deputies manage their clients’ money are set and monitored, especially clients in Mr Able’s position, given the view that had been taken about his capability. I would welcome the Minister’s opinion on whether the system of visits is in need of review to help improve the situation for people in similar circumstances.

[Mr Richard Bacon (South Norfolk) (Con)]

I am interested to hear my hon. Friend say that a review is required. Does he agree that there is perhaps a need for a fundamental review of the entire system? I have come across a case of a court-appointed deputy, a solicitor, who made a misleading statement to the Court of Protection, gave incorrect information to agencies such as Her Majesty’s Revenue and Customs, appointed inappropriate case managers who did not have the required expertise, paid bills against invoices without first checking that the invoices were valid, and took an enormous fee in the process. I must declare an interest, because my wife was recently appointed court deputy in place of the solicitor and is, of course, saving the client a fortune in fees. Does he agree that the system has basically not performed adequately at all, and needs fundamental review?

[Duncan Hames]

I do agree. I hope that the Minister will conclude—if not today, then before long—that a thorough review of the situation is required. I raised this case because it is illustrative of many others. As I shall explain, one of the things about this case that has frustrated me immensely is the lack of accountability for what is happening. In any situation, there will be people whose conduct is not up to the standard that we would hope for. There may even be people who exploit a situation. If there is sufficient accountability in a system, we have some safeguards. I am not convinced that there is such accountability in this case.

[Mr Bacon]

Does my hon. Friend agree that one possible way forward is to increase the powers of the Public Guardian, whom I met quite recently and found to be an extremely reasonable individual? He said that one of the issues is that his current statutory powers are limited. Is one way forward to increase the scope of what the Public Guardian can do?

[Duncan Hames]

I understand that we have a relatively new Public Guardian. I hope that he will be rather more concerned about this situation than his predecessor appeared to be, given the report that I received when I made this investigation. Perhaps that is something that we will hear more about from the Minister.

I have been pursuing this case, with the help of my staff, since before my election in 2010. I have taken every available route, up to and including the parliamentary ombudsman, to get the full facts and to bring scrutiny to bear on the individuals and agencies involved. Frustratingly, after all the reviews and oversight processes that have been triggered at every level, none has found any individual at fault, and that is despite the evident general failure to ensure my constituent’s financial well-being. Indeed when I requested that the parliamentary ombudsman investigate this case, I received a thoughtless parroting of the Public Guardian’s own review, which had been conducted at my request and completed in January last year. It added no value to the scrutiny of the situation, and I find that completely unsatisfactory.

There was consensus among professionals that Mr Able did not have the capacity to manage his finances, so it cannot be suggested that the outcome—the depletion and, in some cases, wasting of his money—was his fault, or something for which he can be held to account; that is the very point of deputies acting on his behalf. None the less, the result, effectively, is that a vulnerable man has been left more or less penniless by the inaction of those who were meant to protect him, and the regulatory reaction has been tacit indifference. For example, on the costs that my constituent was charged by his deputy, the Office of the Public Guardian’s internal review said that it found no evidence that Mr Able was ever formally told by his deputy, or anyone else, that he was entitled to challenge the assessment of his costs by the Senior Court Costs Office.

Similarly, I look at the failure to secure Mr Able’s income through benefits to which he was entitled. The Public Guardian considers that his deputy “made reasonable attempts”' to do that, but that these did not always succeed, and that

“with hindsight, different approaches should have been tried.”

More than a third of the personal capital that Mr Able possessed when control of his financial affairs was passed to court-appointed solicitors was subsequently paid to those solicitors as fees for the job of controlling his expenditure, yet they did not even ensure that he received appropriate benefits when he was unemployed. The Public Guardian, however, does not consider that Mr Able’s deputy was at fault for not providing him with the support to ensure that he attended the right appointments, was able to cope with benefits-related interviews and assessments, and continued to sign on.

However, now that Wiltshire council acts as Mr Able’s deputy, he has qualified for employment and support allowance, and he receives support that addresses his needs appropriately, including the use of reports from medical staff and social workers when applications are made. If the council can achieve that, surely—given the expense that Mr Able was forced to incur—his court-appointed deputy should have been able to achieve it, too.

No review of the case has concluded that any agency has done something wrong, and no lessons have been learned. Although this case may be unique, as we have heard today, the failings exposed by it are certainly not unique. I draw the Minister’s attention to the Westminster Hall debate secured by the hon. Member for Cardiff West (Kevin Brennan) on 19 July 2011, in which I participated, and to the transcript of BBC Radio 4’s “File on 4” report on court-appointed deputies by Fran Abrams—I gave the Minister a copy today—which catalogues failings similar to those I describe.

I ask the Minister what other avenue is available in seeking redress for my constituent. I recognise that she is new in her post, so I ask that she personally looks further into the wider issues discussed today, and raises them with her colleagues in the Ministry of Justice. In particular, I ask her to consider whether the panel from which deputies appointed by the court are drawn is too narrow, and whether it could include, for certain cases, representatives of voluntary sector organisations, especially those with experience of dealing with the sometimes complex circumstances of vulnerable people. My final question is this: is the OPG, as currently constituted, fulfilling its responsibilities to vulnerable people, or has it been captured by the learned and organised legal practitioners who collectively draw such great revenue from this work?

Exasperated as I am to see my constituent suffer this unremedied injustice, it is imperative that—at the very least—lessons are learned from his saga, so that others do not face the same fate in future.

16:31

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

It is a pleasure, Mr Hollobone, to serve under your chairmanship today.

I congratulate my hon. Friend the Member for Chippenham (Duncan Hames) on securing this debate. I know that he has a keen interest in these matters, and I am glad to have the opportunity to speak about the work of the Office of the Public Guardian and in particular the Public Guardian’s role in supervising deputies appointed by the Court of Protection. This is a vital and complex area of work, and people who have lost capacity are often very vulnerable indeed. It is absolutely right and proper that we consider whether the arrangements that are in place to support and protect them are completely acceptable and operating as well as possible.

My hon. Friend raised issues that centre on the role of deputies appointed by the Court of Protection and then supervised by the OPG. It would be helpful if I outlined how the system of deputyship currently operates, before describing how the OPG is considering, through a fundamental review, some of the wider issues raised about deputies and how they are supervised.

The decision whether a deputy is required, and who the proper person is to take on that role, is entirely a judicial matter. The court will only appoint a deputy when the person concerned lacks capacity to make the relevant decisions and if no legal arrangement had been made while they still had capacity. In the case of financial matters, if there are assets that require management frequently the only option is to appoint a deputy.

Once a deputy is appointed, they must always act in the best interests of the person for whom they have been appointed. They must also ensure that the individual concerned is supported to make as many decisions for themselves as they can. Where the deputy has to make decisions on the person’s behalf, they must still ensure that the person concerned is involved in the process as much as possible. That is especially important in cases where a person may lack capacity to make some decisions but not others, or where their level of capacity can fluctuate or vary over time. These factors make the role of deputy a challenging one and the balance between allowing a person to make decisions for themselves and having to make a decision for them is often a fine one.

When a deputy needs to be appointed, they will often be a family member or close friend of the person lacking capacity. Normally, the court will consider appointing a professional deputy only in circumstances where there is no one else suitable and able to act. It may be that the person lacking capacity has no close family or friends, or it may be that a conflict of interest exists within the family, or that the size and complexity of the estate mean that a professional deputy is better placed to act on their behalf. Such professional deputies are entitled to charge fees and in complex cases these costs can be very high. However, the costs must be representative of the work done by the deputy. The costs charged by professional deputies are set out in a practice direction issued by the president of the Court of Protection. If a deputy wishes to claim over and above the fixed costs, their claim must be assessed and approved by the senior court costs office.

Once a deputy has been appointed by the Court of Protection, the Public Guardian is responsible for supervising them to ensure that they carry out their duties properly and act in the best interests of the person they are representing. This is a statutory duty placed upon the Public Guardian by the Mental Capacity Act 2005 and it is entirely right that, where the state has had to intervene to appoint an individual to make decisions on another person’s behalf, that individual is subject to adequate but proportionate oversight.

However, the Public Guardian does not have any role in directly managing the affairs of a person who lacks capacity. Their role is entirely to supervise and investigate. It is not within their jurisdiction to remove a deputy once they are appointed or to place limits on how the deputy exercises their powers. If the Public Guardian believes that a deputy is unable to fulfil their role or functions effectively, they may make an application to the Court of Protection seeking the deputy’s replacement or seeking to have limits placed on their powers.

In most cases, the Public Guardian will require the deputy to report to them on at least an annual basis. In the early stages of appointment, there may also be additional contact from the Public Guardian’s office to ensure the deputy is carrying out their duties properly and to identify any need for additional support. In certain cases, that may also involve a visit from an independent Court of Protection visitor who will report their findings to the Public Guardian. My hon. Friend may be pleased to know that almost 6,500 such visits took place last year.

I now turn to the work that is currently going on at the OPG as part of the Ministry of Justice’s “Transforming Justice” agenda. This work is being taken forward under Alan Eccles, who was appointed earlier this year as the new Public Guardian. The OPG is currently taking forward a major transformation programme that is designed to move its services on to a digital platform, to reduce the bureaucracy of the current paper-based system. The programme is focused squarely on placing the needs of users, including deputies and those whom they support, at the heart of the business, and on ensuring that the OPG is able to meet the demands placed on its services well into the future.

As part of that work, the new Public Guardian has launched a fundamental review of how the supervision of deputies is carried out. The aims of the review are twofold: first, to ensure that proper safeguards are in place to protect people who lack capacity and to ensure that decisions are made in their best interests; and secondly, to ensure that supervision is proportionate. That means focusing attention on those cases that require most support or where there are potential concerns, but allowing deputies who are operating effectively to do their job with minimal intervention. That might mean tailoring supervision to the needs of different kinds of deputies. Professional deputies, such as legal professionals and public authorities, might require a different type of supervision from lay people acting on behalf of family members. Also, a new deputy will often require additional support so that they understand their responsibilities and the support available to them.

Any changes will also need to be in line with the Public Guardian’s statutory duties, to which my hon. Friend referred, and must also consider the demands that the increasingly ageing population places on the OPG’s services. The OPG must be able to deal with the rising number of deputies in the future, as well as encouraging people to plan for the future by making lasting powers of attorney, which may remove the need for a deputy to be appointed at all. A key element of the work is the need to build a richer understanding of the deputies’ circumstances and their needs. I am pleased to say that the OPG has already surveyed some 1,300 deputies. In the coming months the OPG will conduct in-depth interviews with deputies to gain a deeper insight into their needs and the needs of those for whom they care.

The OPG will continue to listen to experts across the mental capacity field as it looks to improve its services. Building a clearer picture of its customers will help the OPG to design a more responsive and effective supervision regime, which I know my hon. Friend the Member for Chippenham will support.

[Mr Bacon]

The Minister mentioned the Office of the Public Guardian and his statutory powers. In cases of over-billing, once it has been stamped by the court, as the Minister alluded to, the issue for the Public Guardian is that, under present legislation, his scope to act is extremely limited, even if, as it may transpire, the over-billing has happened as a result of the Court of Protection successfully being misled by a deputy.

[Mrs Grant]

The issue that my hon. Friend raises in relation to over-charging vulnerable people is extremely important. It is worrying and it is one of the reasons why the new Public Guardian has launched a fundamental review into the supervision of deputies. My hon. Friend the Member for Chippenham raised the matter with me just a few moments ago, and I will look into it. I will write to him, and perhaps we can take matters forward.

I thank my hon. Friend for raising the issues. I also thank my hon. Friend the Member for South Norfolk, who I know has met the Public Guardian and who has extensive personal experience of the current system of deputyship. The issues are important and I hope that both my hon. Friends are reassured that the Government take matters very seriously. I will look carefully into the issues they have raised on accountability, visits, the statutory powers of deputies and panel composition. I hope they are both reassured that the OPG continues to look into this area to make further significant improvements.

[Duncan Hames]

I very much welcome the fundamental review that the Minister has advised us of this afternoon. She said that the OPG had been and would be surveying deputies as part of the review. I hope that she will ensure that the clients of deputies are consulted and interviewed and asked their views as part of the review in order that the true customers of the service have their voices heard.

[Mrs Grant]

I am happy to look into all the important issues that my hon. Friend has raised today. The Government consider vulnerable people to be very important and a high priority. I am happy to talk further to my hon. Friend about what more might be done.

4G (Interference)

Tuesday 30th October 2012 Westminster Hall

16:42

[Mr John Whittingdale (Maldon) (Con)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I am grateful for the opportunity to debate an issue that has so far received little attention, but one that will affect large numbers of people in this country quite soon. It is appropriate that we should be debating it today. This is the day on which 4G services have become widely available in a number of cities as a result of Everything Everywhere making use of the 1,800 MHz spectrum.

Understandably, the competitors to Everything Everywhere have been concerned that it should be given a lead and so have been pressing to be able to go ahead with the provision of their own 4G services, and to do that they require access to the 800 MHz band. The Culture, Media and Sport Committee, which I am proud to chair, also shared the view that we needed to get on with the allocation of spectrum for 4G, because 4G carries real benefit to the economy, and we did not wish to get left behind.

I am pleased that Ofcom is now pressing ahead with the auction. However, the use of 800 MHz for mobile telephony will have consequences. It will result in interference with the provision of services currently using that band, particularly digital terrestrial television.

We have, of course, just been through a major exercise: the analogue switch-off and digital switchover. When I first became Chairman of the Committee, the first inquiry we had was into analogue switch-off. We felt that this was a huge undertaking, with risks that we highlighted. Happily, the exercise has now been completed and it has gone remarkably smoothly. I pay tribute to Digital UK for its success in overseeing the switchover process with very little problem or complaint. I like to think that the report of my Committee, in which we flagged up some of the problems in advance, allowed us to take account of those and put in place measures so that they did not cause the complaints or disruption that we were concerned about.

Similarly, I want to flag up one or two concerns that I have about the effect of mobile services being made available on 800 MHz, and what we might do to try to avoid difficulties. It is estimated that the reception of digital terrestrial television in 2.3 million homes may be affected once mobile 4G services become available. Of those, 900,000 are primary DTT households that will require filters for them to continue to receive television without interference. I welcome moves by the Government to make filters available to those households. I also welcome the additional help of a £50 voucher, should they have a loft or masthead amplifier, so that the filter can be professionally installed.

I recently met with Ofcom and saw one of the filters that it is intended should be fitted. I accept that as long as someone does not have an amplifier, it is pretty simple to unplug the aerial cable, insert the filter and plug it back in again. However, there will be households for which it is not so simple and the Government are right to make additional help available.

One of my concerns, however, is that the Government are making the filters available only for primary DTT households, and yet there will be a large number of additional households that have second sets, and they will not receive filters. I accept that the Government have to draw a line somewhere, but given that the mobile companies will be bidding a substantial amount of money for the spectrum, I think there is a case for households that still use DTT, but not as their primary means of receiving television, to receive some help.

I also understand that additional measures can be taken to try to mitigate the effect of the interference at the base station. That could help all households that are likely to suffer from interference, but it is not clear to me yet what plans the Government have put in place to ensure that the mobile companies carry out the base station mitigation at the stations that will result in interference. I think it is relatively cheap to install a filter at the base station—I was given a figure of £400—and I hope that the mobile companies do that. Will that be made a condition of the auction, so that the mobile companies carry out the base station mitigation to try to minimise the interference that could result?

I am also slightly concerned that while we are relying on projections of the number of households that may be affected, to some extent we cannot know whether such forecasts are right. The Minister conceded that point when he gave evidence to the Select Committee. One way in which we could perhaps get round that is to have a trial in advance, similar to that which took place at Whitehaven prior to the beginning of digital switchover. There may well be a case for a trial in order to get precise figures for exactly which households will suffer interference and to what extent that interference is a serious problem. I hope that MitCo will consider that. I understand it is still a possibility once the advice is received.

Another issue is whether the filters will work properly, and it would help if they too could be tested in a trial. The prototype filters are now available—as I have said, I have seen one—but mass production has not yet started on the scale that will be required.

The situation has been made more difficult by the bringing forward of the timetable for 4G’s introduction. I do not criticise that; it is important that we get 4G roll-out as soon as possible, but there is no question but that the accelerated timetable will make the process more difficult. Digital UK did a good job in overseeing the transition for analogue switch-off, but it did so over a number of years. It mounted a significant publicity campaign in advance, region by region, so that when it came to switch-off almost everyone knew what was happening, and was hopefully prepared.

Instead of a period of years, however, this process will be done in a period of weeks. The auction of the 800 MHz band is due to start in February and it is intended that the installation will take place shortly after, perhaps in March or April, so we could start rolling out 4G in June. Yet, I am prepared to bet that we would be hard-pressed to find anyone on the street who was aware that there was a risk of their television reception suffering interference again, and that they might have to take further measures to those they have already taken to deal with the analogue switch-off.

[Mr David Nuttall (Bury North) (Con)]

My hon. Friend makes a powerful case. Is he aware that in a presentation to the all-party parliamentary media group, Arqiva estimated that for some 40,000 homes there was no solution at all, because they were too near to the base stations? In those cases, there will be more than interference; the households will simply not be able to get television reception at all.

[Mr Whittingdale]

My hon. Friend raises an important point, which I have not addressed. He is entirely right. I have been informed that 38,500 households—very much the figure he gave—will still be affected after filter installation and that, of those, perhaps 18,000 will be primary DTT households. After the various measures have been taken, there will certainly be some households that still cannot get DTT, and the Government have put aside a budget to address that problem. The only solution will be for such households to change platform, to Freesat, cable or Sky, and where those options are not available either, they might even need to have a special relay station installed. It will be interesting to hear whether the Minister accepts that those are the current figures. The degree of interference will vary, but some households at the extreme end will no longer be able to get DTT under any circumstances.

As I was saying, the Government need to start alerting people to the problem very soon. I have been told that it is difficult to mount a publicity campaign until we know who has obtained the licences and therefore which base stations will be affected, but it would be a good idea to start informing people of the problem. We must have a fairly good idea of the base stations that are likely to be involved. We do not know which operator will obtain which licence, but if the Government are successful in their hope to achieve competition in 4G provision, it seems likely that at least the majority of the major operators will obtain licences, so there is certainly a case for beginning to prepare the ground now for telling people what will happen.

I want to raise two other concerns. The first is about our old friend the PMSE sector, with which the Minister will be very familiar. The programme making and special events sector includes those who need microphones for television productions and live music performances. This important sector is concerned that it, too, might be affected by interference. It has already had to vacate channel 69 and deal with problems resulting from the analogue switch-off and the making available of the spectrum there, and it is now concerned that the problems might continue. It has been suggested to me that industry experts have said that anything above channel 56 might no longer be suitable for PMSE use, which leaves the sector with just two options. The first is that it suffers interference in the five channels it currently has that might be affected, but that is not really an option. If there is a live performance by Bon Jovi—I think I cited them on a previous occasion—sudden interference in the communications is simply not acceptable. The alternative is that the PMSE sector has to vacate those five channels and find new ones further down. The sector has made a perfectly reasonable request for MitCo’s remit to be extended at least to consider the potential interference, and that the sector be represented on its supervisory board, and I hope that the Minister will consider that.

Finally, I turn to the longer term. The Minister will be aware that there is a debate about the likely ever-increasing demand for mobile services and about mobile telephony’s appetite for bandwidth, as a result of which it is being suggested that mobile telephony might in due course creep into the 700 MHz band, possibly from 2018. That would cause further problems for DTT, which might have to move out of 700 MHz and into the 600 MHz band. That date of 2018 is still a little way off, and it is after whatever decisions are taken at the next world radiocommunication conference, but I ask the Minister for one or two assurances now.

First, in the event that that were to happen, it would seem only right that there should be an allocation of spectrum in the 600 MHz band for DTT, and that if DTT were forced out of its current spectrum it should not have to participate in an auction process. It is worth beginning to consider, some way in advance, how many households might be affected and how many might need new set-top boxes.

My real concern, however, which I hope the Minister feels able to address, is that there has been a suggestion that in due course we might no longer need DTT. We have internet protocol television, or IPTV, coming down the wire, and there might come a time when the different ways of receiving television—broadband and satellite—mean that there is no longer a need for Freeview DTT. I can anticipate that day being reached, but as IPTV services are still in their infancy I think it would take a long time.

A certain amount of concern was raised within the industry by the recommendation of the Lords Committee on Communications. I do not want to criticise my colleagues in the other place, but the Committee’s report on broadband states:

“We recommend that the Government, Ofcom and the industry begin to consider the desirability of the transfer of terrestrial broadcast content from spectrum to the internet and the consequent switching off of broadcast transmission over spectrum”.

As 2018 is likely to be too soon to even contemplate that, I seek the Minister’s assurance that if DTT finds itself unable to use the 700 MHz spectrum and has to move as a result of further allocation of spectrum to mobile telephony, it would be the Government’s intention to continue to have DTT services, certainly for some considerable time to come.

16:59

[The Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport (Mr Edward Vaizey)]

It is a pleasure to serve under your chairmanship, Mr Hollobone.

I congratulate my hon. Friend the Member for Maldon (Mr Whittingdale) on securing this important debate. As he points out, apart from a brief evidence session before his Select Committee, Parliament has not debated 4G interference with digital terrestrial television, so this debate is a useful opportunity to set out the Government’s position and perhaps address some of the concerns that he highlighted in his excellent speech.

First, I make it clear—my hon. Friend is an expert in such matters, but those watching the debate may not be—that we are talking about interference from the 800 MHz spectrum. As hon. Members may know, after the spectrum auction, mobile phones will use a range of spectrums—800 MHz, 900 MHz, 1,800 MHz, 2.1 GHz and 2.6 GHz—but only the 800 MHz spectrum risks causing interference as it is adjacent to the 700 MHz spectrum used for digital terrestrial television. It is important to make that point, because as my hon. Friend points out, today sees the launch of the UK’s first 4G service by EE, as we must now learn to call it, but that is in the 1,800 MHz spectrum, so nobody need go home tonight in fear that they will miss “BBC News at Ten” or “Newsnight.”

Secondly, only digital terrestrial television viewers will be affected. Again, effectively that is people watching Freeview. People who get their television through Freesat, cable or a commercial satellite provider will not be affected by the 800 MHz spectrum.

My hon. Friend points out that Ofcom has estimated that some 2.3 million households will be close enough to mobile phone base stations using the 800 MHz spectrum to risk being affected by interference. That is an estimate, and the figure may be substantially lower. There are a number of reasons why that may be the case. First, Ofcom estimates that only 40% of those households will be viewing Freeview; the rest will be getting their television in other ways. That brings the figure to 900,000 homes.

My hon. Friend asks whether mobile operators will be compelled to put filters on their base stations. I am pleased to inform him that all the base stations being procured by potential winners of the 800 MHz licence will include a filter as a matter of course. Without wishing to confine myself to a specific figure, I have been informed that it is therefore likely that the new base stations, which are substantially more advanced than the ones used in other countries, may substantially reduce the number of households affected. When that becomes clearer, I will, of course, inform him.

My job as a Minister, working with Ofcom, was to work out the best way to reduce any interference for potentially affected households. First, the obvious decision was to put the mitigation measures into the hands of the mobile operators. They are the ones who will site the base stations and procure the relevant technology, so it seems sensible that, as the people potentially causing the interference, they are in charge of reducing that interference as much and as upstream as possible.

Secondly, I was given a range of financial support options that I could make available for mitigation. To put it bluntly, those options included zero and figures across the spectrum. I chose the higher end of the spectrum. I would rather be the Minister who set aside too much money for this programme than the Minister who set aside too little to get the job done.

How will the money be used? First, all the households that might be affected by the base stations will receive a free filter. So, on the current figure, 2.3 million households will receive a free filter. That means that, for the sake of argument, if a household receives the signal for the main television set in the living room through cable or satellite, it will receive a free filter for, say, a Freeview set in the bedroom. That will help many households that have second sets.

If we zone in, as it were, on the 900,000 households that use Freeview for their primary set, we estimate that some 150,000 of those households will be able to fit a filter without any problem. I have fitted a filter, and my hon. Friend has fitted a filter, which is literally a piece of aerial, to put it in layman’s terms. I simply unplugged the aerial, attached the filter and put the aerial back in. That took me 10 seconds, and I would not class myself as a DIY expert.

We are then left with 220,000 households that are technically vulnerable, which means people with disabilities or people aged over 75. I do not want to get into a secondary debate—I know many 75-year-olds who might not class themselves as vulnerable—but technically, they are vulnerable. That is about one in four of the 900,000 households, and help will be available to them should they so choose. We know from the digital switchover scheme that, of the people who were eligible for help, only 15% chose to make use of the available help scheme. Nevertheless, money will be set aside on the basis that every single one of those households will use the help scheme.

The next category is people with amplifiers, which are used to boost the power level of the TV signal. Before the switchover, amplifiers were quite prevalent because, obviously, people were using them to boost weak digital signals before we completed the switchover. Sometimes amplifiers are used to boost a strong signal where there are two or three televisions in a home. Ofcom estimates that some 380,000 of the affected Freeview homes have amplifiers, but many of those will no longer be in use and there will be no need to fit a filter. Where there is an amplifier, there is no reason why, in quite a significant number of cases, a normal able-bodied person will not be able to fit a filter. There has been a suggestion that, if the amplifier is in the loft, that could be a problem, but it should be possible to go into the loft to fit the aerial extension.

We acknowledge, however, that if the amplifier is on the roof, we certainly would not expect someone to get out the ladder and climb on the roof to fit the aerial. Ofcom estimates that there are some 125,000 households in that category and, as a result of the high-profile concerns that were raised on that specific issue, we have instructed that about £12 million of the £180 million be set aside to pay for the reasonable costs of professional installation. We have estimated those costs to be about £50 plus VAT. It is important to stress that by “professional installation” we mean going up a ladder safely and putting the aerial extension into an amplifier. That is not the same as adjusting an aerial for the digital terrestrial television switchover, which was a more complicated, technical task, but we expect people to use a registered digital installer. That is something that we inherited from the digital switchover scheme and will ensure that people are using professional installers.

Finally, there comes the issue of fitting filters to communal properties. We think there are about 20,000 such properties, which make up the rest of the 900,000 affected households. Those properties will require a more sophisticated filter, which we think will cost up to £300, but those filters will be provided to communal properties free of charge. Fitting such a filter is probably more demanding than fitting the filter that my hon. Friend and I have used, and we think a figure of about £220 is right. As a general rule, we would expect landlords to be responsible for ensuring the fitting of that filter to their property.

My hon. Friend says that he thinks people with second or third sets should get additional free filters. I am afraid that at this stage all I can do is agree to disagree with him. Additional filters will be easy to obtain and should cost £10 or less. It is difficult to give an open-ended commitment to provide free filters and to ask people to write in to say that they have two, three, four, five or six television sets, or to try to guess how many television sets they have. I think it is easier simply to give everyone a free filter and then say, “If you want a second filter, they are relatively cheap.”

I have also noted my hon. Friend’s suggestion for a pilot or trial period before rolling out 4G. There have been a number of technical trials already, and we have seen commercial roll-out in other countries, so we have a great deal of experience to draw on. We do not believe that a trial would add anything to our knowledge, and it would significantly delay much-anticipated 4G services. We will keep the matter under review, but it is important to explain again that 4G will roll out gradually; not all the country will be covered by services the minute 4G goes live in the 800 spectrum category.

I note my hon. Friend’s concerns about the lack of a public awareness campaign. Again, the mitigation programme is different from the digital switchover programme, because it does not affect every household in the country. Far fewer households will be affected. Also, every single household within range of a base station will get at least four weeks’ notice, and the roll-out process will take two to three years. We believe that embarking on a widespread publicity campaign at the moment might not have the impact that my hon. Friend suggests.

It is also important to stress that those who hold 800 MHz licences after the auction will have strict key performance indicators on the provision of public information as part of their licence conditions. Our final guarantee is that if any of the mobile network operators fails to meet the key performance indicators, the immediate sanction will be that they must switch off the offending base station and not add any others until they have remedied the issues for local TV viewers. That strikes me as an elegant and effective way of ensuring that mobile network operators take the issue seriously.

My hon. Friend is right to point out that because of our work in clearing the spectrum more quickly than we had anticipated, bringing the benefits of 4G to the UK more quickly than planned, we have a stretching timetable, but I am pleased that the mobile network operators moved quickly to set up the mitigation company, which has the elegant title of Digital Mobile Spectrum Limited and Andrew Pinder as its interim chair. The creation of the company has been at the heart of discussions with the MNOs about bringing forward the roll-out of services, and the MNOs are still required to have the mitigation company operational in time to launch services. I am confident that the MNOs are taking that requirement seriously. Furthermore, we will have oversight through an oversight board. I am delighted to tell my hon. Friend that the board had its first meeting this morning, and it was very productive.

Finally, let me address three points quickly; I am conscious that I might run out of time. My hon. Friend said that 38,500 people could be so seriously affected that no filter will help them. That figure may change over time as base stations become more sophisticated, but yes, we have made provisions for them to have a full platform change, or even a direct digital terrestrial television relay should one be required.

We note the concerns of the programme making and special events sector. I met with Lord Grade recently to hear its concerns. It is for Ofcom to deal with the PMSE sector and find suitable frequencies for it. It has a dedicated channel, channel 38, but we will keep the issue under review, and I promised Lord Grade that we would meet regularly.

Finally, my hon. Friend mentioned the long-term future of 700 MHz. We note concerns about the long-term future for spectrum as mobile phone demand increases, and we have an ambitious campaign to release public sector spectrum. There is, of course, an international dimension to the designation of the 700 MHz band, and we will undoubtedly continue to negotiate with our international partners about its future use, but I note absolutely my hon. Friend’s comments. It is important that we do not run before we can walk.

[Mr Philip Hollobone (in the Chair)]

I do not think that there were any problems with transmission or reception during that debate, but I am afraid it is time to tune out and switch off.

Question put and agreed to.

17:13

Sitting adjourned.

Written Ministerial Statements

Tuesday 30th October 2012 Written Statements

Tuesday 30 October 2012

Nuttall Review on Employee Ownership

Tuesday 30th October 2012 Written Statements

[The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Jo Swinson)]

Today I am publishing the Government’s response to the Nuttall review on employee ownership. In parallel with this, I am also publishing a consultation on deregulating employee share buybacks, along with draft regulations.

Copies of these documents will be placed in the Libraries of both Houses.

The Government response sets out how we will address each of the 28 recommendations made in the Nuttall review. It focuses on three themes of raising awareness, increasing the resources available to support employee ownership and reducing its complexity. These three themes will make up the key elements of the Government’s approach to promoting employee ownership in the private sector, complementing and drawing parallels with the activity around public sector mutualisation.

UK Green Investment Bank

Tuesday 30th October 2012 Written Statements

[The Secretary of State for Business, Innovation and Skills (Vince Cable)]

On 24 May 2011, I made an oral statement setting out the Government’s plans for a UK green investment bank which would help lead the United Kingdom’s transition to a green economy. I gave a commitment to update the House on further milestones and am very pleased to tell the House that the bank began full operations on 29 October 2012.

The commencement of commercial operations by the bank has been contingent on state aid approval from the European Commission. On 17 October 2012 the European Commission gave its approval, relating to the bank’s remit, its operating model and Government funding of £3 billion over the period to March 2015. Under the terms of the state aid approval, the bank will be able to make investments, on commercial terms, across the following green sectors:

offshore wind;

waste;

non domestic energy efficiency;

biofuels for transport;

biomass power;

carbon capture and storage;

marine energy; and

renewable heat.

The Department for Energy and Climate Change is seeking state aid approval for the financing of the green deal separately. The UK green investment bank would be able to invest in the green deal in accordance with the terms of that approval.

My Department has, in parallel with the state aid application process, been taking the necessary steps to ensure that the company would be ready to begin operations soon after receipt of state aid approval. I have, in particular, given my approval as shareholder to the appointment of Shaun Kingsbury as the company’s chief executive officer, with effect from 29 October 2012. I have also agreed the appointment of six non-executive directors with a wealth of relevant experience in investment and wider green issues.

On 26 October 2012 the board of UK Green Investment Bank plc resolved that the company would be ready to begin full operations on 29 October, having concluded that the necessary personnel, processes and systems would be in place.

In April this year UK Green Investments (UKGI)—a team of finance professionals in my Department—began making investments in green infrastructure on commercial terms, committing £180 million to specialist fund managers to co-invest equity in smaller waste infrastructure, energy from waste, and non-domestic energy efficiency projects. Assets built up by UKGI will transfer to the bank.

The Government will provide funding to the bank under section 228 of the Banking Act 2009, pending parliamentary approval of a bespoke power to fund the bank under clause 4 of the Enterprise and Regulatory Reform Bill.

Cabinet Committees List

Tuesday 30th October 2012 Written Statements

[The Minister for the Cabinet Office and Paymaster General (Mr Francis Maude)]

Today I am publishing an updated Cabinet Committee list. I have placed a copy of the new list in the Libraries of both Houses.

Charitable Incorporated Organisation

Tuesday 30th October 2012 Written Statements

[The Parliamentary Secretary, Cabinet Office (Mr Nick Hurd)]

I have today laid draft secondary legislation needed to give effect to the charitable incorporated organisation (CIO). The CIO is a new legal structure, under the Charities Act 2011, designed specifically and only for charities.

Charities seeking the benefits of incorporation can currently set up as a company limited by guarantee, but many are put off by the additional administrative burden of dual registration and regulation under both charity law and company law (of the 162,000 registered charities only just over 30,000 are structured as a company limited by guarantee). The CIO has the benefits of legal personality and limited liability, but will be solely registered with, and regulated by, the Charity Commission for England and Wales. The CIO will add to the range of legal structures that charities can choose to adopt. Implementing the CIO supports the Government’s aim of making it easier to set up and run a civil society organisation. Due to its limited liability, the CIO structure should make it easier for charities to recruit and retain trustees, and to engage in contracts and hold property. Implementation of the CIO is supported by the Charity Commission and will be welcomed by the voluntary sector.

The CIO is expected to be a popular legal structure for both new and existing charities seeking the benefits of incorporation. Given the expected levels of demand for the CIO, and to help the Charity Commission manage its available resources to support the implementation of the CIO, we have agreed with the Charity Commission a phased implementation plan, which is set out below.

The phased implementation timetable set out below is indicative (and implementation is subject to parliamentary approval of the secondary legislation needed to implement the CIO). The Charity Commission will need to retain flexibility to change the dates on which application windows open if the level of demand significantly exceeds expectations. The commission will maintain an up-to-date implementation timetable on its website.

The current package of secondary legislation does not make provision for the conversion of charitable companies limited by guarantee, community interest companies, or charitable industrial and provident societies. Separate secondary legislation will be brought forward in due course to provide a mechanism for the conversion for these entities that wish to convert into ClOs.

Charity Commission's indicative timetable

Parliamentary Question (Correction)

Tuesday 30th October 2012 Written Statements

[The Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport (Mr Edward Vaizey)]

On 18 October 2012, Official Report, column 390W, the Department for Culture, Media and Sport answered the following parliamentary question:

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

To ask the Secretary of State for Culture, Olympics, Media and Sport, how many full-time equivalent staff there were in Broadband Delivery UK (BDUK) in each quarter since May 2010.[12370].

[Mr Vaizey]

The accompanying table shows such data as we hold on leavers and joiners to BDUK. As well as external joiners and leavers the figures include internal moves between broadband and other DCMS teams:

UK Carbon Capture and Storage Commercialisation Competition

Tuesday 30th October 2012 Written Statements

[The Secretary of State for Energy and Climate Change (Mr Edward Davey)]

I am today providing an update on the UK’s carbon capture and storage (CCS) commercialisation competition. The UK is providing funding to support the development of CCS technology, which if developed at scale could allow the safe removal and storage of harmful carbon emissions from coal and gas plants.

The competition, which has £1 billion in capital funding available to support commercial scale CCS projects, was launched on 3 April 2012. Its objective is to identify and support projects which can contribute to reducing the costs of CCS technology so that it can compete with other low-carbon technologies in the 2020s. The competition closed for bids on 3 July 2012 and eight bids were received.

Since then, my Department has undertaken a detailed analysis of the bids received and I can today announce we will be taking four projects forward. The next stage will be a new intensive phase of negotiations leading to decisions on which projects to support further in the new year. These negotiations are critical to ensuring we reach the best deal for the UK taxpayer.

The four full chain projects we are taking forward are (in alphabetical order):

Captain Clean Energy Project—A proposal for a new 570 MW, fully abated coal integrated gasification combined cycle (pre-combustion) project in Grangemouth, Scotland with storage in offshore depleted gas fields. Led by Summit Power, involving Petrofac (CO₂ Deepstore), National Grid and Siemens.

Peterhead—A 340 MW post-combustion capture retrofitted to part of an existing 1180 MW combined cycle gas turbine power station at Peterhead, Scotland. Led by Shell and SSE.

Teesside Low Carbon Project—A pre-combustion coal gasification project (linked to c330 MWe net power generating capacity fuelled by syngas with 90% of CO₂ abated) on Teesside, north-east England with storage in depleted oil field and saline aquifer. A consortium led by Progressive Energy and involving GDF SUEZ, Premier Oil, and BOC.

White Rose Project—An oxyfuel capture project at a proposed new 304 MW fully abated supercritical coal-fired power station on the Drax site in North Yorkshire. Led by Alstom and involving Drax, BOC and National Grid.

We will make further announcements in the new year.

The NER300

The NER300 is a European Commission competition for CCS and innovative renewable projects. The Commission is due to announce awards from its first round of funding at the end of this year. In order to do that member states need to state which projects they are prepared to support from the list that the Commission has published. The Commission has informed us that no more than two or three CCS projects (across Europe) will receive funding in this round. The maximum support available for CCS projects is around £250 million per project. Each member state is allowed to support three projects in total (i.e. CCS and renewables projects combined), although projects on the Commission’s reserve list are allowed to be supported without limitation at this stage.

With a maximum of two or three CCS projects able to be supported across Europe, the UK will not secure funding for three UK CCS projects. My officials have therefore confirmed support for the one UK renewable project on the Commission’s candidate list of projects and for the two CCS candidate projects that remain in the UK process. My officials have also confirmed our continued support for the one renewable and one CCS project the UK has on the NER reserve list. (The CCS reserve project also remains in the UK process.)

For clarity, the NER projects the UK has supported are:

Teesside CCS, White Rose Oxyfuel CCS and Sound of Islay Tidal as our three candidate projects;

Peterhead CCS and Kyle Rhea Tidal Turbine Array as the reserve projects.

Significant UK Government funding is required for the CCS projects. Our support for the CCS projects is therefore subject to them ultimately being successful in the ongoing UK Government competitive process. My officials have written to DG Climate Action to explain the next steps in our process and to reconfirm the substantial financial offer we have committed to CCS. DG Climate Action will now consider our response and we understand they aim to make award decisions to successful projects by the end of this year.

Advisory Committee on Civil Costs

Tuesday 30th October 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

The guideline hourly rates (GHR) for solicitors in legal proceedings are set by the Master of the Rolls. The Advisory Committee on Civil Costs (ACCC) was established in 2007 by the Ministry of Justice to provide advice on this and other issues— 12 September 2007, Official Report column 124WS.

I am grateful for the work which the ACCC has carried out since its inception. However, I have decided that the ACCC’s remaining function of advising on the GHR should be transferred to the Civil Justice Council (CJC) from January 2013. I envisage that a sub-committee of the CJC would be established to deal with this issue. The ACCC will be disbanded forthwith, which will reduce the number of advisory bodies.

This proposal does not go so far as Sir Rupert Jackson’s recommendation for a Costs Council as the new sub-committee’s standing role will be limited to a review of the GHR; other fixed costs will remain for the Lord Chancellor to consider in the first instance. However, there may be other costs issues on which the Lord Chancellor and judiciary would welcome advice from the new sub-committee from time to time. I will liaise with the Master of the Rolls, who chairs the CJC, concerning the membership, terms of reference and work to be undertaken by the CJC within the scope of its statutory role of keeping the civil justice system under review.

Inquests (Service Personnel)

Tuesday 30th October 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

My right hon. Friend the Minister for the Armed Forces and I wish to make the latest of our quarterly statements to the House reporting progress with the inquests into deaths of service personnel who have died on active service overseas. As the season of remembrance approaches, we make this statement in solemn recognition of the sacrifice made by our service personnel who have given their lives for their country. We honour too the sacrifice of the families they have left behind. Our thoughts are particularly with the families of the 13 service personnel who have died since our last statement in July.

In this statement we provide details of inquests conducted by the Oxfordshire coroner, the Wiltshire and Swindon coroner and other coroners in England and Wales. This statement gives the position at 21 October 2012.

We have placed tables in both Libraries of the House giving supplementary information for this statement. The tables provide the status of all current cases. They include information about those cases where a board of inquiry or a service inquiry has been held or has been directed to be held.

The Ministry of Defence and the Ministry of Justice have worked together for several years to ensure that our processes are the best they can be. On 17 September His Honour Judge Peter Thornton QC took up post as the first Chief Coroner for England and Wales. He will have a number of specific powers and duties in relation to service personnel inquests. Most recently, on 24 September, we commenced section 12 of the Coroners and Justice Act 2009, which for the first time enables deaths of service personnel killed abroad on active duty to be investigated in Scotland, where the Chief Coroner thinks it appropriate. We wish him well and look forward to working with him.

Our Departments will continue to support the coroners who are conducting these inquests. Once again we record our sincere thanks to coroners, to their staff and to all those who help, support and inform families throughout the inquest process.

Both Departments have provided funding for additional resources for these inquests since October 2007 to the coroners for Wiltshire and Swindon and for Oxfordshire. This is because the airbase for the repatriation of fallen service personnel was previously located at RAF Lyneham in Wiltshire; repatriations were rerouted to the RAF Brize Norton airbase in Oxfordshire in September 2011.

Current Status Of Inquests

Since the last statement eight inquests have been held into the deaths of service personnel on operations in Iraq or Afghanistan. Altogether, 563 inquests have taken place in relation to service personnel who have fallen in Iraq and Afghanistan or have died in the UK of injuries received in those operations. In three cases there has been no formal inquest. In one of these, the serviceman died of his injuries in Scotland and it was decided not to hold a fatal accident inquiry. In the other two cases, the death was taken into consideration during the inquest proceedings for other service personnel who died in the respective incidents.

Open Inquests

Deaths in Iraq and Afghanistan

Currently 51 open inquests remain to be concluded into the deaths of service personnel in Iraq and Afghanistan. A total of 24 of these inquests relate to deaths in the last six months.

Nine of the open inquests have been retained by the Wiltshire and Swindon coroner and 19 by the Oxfordshire coroner. Coroners closer to the next of kin are conducting the remaining 23 inquests. Two hearing dates have been set at present.

Deaths of service personnel who returned home injured

Six inquests are open into the deaths of service personnel who returned home injured but sadly died of their injuries. These inquests will be listed when the continuing investigations are completed.

We will continue to inform the House of progress.

National Employment Savings Trust

Tuesday 30th October 2012 Written Statements

[The Minister of State, Department for Work and Pensions (Steve Webb)]

Later today the Government will publish the consultation document “The National Employment Savings Trust (NEST)—Proposals for amendments to the NEST Order”.

These proposed minor technical and consequential amendments will align the order with changes to automatic enrolment legislation. They will also provide clarity and certainty to NEST and the employers and members who use it.

The period of consultation will begin today and will end on 26 November 2012.

A draft amendment order is annexed to the consultation document, along with an initial assessment of the impacts.

I will place a copy of the consultation document in the Libraries of both Houses and it will be available later today on the Department’s website at: http://www.dwp. gov.uk/consultations/2012

House of Lords

Tuesday 30th October 2012 Lords Chamber

Tuesday, 30 October 2012.

14:30

Prayers—read by the Lord Bishop of Wakefield.

Private Military and Security Companies

Tuesday 30th October 2012 Lords Chamber

Question

14:35

Asked By

[The Lord Bishop of Wakefield]

To ask Her Majesty’s Government what assessment they have made of the effect of their use of private military and security companies upon the United Kingdom’s reputation, and its diplomatic and military relationships with those countries in which such companies operate.

[The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)]

My Lords, the Government use private security companies to support UK missions in countries emerging from conflict, principally in Afghanistan, Iraq, Libya and Yemen. They are not military companies and operate with the permission and co-operation of host Governments. We work with host Governments to address any concerns raised. We are working with the industry to raise standards globally by establishing a voluntary, independently audited and internationally recognised regulatory system that is practical, effective and affordable.

[The Lord Bishop of Wakefield]

My Lords, I am grateful to the Minister for her response but would like to press a little further. Has the use of such private companies instead of the Royal Military Police increased the risk of attacks by uniformed Afghans on Her Majesty’s government officials protected by armed contractors? I have in mind particularly the recent death of two British soldiers killed by an Afghan man wearing local police uniform. Does the Minister accept that such examples illustrate that it is now time for statutory regulation to ensure that the conduct of PMSCs does not aggravate local attitudes that may turn Her Majesty’s government officials into similar targets?

[Baroness Warsi]

The right reverend Prelate asks a very important question. He may be aware that private security companies are used in very specific tasks: they are used in a defensive not an offensive way, predominantly to protect embassies and provide close protection and sometimes rapid response. That is always done in conjunction with discussions with the states in which we work. The right reverend Prelate will also be aware of our obligations as a state under the Montreux document and the principles laid out in the international code of conduct which governs the conduct of private security companies.

[Lord Wright of Richmond]

My Lords, does the Minister accept that, in my experience, most diplomats regret the occasional need for close protection, whether by private companies or our own security personnel, since it constrains one of the main aims of diplomacy—to develop contacts as widely as possible and at all levels, and to travel round the country and not remain solely in the capital?

[Baroness Warsi]

The noble Lord makes an important point. As many noble Lords—especially those who have been provided with close protection either on behalf of the Government or by private security companies—will be aware, unfortunately it is a necessary part of some of the work that we do overseas. It enables us sometimes to travel beyond the capital to do exactly the kind of work that the noble Lord referred to.

[Lord Chidgey]

Is my noble friend aware that current research at Bristol University by Dr Higate shows that British companies generally operate on a low-profile basis, particularly in Iraq and Afghanistan, and their sensitivity to the reactions of the host populations reflects very well on the United Kingdom? Can she also address the serious shortcomings that have been found in the standard of and mandatory training for armed close protection roles undertaken by these private military and security companies?

[Baroness Warsi]

The noble Lord will be aware that many of the concerns in this area are historic and dependent on what happened not so much with UK private security companies but, predominantly, with US private security companies. Despite that, the UK led on the Montreux document, which laid out the obligations that we have. The UK was also one of the first to support the international code of practice, and one-third of the companies that have signed up to the code are British. We are also working with the industry to put forward standards so that the code is properly implemented and its implementation is audited. I am assured that we will be able to make an announcement in the next few weeks.

[Lord Mackenzie of Framwellgate]

My Lords, will the Minister comment on how the security industry will be regulated once the Security Industry Authority has been abolished in the bonfire of quangos?

[Baroness Warsi]

The Government are discussing that with the UK auditing service. It will propose an independent auditing body or bodies which will effectively then regulate and ensure that the code is being properly implemented.

[Lord Hamilton of Epsom]

Will my noble friend confirm that one reason why piracy has been reduced so radically is the use of private security companies on merchant shipping going through pirate-infested areas?

[Baroness Warsi]

It has been a contributory factor.

[Lord West of Spithead]

My Lords, is the noble Baroness content that there are adequate RoE and lines of accountability on board merchant vessels if one of those security companies should happen to kill some alleged pirates?

[Baroness Warsi]

I am not sure what the specific answer to that question would be, but I am aware that the whole point of having a code of conduct—and thereafter having international standards against which the code of conduct is implemented, and thereafter having an audit of those standards—is to ensure that there is voluntary acceptance of certain rules of behaviour that have to be applied by all private security companies.

[Lord Hunt of Kings Heath]

My Lords, on that point, having an audit is not a substitute for proper statutory regulation. Will the noble Baroness answer my noble friend’s question? Why are the Government getting rid of that regulation?

[Baroness Warsi]

The Government feel that the best way to proceed in this area is to work on a voluntary system in which the trade organisations and the private security companies working in this area are involved. This is a matter which relates to the private security companies of many countries, and it is therefore important that we have an international standard against which companies can be audited.

[Lord Dobbs]

Is my noble friend aware that British companies operating in this difficult area have a high regard internationally? Can she give us an indication of how much money the British Government spend on those private security companies in the course of a year?

[Baroness Warsi]

I can, my Lords. The specific spend by the Foreign and Commonwealth Office on centrally awarded contracts to private security companies was approximately £47 million in 2009-10, £43 million in 2010-11 and £47 million in the current year.

Russian Federation: Council of Europe

Tuesday 30th October 2012 Lords Chamber

Question

14:43

Asked by

[Lord Tomlinson]

To ask Her Majesty’s Government what is their assessment of the report of the Parliamentary Assembly of the Council of Europe The Honouring of Obligations and Commitments by the Russian Federation.

[The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)]

My Lords, the report is a detailed summary of the state of human rights in Russia today. It addresses some of the human rights issues of most concern in Russia, such as the new restrictive legislation on non-governmental organisations, the case of Sergei Magnitsky, the murders of human rights defenders and human rights violations in the North Caucasus region. We support the overall focus of the resolution, which gives recommendations to help to improve human rights protection in Russia.

[Lord Tomlinson]

My Lords, in view of the seriousness of this report, are Her Majesty’s Government concerned that the report was blocked from being sent to the Committee of Ministers because it did not attain the necessary two-thirds majority, largely as a result of the political group in which the Conservative Party sits in the Council of Europe voting against it? The group voted with Putin’s United Russia party and not for a proper examination by the Committee of Ministers. Therefore, will the Minister herself ensure that our ambassador to the Council of Europe in Strasbourg is instructed to raise this important report with the Committee of Ministers?

[Baroness Warsi]

The noble Lord will be aware that the UK Government are not part of the process by which the Parliamentary Assembly adopts reports and makes recommendations. He will also be aware that the government response to the report lays out those parts of it that we agree with and those parts that we may not. The process that is adopted thereafter as to whether this matter will be dealt with by a simple resolution or will go further in the form of a recommendation is a matter for the Parliamentary Assembly.

[Baroness Falkner of Margravine]

My Lords, the Minister will be aware that the report mentions Mr Sergei Magnitsky. She will be aware that the European Parliament passed a resolution that allows member states to impose a visa ban and to freeze the assets of the 60 officials who have been identified as being implicated in his murder. What are the British Government doing in terms of a visa ban or indeed of freezing the assets of those individuals?

[Baroness Warsi]

The UK’s position on the Magnitsky case is very clear: this was a terrible crime and needs to be fully investigated as soon as possible. We have made that clear to the Russian Government on a number of occasions. With regard to calls for a visa ban, we do not prejudge visa applications but, where there is independent, reliable and credible evidence that an individual has committed human rights abuses, that individual will not normally be permitted to enter the UK.

[Lord Anderson of Swansea]

My Lords, is the Minister aware that, in spite of the Litvinenko affair and the Magnitsky matter, the Conservative group in the Council of Europe has formed a very cosy relationship in its political group with Putin’s party? Indeed, on this occasion it protected the Russian delegation from that vote. Will she therefore remind her Conservative colleagues of the fate of the young lady of Riga who also formed a rather close relationship with the Russians?

[Baroness Warsi]

I do not know whether I can comment on that particular matter, but the noble Lord will be aware that we have a number of delegates who form part of the Parliamentary Assembly of the Council of Europe. They are not an extension of the Government; indeed, they have quite independent views. It is a matter for the Government to lay out their position, but that is not something that we can force upon those members.

[Lord Flight]

My Lords, I understand that this lengthy report, covering a period of seven years, has findings positive and negative, but in particular expresses concerns about changes in law this year that will inhibit democratic development in Russia. Do the Government take the view that the recommendation should have been adopted—the reason for it not being adopted still seems somewhat unclear—and, in the absence of an adopted recommendation, is Russia left free to avoid responsibility for its obligations as a Council of Europe member state?

[Baroness Warsi]

My Lords, we believe that the recommendation should have been passed, not to chastise Russia for its human rights record but to help to improve human rights protections within that country, as we would do for any Council of Europe member state. It is unfortunate that in this particular matter the procedural points became the focus of the debate rather than the real substance that was in the report. It is essential that every member of the Council of Europe, including Russia, respects the obligations and commitments that it signed up to on joining the organisation, whether or not there is a recommendation.

[Lord Grenfell]

My Lords, is the Prime Minister, in dismissing out of hand the European Court of Human Rights’ ruling on voting rights for prisoners, not giving aid and comfort to members of the Council of Europe such as Russia that see fit to pick and choose which of the undertakings they made when joining the Council they wish to honour?

[Baroness Warsi]

As I now have the human rights brief at the Foreign and Commonwealth Office, I see that there is an interesting dilemma in terms of human rights records around the world and the position that we adopt on them. There is also the question of how we implement human rights decisions in relation to the UK. However, I am very front-footed and clear when I say that abuses that are taking place in places such as Russia, which form the basis of the report that noble Lords are aware of, are very different from the case of voting rights for prisoners.

[Lord Alton of Liverpool]

My Lords, is the Minister aware that at a meeting in your Lordships’ House this morning, Mr Peter Horrocks, who runs the BBC World Service, expressed concern about the blocking of the BBC by Russia? In the context of the right to free speech and the importance of information and encouragement to those who uphold democracy in Russia, what are Her Majesty’s Government doing to raise our concerns about the blocking of the BBC World Service?

[Baroness Warsi]

The noble Lord can be assured that we raise these matters frequently. Specifically in relation to human rights defenders, many of whom are serving sentences or have paid with their lives, we raise specifically freedom of speech, which is becoming even more important when looking at some of the controls that have been introduced on online discussions of politics and other matters. The Government regularly raise these matters with the Government of Russia, especially around freedom of expression.

[Baroness Symons of Vernham Dean]

My Lords, the Minister has sought to distance herself and the Government from the decision of the Conservative Members who sought to block the report. Can she tell the House what action the Government have taken to engage with those Conservative Members who sought to block the report and how they are hoping to persuade them to adopt a more sensible and, indeed, proper attitude on these issues in future?

[Baroness Warsi]

I do not seek to distance myself from any Conservative Members of this House or another place. However, Parliamentary Assembly Members, who are cross-party and not representative of any single Government, have their views and opinions, and in those circumstances we cannot enforce government views. However, what we can do—and the noble Baroness is quite right to raise this—is to engage with them and put forward the Government’s position.

[Baroness Farrington of Ribbleton]

My Lords, would the Minister care to reconsider—

[Noble Lords]

Next Question.

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, I really do think it is unfair on the House to take another question when we are already in the 17th minute.

Homelessness: Rough Sleepers in London

Tuesday 30th October 2012 Lords Chamber

Question

14:53

Asked By

[Lord Sheldon]

To ask Her Majesty’s Government what proposals they have to reduce the number of people sleeping on the streets of London.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, the Government are committed to tackling rough sleeping. We have provided £400 million over four years to prevent homelessness, including £34 million to the Greater London Authority to tackle rough sleeping across the capital. My department is also providing £5 million to London to set up a social impact bond to help 750 entrenched rough sleepers in London. The mayor’s No Second Night Out scheme has been particularly successful in helping new rough sleepers in London off the street quickly, and we are investing to roll out No Second Night Out nationally.

[Lord Sheldon]

My Lords, I have seen two sleepers in a local street in London and others are close by. There is a need to offer suitable beds so that people are not sleeping in streets in London.

[Baroness Hanham]

My Lords, the mayor’s No Second Night Out scheme is being very effective. There are more than 2,000 hostel places in London each night and there are teams out consistently during the night. We anticipate that 80% of those who sleep out one night do not sleep out the next night.

[Lord Laming]

My Lords, the Minister will be aware of the statistics relating to the number of children and young people who run away from home each year, particularly young people who are in the care of local authorities. These young people often sleep rough and are in considerable danger. Will the Minister say what steps the Government are taking to pay particular attention to safeguarding these young children?

[Baroness Hanham]

My Lords, no one will know better than the noble Lord that local authorities have a particular responsibility for young people, particularly those under 16. At present, there is little evidence of children under 16 sleeping rough. If they do, it is for a very short time because local authorities and the leading young people’s homelessness charities, such as Centrepoint, take them in very quickly. I think 18 to 25 year-olds are more of a problem. They seem to sleep rough for a number of reasons, but I think I can reassure the noble Lord that there is very swift action if anybody under 16, certainly from the categories he knows about, is left out on the street for any length of time.

[Lord Storey]

My Lords, my noble friend may be aware of a recent survey which found that people sleeping rough on average had a 28% contact with police and only a 5% contact with outreach workers. Will she look at the Reading single homeless project, which found that it could reduce homelessness by 52% by targeting individual needs, whether they are related to drug abuse, alcoholism or mental health problems?

[Baroness Hanham]

My Lords, the noble Lord may know that my department initiated an across-department ministerial working group, which is concentrating on all aspects of homelessness, including rough sleeping. It has been very effective in finding ways of ensuring that the problems that the noble Lord raises are dealt with.

[The Lord Bishop of Hereford]

Does the Minister care to say whether Her Majesty's Government are likely to take up the suggestion made by the Royal Institute of British Architects in its report published four days ago that local authority pension funds might contribute to the cost of affordable housing and so address the issue of homelessness by that route? If the Government are not mindful to take up that suggestion, will they find funding by some other route so as to increase the provision of genuinely affordable housing?

[Baroness Hanham]

My Lords, the Government have taken a number of initiatives over the past couple of years to ensure that affordable housing is provided. The question of whether pension funds can be used for this is not something that I can address today. That would be, I think, a matter for each individual pension fund and I am not sure whether local government pension funds would be entitled to do that. If I can find the answer for the right reverend Prelate, I will do so, but I do not have a brief on that today.

[Baroness Armstrong of Hill Top]

My Lords, I want to assure myself and other noble Lords that the Minister is not complacent about this issue. The numbers of rough sleepers not just in London but throughout the country have risen substantially in the past year. We know that many of them now have mental health issues. The challenge of getting mental health services for rough sleepers is enormous, as I know only too well from trying to do so for rough sleepers around the north-east. For example, in Durham city, we have for the first time seven rough sleepers where we have never had them before. Are the Government tackling this urgently and are they going to commit to making sure that we end rough sleeping?

[Baroness Hanham]

My Lords, I can absolutely assure the noble Baroness that there is no complacency. This is a very unhappy situation for those who are sleeping rough and it is an unacceptable situation for the country in which we live. Perhaps that will answer the first part of the question. The second part of the question referred to those with mental health problems. It is fair to say that particularly in London, which is where the Question refers to, 43% of rough sleepers have mental health problems. Within that, of course, are hidden alcohol needs and drug needs. Services are already available to deal with those problems. Westminster has a mental health team. There are specialists to assess those conditions and to deal with them. But there is no complacency.

[Lord Rogan]

My Lords, statistics show that a higher proportion of ex-service personnel are sleeping rough compared with the population as a whole. Will the Government take urgent steps to address that problem?

[Baroness Hanham]

My Lords, the statistics are that 4% of those people sleeping rough are from the Armed Forces. My right honourable friend Grant Shapps, when he was Minister for Housing in the previous Parliament, had already made it clear that those from the Armed Forces absolutely received top priority. We are very aware of that problem. However, as I say, the figure is as low as four in one hundred.

Child Benefit

Tuesday 30th October 2012 Lords Chamber

Question

15:00

Asked by

[Lord McKenzie of Luton]

To ask Her Majesty’s Government whether they have plans further to restrict child benefit.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, the Government are exploring further options for making the welfare system fairer and more affordable. Details will be announced in due course.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for that reply, but I am not particularly comforted by it. We are, of course, among the shambles that is engulfing the introduction of the current change to child benefit policy for higher rate taxpayers—evidence, if we needed it, that policy should not be made on the hoof. Hundreds of thousands of people have been brought into the self-assessment process at a time when HMRC staff numbers are being savagely reduced. But my question for the Minister on the matter of evidence-based policy-making is to ask how he justifies the proposals aired by the right honourable Iain Duncan Smith, a fellow Minister, that child support for those unemployed should be restricted to just two children because, he asserts:

“Large numbers of families on welfare are having more children because they believe taxpayers will support them”.

Will the Minister give us the evidence for that assertion? Should such a policy ever be introduced, what impact does he think that there would be on child poverty in this country, which is already on the rise under this Government?

[Lord Sassoon]

My Lords, first, I am sorry that the noble Lord, Lord McKenzie of Luton, was not comforted in his terms by my answer. Does he disagree with the idea that the system should be fairer and more affordable? We know that the previous Government’s system was unaffordable, and we are putting that right. As to his question about some of the ideas that are being floated at the moment, it is simply not fair that it is possible for someone to be better off on benefits than they would be in work. How can we justify a system in which people in work have to make decisions about having a child or having another child based on what they can afford, whereas those out of work know that their benefits will just increase?

[Lord German]

My Lords, could the Minister help the House to understand the reasoning behind the statement by the Secretary of State for Work and Pensions, Mr Iain Duncan Smith, that the number of children in a family would be capped at two, which seems a strange way of doing family structure in this country? Was Mr Duncan Smith pitching for the 2015 general election manifesto or was he pitching for a change in expenditure of this current coalition’s policy? If it was the latter, what response did he get?

[Lord Sassoon]

My Lords, this idea, which is one of a number of ideas to meet the very big affordability and fairness challenge that we have, responds to concerns that, while working families have to consider affordability before having another child, those who are out of work do not, for the reason that I have already given—that their benefits will increase. My right honourable friends, the Chancellor and the Work and Pensions Secretary, are working together on ideas, of which this is but one.

[Baroness Hollis of Heigham]

Leaving aside issues of decency—and there are real questions behind that—how does the Minister reconcile two apparently conflicting government views? The first will come from his department; no doubt, with the arrival of the Pensions Bill in this place, he will say that we need more, younger workers to help to support an increasingly elderly population. But he will also say, no doubt, in support of his right honourable friend Iain Duncan Smith, that extra children are for the poor a luxury while for the rest of us they are a burden. How does he reconcile these two statements—that we need more young people to support pensioners but we cannot afford to have them as taxpayers?

[Lord Sassoon]

My Lords, that is a complete misrepresentation of the position of my right honourable friend the Work and Pensions Secretary, so the question becomes completely redundant.

[Baroness Afshar]

My Lords, are the Government aware that for many minority families, particularly women working in the informal, “black”, sector, it is not easy to fill the forms required or meet the criteria established? Yet for those people family allowance is the only means to enable them to continue working.

[Lord Sassoon]

My Lords, what we are talking about principally this afternoon is the restriction of child benefit. The restriction starts to come in only where one taxpayer in the family is earning more than £50,000. In those circumstances, clearly there will generally be a capability for dealing with the forms. I went on to the website this morning and while I could be highly critical of some of HMRC’s forms, I found that the guidance on the changes to child benefit was remarkably clear and easy.

[Lord Davies of Oldham]

My Lords, the Institute for Fiscal Studies has indicated that under present government welfare cuts 80,000 children each year will be reduced to poverty. Have the Government ambitions to increase that number?

[Lord Sassoon]

My Lords, the changes to child benefit affect only the 15% of highest earning families in this country. This Government believe that those with the broadest shoulders should share the pain of the massive deficit consolidation and reduction programme that we inherited from the previous Government. That is what we will continue to do.

Draft Enhanced Terrorism Prevention and Investigation Measures Bill

Tuesday 30th October 2012 Lords Chamber

Motion to Agree

15:06

Moved by

[Lord Strathclyde]

That, notwithstanding the Resolution of this House of 28 May, it be an instruction to the Joint Committee on the draft Enhanced Terrorism Prevention and Investigation Measures Bill that it should report by 23 November 2012.

Motion agreed.

Business of the House

Tuesday 30th October 2012 Lords Chamber

Motion on Standing Orders

15:06

Moved by

[Lord Strathclyde]

That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Wednesday 31 October to allow any Mental Health (Approval Functions) Bill brought from the Commons to be taken through its remaining stages that day.

Motion agreed.

Benefit Cap (Housing Benefit) Regulations 2012

Tuesday 30th October 2012 Lords Chamber

Motion to Refer to Grand Committee

15:06

Moved by

[Baroness Stowell of Beeston]

That the draft Benefit Cap (Housing Benefit) Regulations 2012 be referred to a Grand Committee.

Motion agreed.

Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (Consequential Modifications) Order 2012

Tuesday 30th October 2012 Lords Chamber

Motion to Approve

15:06

Moved By

[Lord Wallace of Tankerness]

That the draft Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (Consequential Modifications) Order 2012 laid before the House on 10 July be approved.

Relevant documents: 7th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 23 October.

Motion agreed.

Winterbourne View

Tuesday 30th October 2012 Lords Chamber

Statement

15:07

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I shall now repeat as a Statement an Answer given earlier today by my honourable friend the Minister for Care Services in another place on the safeguarding of former Winterbourne View residents. The Statement is as follows:

“The review into the abuse at Winterbourne View Hospital established by my right honourable friend the Member for Sutton and Cheam set out 14 actions to transform care and support. Central to the review is ensuring the safety and well-being of these very vulnerable people. I shall publish the final report before the end of November.

When Winterbourne View closed, NHS commissioners put in place independent clinical and managerial supervision and commissioned an independent assessment of every patient. The Care Quality Commission worked with commissioners to relocate Winterbourne View patients to suitable alternative placements.

The Department of Health review team commissioned NHS South of England to follow up the 48 patients who had been in Winterbourne View in March and September of this year. That revealed that 19 former patients were the subject of safeguarding alerts. In response to this, officials asked commissioners to take the appropriate action and confirmed that a follow-up would take place in six months’ time.

I was concerned to be informed that this follow-up had revealed that there are current safeguarding alerts for six former patients. I am assured that these are all being followed up to ensure the safety and well-being of the individuals concerned. Furthermore, the September follow-up exercise revealed that 32 Winterbourne patients were now living in the community in their own family homes, supported living or a residential care home; 16 were still living in hospital settings.

The priority is to improve commissioning to develop the good local services which will prevent people being inappropriately sent to hospital. We are working closely with the NHS Commissioning Board, the Local Government Association and directors of social services on what support local services need.

While a small number of people will need hospital treatment, we expect to see and indeed must see a substantial reduction in the number of in-patients. We intend to strengthen safeguarding arrangements to prevent and reduce the risk of abuse and neglect of adults in vulnerable situations. Where there are safeguarding concerns, the local safeguarding of adults boards need to be closely involved. These boards will be placed on a statutory footing, ensuring a co-ordinated approach to local adult safeguarding work.

This Government will put the necessary legislation for safeguarding adults boards, and local councils should bring clarity to their roles and responsibilities. But it is the responsibility of the care provider to ensure a culture of safety, dignity and respect for those in their care, including stopping abuse before it happens. Those providers must be held to account for the care they provide”.

My Lords, that concludes the Statement.

15:11

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, Lord Howe, for repeating as a Statement the Answer to the Private Notice Question in the other place.

This has been an horrific case, and recent convictions have revealed criminal and inhuman acts which have caused such terrible abuse to vulnerable people who deserved very much better than that. The “Panorama” programme this week has continued to highlight inappropriate and poor-quality care. It is shocking that the first review, mentioned by the noble Earl, revealed that 19 former residents of Winterbourne View were still subject to safeguarding alerts, and at the follow-up review six former residents were still subject to those alerts. Not all those alerts mean that someone has been harmed. None the less, the “Panorama” programme said that there was one instance of assault, and another case has resulted in a criminal investigation. I should like to ask the noble Earl whether the families of all patients with a safeguarding alert have been given full details. What specific action has been taken as a result of those alerts? Can the Minister guarantee to the House that all patients are no longer at risk?

I should also like to ask him about the responsibility of the local commissioners. I believe that a considerable number of commissioners are responsible for the 51 former Winterbourne View residents. Can he say whether the commissioners now have a proper plan in place to ensure that the former residents receive good-quality care? Has the Care Quality Commission recently inspected all the providers that the former Winterbourne View patients were moved to? The “Panorama” programme raised particular concerns about Postern House, which the CQC inspected in January this year and said it met all the essential standards of quality and safety, and that suitable arrangements were in place to ensure that people were safeguarded against the risk of abuse. Yet the programme revealed a number of problems at Postern House over several years, including over a former Winterbourne View patient in June this year. Is the noble Earl, Lord Howe, confident that all the patients currently in Postern House are protected from the risk of abuse?

Of course, the noble Earl is right to say that responsibility lies ultimately with providers, commissioners and the regulators, but it is Ministers who set policy and have responsibility for ensuring that it is implemented. The noble Earl will know that organisations such as Mencap have been concerned that the Government are not moving quickly or strongly enough to end the practice of sending patients with learning disabilities to long-stay institutions, far away from their families and friends. Will the review he mentioned that will be published by the end of November contain a cohesive strategy for people with learning disabilities? Will this practice of placing people with learning disabilities in institutions a long way from families and friends be discontinued? Is the noble Earl satisfied that commissioners understand their responsibilities and that only, as he said, in limited cases should in-patient services be used?

The role of the regulator, the Care Quality Commission, is of course very important. I very much welcome the appointment of David Behan as the new chief executive but I remain concerned that the huge workload being placed on the CQC means that it is not able to devote itself to areas where we need strong regulation. Is the noble Earl confident that the CQC is now able to take on the responsibilities that have been placed upon it, particularly with regard to focusing on the institutions and organisations where the most vulnerable people are placed?

Finally, I agree with and echo the Minister’s point about the ultimate responsibility of providers. However, is he satisfied that the current arrangements ensure that those providers are regulated effectively—that commissioners know what they are commissioning and are able to monitor performance? Does he recognise that there are real concerns about whether the staff in such institutions are given enough support and training? Given that many of the workers in these homes are unregulated care assistants, does he not think that the time has come to reconsider the regulation of health and social care assistants?

15:17

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Hunt, for his comments and questions. Turning, first, to the very distressing programme that was shown on television last night, we know that some of the people who were at Winterbourne View hospital are now receiving good-quality personalised care in community settings that is appropriate for them. However, it is deeply concerning that some people have been so affected by what they experienced at Winterbourne View that they have had to go into more secure settings. Equally, we are very concerned that others continue to experience poor-quality care.

The Government take this very seriously, and that is why Department of Health Ministers set up a wide-ranging review not just into what happened at Winterbourne View but into the state of care and support services for people with learning disabilities or autism who may have mental health problems or behaviours described as challenging. We have heard a lot from people who have experienced the services, as well as from their families. We have been working across the health and care sector to identify what needs to be done to make sure that vulnerable people get the care and support that they deserve.

I make no apology that that has taken some time. We are determined to treat this issue very seriously and bring forward a firm programme of action to really make a difference. We will publish the final report of the DH review shortly, together with a concordat setting out the commitment for change and inviting external partners to sign up to specific actions to deliver that change.

The noble Lord asked me about commissioning. In general terms, in our perception commissioning has been too remote from the patients whom it is intended to serve, and I think that the noble Lord’s remarks reflected that point. Clinical commissioning is intended to push decision-making much closer to patients and local communities with the aim of ensuring that local people are able to hold commissioners to account more effectively for what they achieve. Commissioning decisions will also be better informed by local clinical knowledge and insight.

The noble Lord asked whether all families have been given full information about the alerts. In essence, that is a matter for the local commissioners but I can tell him that the Department of Health has reminded health and care bodies of their responsibilities in that area.

The noble Lord called into question the capacity of the CQC to take on as much work as we are requiring of it. He will know that the department has undertaken a performance and capability review of the CQC. The resulting report was published back in February. It found that the CQC had made significant progress in the previous nine months, and I believe that it is continuing to make that progress. It has shown, in particular, a new focus on its core purpose—to protect patients by concentrating on essential standards—and in strengthening its operational base. The review has already made recommendations to strengthen the board of the CQC and board structures, including changing the board, so that instead of comprising only non-executives, it becomes a unitary board of majority non-executives, with senior executives on the board where they can be better held to account. It also recommended that the CQC needs to review and reinstate the board support and development programme and strengthen capability at executive team level. The department will oversee the implementation of these recommendations.

I share the noble Lord’s confidence in David Behan as chief executive of the CQC, having got to know him quite well during my time in the department. The noble Lord raised the issue of skills and training. We have had a number of debates on this subject over the past few months and, as he will know, the department has commissioned Skills for Health and Skills for Care in partnership with unions and employers, regulators and educators, to produce by January next year national minimum training standards and a code of conduct for healthcare support workers and adult social care workers.

I would just say, however, that to my mind the skills required in looking after those with learning disabilities and challenging behaviour are of a different order from the skills needed in other settings and we need to nuance the standards to ensure that the right skills are being imparted to the right people. Commissioners need to encourage hospitals and assessment and treatment units for adults with these disabilities to make sure that their employees are signed up to the proposed code of conduct that we plan to put in place and the minimum induction and training standards for unregistered health and social care assistants. We are working with the National Skills Academy for Social Care to explore how registered managers can get better support, which includes regular monitoring and supervision. Indeed, Skills for Care is developing a framework of guidance and support on commissioning work for solutions to meet the needs of people with challenging behaviour.

Finally, the noble Lord asked me whether I was satisfied that Postern House represented a safe and secure environment. Following the programme last night, my officials are pursuing that matter with urgency, as we speak, and once I have an assurance to give him about the current state of affairs at that care setting, I shall be happy to pass it on to him.

[Baroness Northover]

My Lords, I remind noble Lords of the Companion, which says that Statements are a time for brief comments and questions, not for immediate debate. If noble Lords are brief as many as possible will be able to contribute.

15:24

[Lord Laming]

My Lords, the Minister has made it plain that it has been the Government’s position for some time that people with learning disabilities should be enabled to live with local personalised services, supported in the community. The fact that some former residents of Winterbourne are now living with their families is an indication that this policy has been implemented all too slowly. There are too many units like that around the country. Will the Minister tell the House what levers are being employed to speed up this policy so that people have a range of local services designed to meet their personal needs?

[Earl Howe]

My Lords, I am absolutely in agreement with the noble Lord, Lord Laming, that it is really important that people are held to account for making change happen. We have indicated what we think that change should be, and that is why we have developed a concordat with key partners to get them to commit to the actions they will take. We also plan to strengthen the learning disability programme board, in particular to make sure that key delivery partners—such as the NHS Commissioning Board, the CQC, ADAS and the Local Government Association—are core members. The board will review progress on implementing the action set out in the final departmental report and the concordat. We have tried to address the issue that the noble Lord homed-in on—which is speed of action—but the core of his point was that there are too many people currently in specialist in-patient learning disability services, including assessment and treatment units, and that they are staying there for too long. This is often due to crises which are preventable or which can be managed if people are given the right support in their own homes and in community settings. That is the agenda that faces us.

[Baroness Jolly]

My Lords, what action can be taken against partners that fail to comply with the concordat?

[Earl Howe]

My Lords, I think that part of this involves defining roles and responsibilities. There is no single answer to my noble friend’s question. However, the transparency of the delivery of care, measuring outcomes and measuring the quality of commissioning in local areas are all important. It is also important to ensure that systems are in place to expose poor practice when it occurs. The problem with Winterbourne View is that, for too long, people did not know that those dreadful things were happening. Therefore, levers such as the introduction of local Healthwatch, the promotion of the new elements of the NHS constitution and ensuring that the CQC focuses its attention on where risk may most strongly lie, all have to be considered in the mix. I can tell my noble friend that this very subject will be covered in the report that my department will be publishing by the end of next month.

[Lord Elton]

My Lords, my noble friend is right: the care of people with learning difficulties requires a different order of commitment, compassion and patience. The Government are putting some weight on referring and sending people with learning difficulties out of institutions and into private homes. Can he give us reassuring news about the ease or difficulty of supervising the quality, consistency and continuity of the care which can be given in circumstances where these people are dispersed and each individual needs some kind of monitoring allocation of their own?

[Earl Howe]

My noble friend is absolutely right: this is not a simple matter. That is why we believe that commissioning should not be remote from those for whom care is commissioned. There needs to be regular monitoring by commissioners of the quality of the service that has been commissioned. Equally important, commissioners need to satisfy themselves on the suitability of the placement in the first instance. Best practice and guidance are clear: people with learning disabilities, autism or behaviour that challenges should benefit from local, personalised services and should be supported to live in the community wherever possible. The creation of clinical commissioning groups and health and well-being boards will encourage that local dialogue and insight to make sure that the services available in an area are appropriate and of a capacity for those who require them.

[Baroness Donaghy]

My Lords—

[Baroness Emerton]

My Lords—

[Baroness Northover]

My Lords, I have been keeping a tally and it is the turn of the Labour Party and then the Cross-Benchers.

[Baroness Donaghy]

Is the Minister satisfied that not a single senior manager or owner went to jail as a result of the Winterbourne View scandal? Given that, how on earth is a culture change going to be promoted in these organisations? Can he assure the House that the responsibility and any judicial changes will be considered as part of any review?

[Earl Howe]

My Lords, the noble Baroness makes an important point. We have been clear that those who lead organisations where people suffer abuse or neglect should be held accountable. We have made it clear that there is a gap which needs to be addressed. A range of options is available through regulation; for example, by barring people from running care homes or hospitals ever again or, indeed, through criminal sanctions. As I have mentioned, very soon we will publish our final recommendations on what more can be done to prevent abuse and protect those who are in vulnerable situations.

[Baroness Emerton]

My Lords, I thank the noble Earl for his response in terms of support workers, and particularly on challenging behaviour. My past experience nearly 20 years ago of decanting hundreds of patients from large institutions satisfactorily into the community was due to the fact that the psychologists made an independent assessment of each individual of their clinical and environmental needs, and thus the training needs of the support workers. Can the Minister assure us that a holistic approach in terms of multi-professional involvement will be taken, and that it will particularly be led by evidence-based psychologists who understand challenging behaviour?

[Earl Howe]

I agree fully with the noble Baroness. The aim and aspiration for this group of individuals is that they should benefit from personalised services. What that means is that their needs should be individually assessed professionally by multi-disciplinary teams. The noble Baroness did not do this, but there are some who suggest that we need to get rid of in-patient services altogether. There are individuals who will continue to require in-patient services, but these should be used only in very limited cases. We need to aim towards a situation where no one is sent unnecessarily into in-patient services for assessment and treatment. We know that that has not been happening. For the small number of people for whom in-patient services may be needed for a short period, the focus has to be on providing good quality care that is safe, caring and open to the community, which is another important aspect, and that people can move on from these services quickly. Planning starts from day one to enable people to move out of the in-patient setting into more appropriate care as quickly as possible. That comes back to intelligent commissioning.

[Baroness McIntosh of Hudnall]

My Lords, is it not the case that a great many workers in this sector are extremely low paid? Does the Minister think that there might be any correlation between the fact that they are low paid and the quality of care they deliver? I do not mean to imply that there is any excuse for the sort of behaviour that was revealed in the “Panorama” programme, but could any form of pressure be applied by regulators and commissioners to the commercially driven organisations that provide this care so as to prevent them continuing to employ people on very low wages to do such sensitive work?

[Earl Howe]

My Lords, there is more than a nugget of truth in what the noble Baroness says. Many of us have been troubled for a long time that work of this kind is insufficiently valued by society, and that is reflected in the rates of pay. That is why I am a firm believer in raising skills in this sector as a reflection of the value we place on care workers. The programme that we have in train over the coming months should steadily deliver that. To come back to the commissioning question, I am also a believer in ensuring that commissioners should be satisfied that the settings to which they send individuals have an appropriate mix of skills to look after the people concerned. That has not always happened. There is no single answer to this, but I identify myself with the particular point she has raised about remuneration.

[Lord Cotter]

My Lords—

[Viscount Tenby]

My Lords—

[Baroness Northover]

I think it is the turn of the Liberal Democrats and then maybe the Cross-Benchers after that.

[Lord Cotter]

My Lords, I very much welcome the mention of training once again today. It is so important that support workers are trained. One issue that has come to my notice quite frequently is that through a lack of training, support workers question the trained professionals an awful lot. The management also need to be trained to back up the professionals who are trained in their job as a vocation, so that the less well trained support workers respect their decisions.

[Earl Howe]

I agree with my noble friend. Where supervision is required, it is the job of the manager to ensure that it takes place, and that the supervision, staff ratios and so on are appropriate. We come back to the question of the responsibility placed on the shoulders of managers and proprietors of care homes. As the Statement made clear, this is very much a responsibility of providers, who need to be held to account for the quality of care that they provide.

[Viscount Tenby]

My Lords, I declare an interest both as a trustee of an organisation dealing with women with learning disabilities and also as a father of someone in that category. Although everyone can applaud the move to independent living within the community—nothing could be better—this has considerable financial implications, at a time of great financial stringency and rationing within the NHS. Can the noble Lord assure me that sufficient funds will be found and made available for this most important development?

[Earl Howe]

My Lords, the commissioning of this type of care will, in the future, be the joint responsibility of clinical commissioning groups and local authorities. We are encouraging as much close co-operation as possible at a local level. The noble Viscount will know that across-government funding is tight. However, we as a Government took the decision to protect the health budget, which is in fact rising in real terms every year of this Parliament. That does not reduce the pressure placed on the budget, because historically the pressures on the health budget have been higher than the rate of inflation; nevertheless, in protecting the health budget, we are also supporting local authorities to the tune of more than £7 billion over the spending review period to ensure that their social care services are not seriously depleted or damaged. It would be idle of me to say that there is no problem, but the funding available should be enough to support these services over the medium term.

[Lord Clinton-Davis]

This is not a simple matter. Does the Minister agree that an interim report will not provide all the answers and that this matter ought to be kept under constant review by Parliament in due course?

[Earl Howe]

Yes, my Lords, I agree with that. We must not take our eye off the ball. Once this report comes out, we have to ensure that its recommendations are carried through and constantly monitored. It will be, in part, the job of the NHS Commissioning Board to hold the ring and ensure that local commissioners are supported with the proper guidance, and held to account for the outcomes that they achieve, across the whole NHS but particularly in this area. That focus on outcomes is important when we consider how the service is held to account. We will be publishing very shortly the final version of the mandate that the Secretary of State gives to the NHS Commissioning Board as the means by which the board will be held to account by Parliament and the public.

[The Earl of Courtown]

My Lords, I declare an interest as a patron of a home providing residential care for adults with autism spectrum disorder. What we have all heard, read and seen about the Winterbourne View care home has been quite terrible. Does my noble friend the Minister agree that there are many homes out there providing a very good service to people suffering from these problems?

[Earl Howe]

My Lords, I am very grateful to my noble friend because it is all too easy to sink into a state of despair over these services. He is absolutely right: many, many good examples of excellent care are being delivered to those with learning disabilities. The challenge is to ensure that best practice is spread, but I am grateful to him for reminding the House of that important fact.

[Lord Elton]

My Lords, learning-difficulty patients are extremely aggravating at times and their carers have enormous power over them and can be tempted to abuse it—hence the results we have seen. The same can be said of prisoners and prison officers. When I was Minister for the Prison Service many years ago I was aware of the problem of the abuse of prisoners by prison officers who had a tendency to bully. I commissioned work on identifying the psychological profile of potential bullies, which was useful in reducing that invasion of human rights in prisons. Will my noble friend look into a similar approach when it comes to the way in which carers are recruited?

[Earl Howe]

My Lords, my noble friend makes an important point. The thing that shocked us all in the context of the BBC programmes was the extent to which restraint and physical abuse occurred in care settings, which was clearly inappropriate and also extremely distressing and damaging to the individuals involved. We are working with the DfE, the CQC and other stakeholders to drive up standards and promote best practice in the kinds of areas my noble friend is no doubt thinking of, particularly in the use of restraint. We believe that there should be a set of core principles to govern restrictive physical interventions. We think the guidance needs to be updated and that there needs to be improved training in this area. We will particularly consider in our review what additional guidance is needed for specific groups, including people with learning disabilities and behaviour that challenges.

Crime and Courts Bill [HL]

Tuesday 30th October 2012 Lords Chamber

Committee (7th Day)

Relevant documents: 2nd Report from the Delegated Powers Committee, 2nd Report from the Constitution Committee.

15:45

Amendment 155ZA

Moved by

[Lord McNally]

155ZA: Before Clause 23, insert the following new Clause—
“Dealing non-custodially with offenders
Schedule (Dealing non-custodially with offenders) (which makes provision about community orders, restorative justice, community requirements in suspended sentence orders, compensation orders and fines etc) has effect.”

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, it may assist the Committee if I say a few words about the shape of this afternoon’s debate. A large number of amendments are down. The noble Lord, Lord Ramsbotham, has given notice of his intention to oppose the Question that Clause 23 stand part of the Bill. I shall also oppose Clause 23 because the whole aim of this process is now to replace Clause 23 with the outcome of the Government’s consultation that allows this debate today.

I see the proceedings today and on 13 November as running in this way. Today, we will have, to all intents and purposes, the kind of Second Reading debate that we would have had if this work had been in its proper place when we reached Clause 23. It has been agreed through usual channels to recommit the provisions of the community sentencing and deferred prosecution agreements so that we can effectively debate them in two stages; first, today’s Second Reading-style debate and, secondly, a Committee-style debate on 13 November, when noble Lords will be able put down appropriate amendments. Today, Second Reading rules apply. For good order, I shall move separately the two blocks of amendments, those referring to community sentencing and those to deferred prosecution agreements. Our first debate will be on the community sentencing proposals. When that debate is complete, I will close that debate until 13 November and then make some opening remarks on the deferred prosecution arrangements, which will allow another Second Reading-type debate. I hope that that is clear to noble Lords and will allow us a good, well informed debate on both sets of proposals.

The amendments will strengthen the community sentencing framework to ensure that non-custodial sentences provide robust punishment, are effective in reducing reoffending and give a better deal for victims. The amendments give effect to a number of proposals in the Punishment and Reform: Effective Community Sentences consultation that the Government published in March of this year. As noble Lords will be aware, non-custodial sentences make up the great majority of sentences imposed by our courts. In 2011, fines and community orders made up around 80% of the sentences handed down by the courts. Given those numbers, it is clearly vital that sentences served in the community punish offenders, prevent further offending and repair the harm caused to victims and communities.

Our current community sentences framework delivers some of those purposes better than others. For example, community orders can be effective at tackling the causes of reoffending. The reoffending rate for adults subject to court orders in the 12 months ending September 2010 was 34%. The reoffending rate has fallen by 3.9 percentage points since 2000. Although there is still further to go, these figures are evidence of the hard work and dedication of all of those who work with offenders within probation and other organisations.

However, at present, community orders do not always inspire public confidence. Some community orders do not contain an element that the public would consider punitive, demanding or restrictive. For example, in 2011, around 10% of community orders contained only a supervision requirement, while the percentage of successfully completed orders is still low. The Government are determined to increase public confidence that community orders provide a proper sanction for criminal behaviour. Only in this way can community sentences be effective at tackling the causes of offending while reassuring victims and communities that justice has been done.

There is also scope for community orders to do much more to provide reparation to individual victims and communities affected by crime. It is true that around one-third of all requirements commenced with the probation service are community payback. In 2011 around 50,000 community orders had a compensation order imposed alongside them. But while some community orders already engage victims and offenders in restorative activities, the Government believe that there should be much greater use of restorative justice across the community sentencing framework and beyond.

Before I go into the detail of these amendments, it may assist the Committee if I summarise the responses to our consultation. We received just under 250 responses from a wide range of criminal justice professionals, representative groups, private and third-sector organisations and others. Practitioners have been clear that we need to trust their professional judgment and expertise, and that in doing so it is vital we retain the flexibility of the community order framework. They have also been clear that a one-size-fits-all approach to reforming community orders will not work.

The feedback has been critical in refining and reshaping our proposals. As a result, we have decided not to take forward some proposals. For example, we received a wide range of views on our original proposal for a centrally mandated intensive community punishment order but a common theme was the need to shape intensive orders around local needs. Changes to community orders under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will give courts new and strengthened requirements to impose on offenders and will increase their flexibility to tailor rehabilitative requirements to offenders’ needs. These changes should provide the courts with more flexible and robust community order requirements that can be combined in creative ways to provide a sentence that delivers intensive punishment but is tailored to local circumstances.

Similarly, the Government have listened to the views of respondents on our original proposal for a fixed penalty for certain breaches of community orders and on giving offender managers the power to impose them. Instead, we have considered alternative means of making the breach process swifter and more immediate for offenders. For example, a significant cause of adjournment of breach hearings is that the defendant is not present. We propose to do further work with the courts, judiciary and probation service to explore improvements in operational procedures for dealing with breaches.

Turning to the detail of our amendments, the core provisions are to be found in the new schedule to be inserted by Amendment 155EZA. Part 1 of the new schedule flows out of our original consultation proposal to require all community orders to include at least one specified punitive element. The Government continue to believe that community orders must represent a clear sanction for criminal behaviour. However, we have listened to the views of respondents who argued that what is punitive for one offender may not be punitive for another and that the courts are best placed to determine what is an appropriate punishment. Part 1 will therefore require courts to impose an element that fulfils the purpose of punishment as part of every community order. That element can either be a requirement of a community order or a fine. The fact that a community order includes a punitive element does not mean that it may not also include a requirement or requirements that are rehabilitative.

In response to the feedback we have received, the duty does not specify what requirements courts should impose. However, based on comments from sentencers and other practitioners on what they generally consider to be a punitive requirement, a punitive element might generally include a restriction of liberty that represents a recognisable sanction to the public, such as a curfew, exclusion or community payback. Many community order requirements are capable of delivering both punishment and rehabilitation at the same time.

The Government have also borne in mind that there may be a minority of offenders for whom a requirement that fulfils the purpose of punishment is not appropriate. The duty therefore provides for an exemption where there are exceptional circumstances that would make it unjust to impose a punitive element. We received a wide range of views from practitioners on cases in which a punitive element might not be appropriate. Ultimately, what constitutes an exceptional case can relate only to the circumstances of each individual case, and the Government believe that that is properly a matter for the courts.

Part 2 of the new schedule amends the courts’ existing powers to defer sentencing in order for a victim and offender to take part in restorative activities. As noble Lords will be aware, restorative justice can have a positive impact on both victim satisfaction and reoffending. The Government believe that access to restorative justice should be available for all victims at all stages of the justice process, so that, where appropriate, they can opt-in at a time that is right for them. For some victims, that may happen immediately after an incident occurs, while other victims may want to participate in a restorative justice process post-sentencing.

We have noted in particular the significant support that consultation respondents expressed for increasing the use of restorative justice between conviction and sentence and the potential benefits that that could have for both victims and offenders. New Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000, as inserted by Paragraph 5 of the new schedule, therefore makes it clear that courts can defer sentences until a restorative activity has taken place, if that is the course of action that both the victim and the offender choose.

This amendment is an integral part of the Government’s wider work on developing a cross-criminal justice system framework for restorative justice. The framework will seek to ensure that there is a coherent vision of how restorative justice should apply across all stages of the justice process, including how we build local capacity within available funding and how we ensure a consistently high quality of delivery through accreditation and training standards.

Part 3 of the new schedule removes the current £5,000 cap on a single compensation order that applies in the magistrates’ courts for adult offenders. The Government are committed to ensuring that as many victims as possible receive financial compensation from their offender. This change will give magistrates greater flexibility to impose appropriate levels of compensation in cases where significant harm may have been involved; for example, in environmental offences or criminal damage offences.

Part 4 of the new schedule amends courts’ powers to use technology to monitor offenders electronically as part of a community order. Current legislation already allows electronic monitoring technology to be used to monitor compliance with any other requirements imposed by the court as part of a community order. The vast majority of electronic monitoring is currently delivered by way of radio frequency technology. This technology has proven to be robust and reliable and an accurate way of monitoring an offender’s compliance with their curfew requirement. However, its capability is in practice limited to monitoring whether the offender is present at a specified address during specified times. The Government want to harness recent developments in technology to make greater use of location monitoring technologies, such as GPS, for offenders serving community orders. The National Offender Management Service is currently recompeting its contracts for providing electronic monitoring, which will include this new technology.

In addition to using location monitoring technology to enforce existing community order requirements, the Government propose to give the courts power to track offenders for the purposes of deterring crime, public protection and crime detection. The Government are clear that implementation of the new provision will be subject to the relevant technology being affordable and fit for purpose and to appropriate safeguards for its use being in place. Among other things, the Secretary of State will be under a duty to publish a code of practice setting out the appropriate tests and safeguards for the use, retention and sharing of any collected data.

Part 5 of the new schedule amends courts’ powers to order offenders to provide a statement of their financial circumstances before imposing a financial penalty or dealing with default in payment to make it clear that such a statement may include details of all their assets. Our consultation set out our aspiration to make greater use of asset seizure across the justice system. We consulted on the idea of creating a stand alone sentencing power to seize offenders’ assets as a punishment in its own right. Many respondents felt that in practice such a power could be difficult to impose and enforce. However, some respondents suggested that greater weight might be placed on offenders’ assets when fixing financial penalties.

Courts are already required to have regard to offenders’ financial circumstances when fixing fines, compensation orders and other types of financial order. In many cases, information about offenders’ earnings and outgoings will be sufficient for courts to set a proportionate and equitable penalty. However, the Government wish to ensure that, in cases where offenders may be cash-poor but have items of property that are more valuable, courts can, if appropriate, take account of this when fixing the value of a financial penalty.

Part 6 creates new powers for Her Majesty’s Courts and Tribunals Service to access data from Her Majesty’s Revenue and Customs and the Department for Work and Pensions to ensure that, when setting the level of a fine or compensation order, the courts have accurate information about an offender’s income or state benefits. This will ensure that fines are set at the appropriate level—not too low if they have a well paid job and not too high if they rely on state benefits.

With the addition to the Bill of these substantive provisions on community and other non-custodial sentencing, I am happy, as I said, to join the noble Lord, Lord Ramsbotham, in opposing the Question that Clause 23 should stand part of the Bill. I believe that these amendments will build on the strength of our current community sentencing framework to ensure that such sentences strike the right balance between punishment, rehabilitation and reparation when they are effectively enforced. I commend the amendments to the Committee. I beg to move.

16:03

[Lord Rosser]

Today, as the Minister has said, is in fact a Second Reading debate on the Government’s latest additions to the Crime and Courts Bill. The new schedule and clause, entitled “Dealing non-custodially with offenders”, cover a number of proposals and changes—namely, a punitive element to every community order, restorative justice, pre-sentence information sharing, information on offenders’ assets and financial circumstances, the removal of limits on compensation orders for adults and location tracking for the electronic monitoring of offenders, although the reliability, effectiveness and cost of using the equipment involved for such location tracking is as yet far from clear. On the other side of the coin, the Government’s proposals are either silent or relatively so on the provision for young adults, women and vulnerable offenders. No doubt at some stage the Minister will explain why this is the case.

I want to direct most of my comments to the introduction of a mandatory punitive element in every community order. The Government’s heavily trailed proposals for “tougher” community sentences have been delayed even longer than anticipated by the departure of Mr Clarke as Secretary of State at the Ministry of Justice and his replacement by Mr Grayling, a person adjudged to be more in tune with the heartbeat of Conservative Members of Parliament and Peers on law and order issues.

What, then, do the proposals add up to? Put simply, that appears to depend on the extent of the freedom, or lack of it, that courts are given to decide how to interpret them if they become law. The Government are seeking to make it mandatory for a court to impose at least one punitive element or a fine or both when sentencing an offender to a community order. For example, a punitive element could be unpaid work or electronic tagging and a curfew.

Having made it mandatory in one part of their proposals, in the next part, the Government then say that does not apply where there are “exceptional circumstances” relating to the offence or to the offender which would make it “unjust” in all the circumstances to impose a community order with a punitive element or fine. It is a bit like having an each-way bet. It seems that guidance on what is meant by “exceptional circumstances” will be given, among others, to the Probation Service, which draws up reports for the courts with recommendations on sentencing offenders who are being considered for a community order. It is not clear who will be drawing up this guidance, how prescriptive it will be or what will be the size of the Secretary of State’s personal footprint that will be stamped on the guidance. I hope that the Minister will be able to enlighten us on these points when he responds.

The Government say that they do not want to tie the hands of the courts. Clearly, at the very least, they want to give the appearance of telling the courts that they have often got it wrong up to now in their community order sentencing and how they must act in future. Currently some two-thirds of community sentences provide for what is considered to be a punitive element and often a rehabilitative element as well. The remaining third provides for measures designed to help rehabilitate an offender and/or for supervision by the Probation Service, but do not contain a punitive element because the courts have not considered that appropriate. Victims and communities, say the Government, want to see a punitive element in any community sentence, and that is why they are proposing to put a mandatory requirement, except in “exceptional circumstances” on the courts to impose a punitive element, or a fine, or both, in any community order.

Can the Minister confirm that this means that he and his ministerial colleagues in the department are telling the courts that in nearly a third of cases involving a community order they have been getting their sentencing wrong? Or is it the Minister’s view that things will continue much as they are now because “exceptional circumstances” may well continue to be found by the courts in almost a third of cases?

Most surveys show that the main thing most victims and communities want is some assurance that action will be taken to minimise the likelihood of the offender reoffending. On that score, the Government’s proposals contain very little. There are plans to extend restorative justice which we support, but this is dependent on the victim or victims and offender agreeing to such a step, which may or may not lead to a lesser penalty being imposed by the court. It would be helpful if the Minister could say what increase the Government are expecting in the number of cases dealt with in this way, what resources will be made available and at what cost, since disposal effectively of cases in this manner is likely to be resource-hungry.

The new Secretary of State has made it clear that his proposals for mandatory “tougher” community sentences, which can already be imposed by the courts, if they think fit, under existing powers, are not intended to be used as an alternative to short prison sentences of a few months. All the evidence shows that those are the least effective sentences in terms of reducing reoffending, which is what victims and communities really want to see achieved. So it would appear that the Government’s proposals will not reduce costs or the prison population, but rather, with the emphasis on extended mandatory requirements, would, if actually implemented, increase costs without necessarily impacting positively on reoffending.

One question is whether the Government’s real intention with the amendments is to impose tougher sentencing on the courts for community orders with the emphasis on a mandatory requirement on punishment and very little said on rehabilitation. Alternatively, is the intention to give the impression that this is the case for the benefit of the Conservative right wing and the right-wing media, while in reality continuing to leave it to the courts to decide the appropriate balance between punishment and rehabilitation in a community order, as they do now? No doubt, the Minister will clarify the position on this point, as that is surely one question to which the noble Lord must know the answer.

When considering community orders, a further issue is the role of the probation service in the management and supervision of offenders. What role do the Government see the current probation service playing in the future and in what format? In what areas of activity will the probation service continue to undertake the work itself and in what areas of activity will other organisations in the private and voluntary sectors be taking over the responsibility?

The new Secretary of State has come from the Department for Work and Pensions, which seems quite keen on the commissioner-provider split. Is that now the road that the Secretary of State intends to go down with increasing vigour as far as the management and supervision of offenders, and the future role of the probation service, are concerned?

We know that the Government lay some emphasis on what they describe as payment by results as an approach to engaging organisations in work with offenders. There is a danger that there is a lot of payment and not much in the way of results. Pilot exercises have been undertaken and perhaps the Minister could talk about the outcomes of these exercises and whether they have been completed as intended. If the Government’s view is that the courts have not been sentencing appropriately in one-third of community orders because no punitive element has been concluded, what benefits do the Government see arising from a punitive element now having to be imposed?

Most offenders have one or more issues that need addressing or taking into account in sentencing, ranging from mental illness or disorder of varying degrees of seriousness to significant housing, drug, substance or alcohol problems, learning disabilities and low educational achievement, being stretched financially or having primary care responsibilities. In a number of cases, these problems, allied to considerations of the circumstances and nature of the offence, may make a punitive element inappropriate. Based on their own research, what view do the Government have of the percentage of cases involving community orders that might be covered in future by whatever definition the Government intend of “exceptional circumstances”? Is it the Government’s view that a punitive element in the third of community order cases that currently lack such a provision will reduce reoffending in these cases or is this new provision being primarily designed to meet the Government’s view of what victims and communities want? As it is, we now already have a new requirement that where a community order is made by a court, a £60 victim surcharge will also be payable by the offender.

Debates in Committee and on Report will provide an opportunity to probe in more detail the thinking, reasoning and hard evidence behind the Government’s proposals and the impact that they are likely to have on reoffending, victims, the prison population and costs. The proposals indicate a considerable lack of confidence by the Government in the judgment of the courts to get the balance right between punishment and rehabilitation when imposing community orders. The mood music of the proposals on community orders, taken as a whole, is that of a one-club approach of being more punitive in future with new mandatory provisions, in contrast to the relative lack of emphasis, and certainly no mandatory requirements, in relation to rehabilitation.

If that is the Government’s instruction, through this Bill, to the courts, the outcome may well be less provision in community orders in future on rehabilitation or non-punitive elements as a means of reducing reoffending. Perhaps the Minister would confirm that such a development would be in line with the Government’s thinking on community orders in future. Many who appear before the courts need to be punished in clear and unequivocal terms for the offences they have committed. Equally, for others, that may not be the appropriate road to go down when there is evidence that the prospects of reducing reoffending would be maximised through addressing the causes of their offending with challenging sentence requirements. We will keep an open mind at this stage on the Government’s proposals, which have only recently been published, and we wait to see if the Minister can address some of the concerns expressed.

16:15

[Lord Ramsbotham]

I have given notice of my intention to oppose the Question that Clause 23 stand part of the Bill. However, as the Minister has explained, Clause 23 will now be removed. I shall also speak to Amendment 155EZB.

When I read the speech made by the Prime Minister on 22 October, I must admit that I was struck by one word that sprang out at me from everything that he said. That was “confusion”. There seemed to be confusion in his mind. When he said that he was not saying what people wanted to hear and not playing to the gallery, I felt that he was confused because he was actually playing to two galleries. To one gallery, which you might call the rehabilitation gallery, he said:

“Just being tough is not a successful strategy in itself. Recognising that young people who can’t read, teenagers addicted to drugs … need help, so that they can become part of the solution and not remain part of the problem … is not soft or liberal, it is common sense. We will never create a safer society unless we give people, especially young people, opportunities and chances away from crime. Prevention is the cheapest and most effective way to deal with crime. The Government is engaged in what can only be described as a rehabilitation revolution”.

I felt in a way that I could side with all that. But then, on the other hand, he made remarks to the other gallery, saying:

“At every single level of sentence this Government is getting tougher … we are toughening up community sentences too. If you are on a community sentence you will be supervised—you will be properly punished—you will be forced to complete that sentence. We will pay charities, companies and voluntary organisations who come and help us rehabilitate our prisoners, but the payments will depend on results. By the end of 2015 I want to see Payment by Results spread right across rehabilitation”.

I could not help concluding that when political theorising and posturing collide with the hard facts of reality, there are only two ways out. One involves meaningless wishful thinking and the other involves meaningful rethinking. Having had a most useful meeting yesterday with the Minister, and having thought through what other people have said, my appeal is that we shall have meaningful rethinking of a lot of this, and not go on with the wishful thinking. The Prime Minister says that everyone will be supervised—well, who by? At present, 62% of probation officers have a caseload of between 30 and 49. How can they supervise all those properly? How on earth are you going to have everything delivered by 2015, when there is not even a payment by results project working now?

We have heard a lot about the feelings of people in the community. I absolutely agree with the noble Lord, Lord Rosser, that it is more about whether people are going to reoffend than about what the probation service actually does. We have heard about victims and offenders, but we have not heard about a very important part of the whole community sentence delivery—the probation service. I admit to being seriously alarmed about the state to which the probation service has been reduced since 1997. When the Minister started, I understood him to say that he was talking about the Government’s consultations. In addition to the community sentence consultation, which we have been discussing, there was also a probation consultation that ran in parallel. Originally, when they were both launched, we were told that they were running in parallel and that we would have a chance to discuss them both. We do not have the Government’s response to the probation consultation in front of us. Therefore, we are blind. We can talk until the cows come home about what we would like to happen but unless we know how it can happen and whether it can happen, it is all pie in the sky. Frankly, that worries me.

I believe seriously that this confusion stems from an even more serious confusion right at the heart of the criminal justice system. The aim of the criminal justice system is to protect the public by preventing reoffending. The criminal justice system consists of four parts—the police, the courts, prison and probation. The police investigate, the courts sentence and the prison and probation services administer that sentence—the Prison Service in custody, the probation service in the community. The aim of all that is to help those committed by the courts to live useful and law-abiding lives. That is what it is all about when we reduce it down.

Noble Lords may agree with what I have said in this House many times before: namely, that within the criminal justice system the position of prisons is exactly the same as that of hospitals in the NHS. In other words, they are the acute part to which you go if you need treatment, and you go there only if you need the treatment that only they can provide. If that treatment is never going to be completed in either hospital or prison, it will have to be continued in the community in the form of aftercare. Therefore, there is a connection between what happens in prison and what happens in the community, which is the work that needs to be done between the two. However, as with the NHS, the default position in the criminal justice system is in the community, from which you go to prison if you need that treatment. Unfortunately, that position has been reversed and now, thanks to the ridiculous NOMS among other things, instead of being separate, probation is subordinate to prisons, which is absolutely the wrong place because where probation ought to be working is with the courts and the police in the community. That is where it has worked traditionally. Then it works with all the organisations within the community which can help deliver the work that it has to do.

If you look at this the wrong way round and see probation as being subordinate to prisons, you get into a muddle, which is not helped by the fact that there is now no director of the National Probation Service. As we have said many times, there is no senior probation official in NOMS. Therefore, an awful lot is being said and done about the probation service without proper senior probation service advice at the heart of what is happening. What worries me about this is that I now hear that yet more reconstruction of probation is going to be done in isolation from all that has happened so far and that it will involve more competition and more people coming from outside. The role of the probation service is offender management; it is the public sector responsibility to manage offenders who are sentenced by the courts. I hope to goodness that whatever happens does not include dilution of that.

I also worry about the probation service because it clearly does not enjoy the confidence of the Secretary of State. That is alarming, not least because all the documents published about the probation service say that all the probation trusts are performing to level 3 or better, which means good, and some of them are performing to level 4, with 100% delivery of all their programmes. If they are performing as well as that, what is the problem? As regards community sentences and the talk about being punitive, every sentence is punitive because it involves an element of coercion and/or deprivation of liberty of the offender. It is said publicly that 65% of current community sentences already contain a punitive element. The aim is to get to 95% with a punitive element. However, people have mentioned all the exclusions, all the people for whom there should not be a punitive element, such as all the mentally disordered, all the people with learning difficulties, all those who are immature and all the mothers who have problems looking after their children. There is a whole raft of people. If you are going to say that 95% of community sentences are going to have a punitive element, you will confuse everyone.

Let us also not forget the definition of “punitive”. If punishment is clearly what we understand it to be, “punitive” is the “awarding”, “inflicting” or “act” of punishment, or,

“severe handling, belabouring or mauling”.

I hope that that is not what is meant. I hope that Ministers will remember that the staff who have to deliver these so-called punishments have to be under no illusion that the punishment is awarded by the courts in a civilised society and it is not on for anyone then to administer further punishment. If people talk about adding a punitive element, they are giving people doubts as to who is going to deliver that punitive element. Sure as anything, it must not be either prison or probation staff. That would be utterly wrong and would undermine the whole system.

As regards payment by results and the 2015 promise, I am interested to see that a pause has now been imposed by the Secretary of State, including a pause on payment by results in Wales and the West Midlands probation services. The pause is for reconsideration. In addition to all the questions that have been asked by the noble Lord, Lord Rosser, and will no doubt be asked by other noble Lords during this debate, my plea to the Minister is that serious reconsideration be given to what is being proposed, because this posturing about punishment and the undermining of the position of the probation service, which has the responsibility to the community for delivering these sort of sentences, and the confusion being put in the minds of the staff who have to deliver this policy, must be avoided if the justice system is to work. I hope that during that reconsideration work will be done to examine what is actually possible, given the fact that there has already been a 19% cut in probation service resources since 2010, and more cuts are scheduled. It is no good saying that you will do things if you cannot, because you will do even more to undermine the confidence of the public.

I hope that the Minister will agree to this reconsideration and that we will not process the rest of the Bill until we have the government response to the probation consultation with us so that we can take all the factors into account when recommending what should go forward.

[Baroness Hamwee]

My Lords, a rehabilitation revolution will be welcome. Where I have criticisms, they are intended to be constructive this afternoon and in the further consideration of these clauses, because I want to see that revolution work. My first concern, as other noble Lords have indicated, is that the rhetoric around this should not become all-important and an end in itself. I wonder whether legislation would have been thought to be necessary if it were not for a perceived need to articulate that punishment is a principle of sentencing. It is only a principle. What is essential is that the punitive element does not eclipse or jeopardise the other elements. As my noble friend has said, what may be punishment to one person would not be punishment to another, so the assessment of the court, based on information about the individual offender, is central to the implementation of this, and indeed its presentation. I welcome the discretion of the court.

Designating the primary purpose of, say, education as being punitive worries me immensely. Someone who has difficulty with reading and writing could usefully have the right sort of education. Their problems may stem from dyslexia, for instance. If the response is badged as punitive, that raises a lot of questions about reinforcing negative attitudes to education, and that may lie at the heart of the offender’s problems.

16:30

Similarly, we have heard that supervision is required. To me, supervision is quite a positive term—or at least it is in most contexts—and I do not think that it should be presented as negative.

Curfews may be used as one response. However, is it right to confine an offender to his unhappy circumstances—the circumstances against which he is reacting and which led to his offence? The curfew can last up to 16 hours, which clearly would effectively preclude normal structured work in the absence of a magic carpet to get the person there and back. It would also preclude time for rehabilitation. I would not be surprised if someone faced with a very lengthy curfew stocked up on alcohol on his way back to his many hours of restraint, just to see him through it.

I have a related concern about full-time unpaid work and how this relates to jobseeker regulations. The Magistrates’ Association has briefed me, and no doubt other noble Lords, about its concerns on this. It has received a letter from the Minister for Employment, which indicates that the DWP would not expect to relax regulations for those doing unpaid work. The Magistrates’ Association says:

“Sentencers will want to be sure that if they sentence an unemployed offender to unpaid work, they will not unwittingly be responsible for the cessation of benefits and the removal of the offender’s only source of income”.

Therefore, there are issues around joining up between departments on which I hope the Minister will be able to give assurances in due course, as I did not give him proper notice of these points before today.

Is tagging punitive or is it, for some people, a badge of honour? Quite apart from reliability—and one needs only to think about that bossy voice on the sat-nav which tells you when you are on a motorway, “Turn around now”—there are civil liberties considerations. Having been convicted does not mean that you completely forfeit these. Also, technology is not a substitute for one-to-one work. With regard to value for money, what proportion of the offenders within this cohort are likely to be at risk of breaching the conditions? Low-risk offenders for whom the company dealing with the technology will be paid probably present a very interesting cash cow.

The punitive elements are not to apply where there are “exceptional circumstances”, to use the words in the amendment. What might these be? The Government need to be clear about this. I hope that we can be told during the passage of the Bill that there will be guidance—and indeed what the guidance might say—either from the Government or from the Sentencing Council. Exceptional circumstances relating to the offender could include alcohol or drug dependency and other traits—to put it in shorthand—related to the offender’s personality. However, that applies to huge numbers of offenders and so by definition is not exceptional.

I shall table an amendment at the recommitment of these clauses. At the moment, I have it in mind to explore whether the term “exceptional” should be replaced by “particular”. What might exceptional circumstances be relating to the offence? Might it be a single mother who commits some petty shoplifting because she has run out of money to feed her family? In promoting this programme, the Prime Minister says that committing crime is always a choice. However, I suspect that some offenders, such as that single mother, may not agree.

I very much welcome the legislative recognition of restorative justice. I do not believe that to be an easy option; facing up to what you have done and to the people that you have done it to must be very difficult indeed. However, we all know that legislating for something and implementing it are very different. This is resource intensive and those resources must include training not only those who apply the programmes but perhaps even the judiciary, although I hesitate to suggest it. Perhaps explaining what is available to the judiciary would be a more delicate way of putting it. It will all take time. None of this is to argue against it but rather to urge the investment of effort and energy as well as money.

Much of the good work in this area and in other rehabilitative work comes from the third sector and from that sector working in partnership with others. It is obviously important to build on this. I would say—constructively, I hope, but bluntly—that payment-by-results contracts must not be a blunt, wholesale introduction of privatisation or of compulsory competitive tendering. Those contracts must not drive those small but very effective organisations, some of which are quite maverick and certainly unconventional, to the wall. Such organisations tend not to have the infrastructure or resources to take on the risks inherent in the bidding process that is in prospect, or indeed to bid as that in itself costs a lot of money.

I hope that the Minister will be able to reassure the House about the work that I know he has in mind, and indeed is pursuing, to develop mechanisms to ensure that commissioning supports the work rather than threatening it. Could there be some sort of preferred bidder arrangement to allow an organisation to work up a scheme without going into competition? How are we to ensure that these smaller organisations may find a place in a programme undertaken by a larger organisation within a bigger scheme? The detail of implementation, perhaps under different management, is so important in all of this.

In thinking about how payment by results may operate in practice, it has also occurred to me to wonder how those practitioners who quietly, and often in a small way, do quite extraordinary rehabilitative work will feel about working not within the culture to which they are accustomed, and where they feel comfortable, but within the world of the big beasts of service provision. It is a question both of public service ethos and of that culture. I also wonder what a result is—this is not intended to be football jargon—and how one measures it. The question of pilots has been raised. One can pilot and pilot without coming to a decision. Perhaps if we find language that is about a slow roll-out with an opportunity for evaluation and assessment, that would fit better within what the Government are planning. It may indeed be payment by results but transparency is important too and that may not be available, given the application or non-application of freedom of information to the private sector.

The noble Lord, Lord Ramsbotham, expressed alarm about the prospects for the probation service. I share that alarm about what goes to the heart of its role and remit. “Service” is the right term; it is service to the community. On the probation service, I hope that the Minister can be clear about how and when decisions will be taken. Have they indeed been taken? Are they part of this legislation or parallel to it? They are clearly closely related. We know that it is proposed that certain services remain with the probation service. How will that impact on the capacity of the service to undertake other functions? It has been suggested that those working in the probation service should look at mutualising their offer, so the same issues arise as for the third sector.

We used to talk about the endless changes to the teaching profession and the fact that it was shaken up every year or so. It seems that the probation service has over the years suffered from a lot of shake-ups, so stability is to be aimed for. Sentencing policy must command public confidence, which is not the same as the approbation of certain parts of the media. The sentencing of individuals must command the confidence of those affected. The research undertaken recently by those two admirable organisations, Victim Support and Make Justice Work, tells us—I shall not take up more of the Committee’s time by quoting at any length—that victims’ attitudes are not significantly different from those of the general public; that the public have similar concerns and reparation holds a very strong appeal; and that punishment and the protection of the public should not be to the exclusion of rehabilitation and reform. Like everyone else, as has been said, what the public simply want, and what society wants is that the offender does not do it again. That is the objective that we must keep in mind.

[Lord Woolf]

My Lords, I hope that I can start by referring to the amendments to Part 2 before us in the most enthusiastic terms of which I am capable. I congratulate the Minister because I know that he played a significant role in ensuring that these amendments include the valuable provisions with regard to restorative justice. The provisions are substantially overdue; the evidence has been available for us to see; and in the debates in this House there has been a unanimity of view as to the positive role that it could play. All that I would caution, if I may, is the importance of ensuring that the proper groundwork is done in regard to its introduction and execution. It is first of all critical that victims see it as it is indeed intended to be—something that is meant to serve them as well as the community generally. Victims are at the centre of restorative justice and the evidence suggests that if conducted properly it provides them with real reassurance that those in authority recognise the importance of putting them at the centre of the policy to be adopted.

Turning to Part 1, I listened with great care to what was said by noble Lords, Lord Rosser and Lord Ramsbotham, and the noble Baroness, Lady Hamwee. Bearing in mind the admonition of the Minister that we are treating this as a Second Reading in our approach, I should say that I strongly support what they have said. I do not know whether it is right to refer to expressions of concern or expressions of alarm, but whichever term is used it is certainly endorsed by me.

16:45

I, of course, have well in mind the amendment tabled by the noble Lord, Lord Ramsbotham, which seeks to take out of the Bill the parts of the proposed amendments to Part 1 which deal with the question of punishment. Unless steps are taken by the Government to deal with the problems which this part of the amendment creates, I can assure the House that when the amendment proposed by the noble Lord, Lord Ramsbotham, is reintroduced it will have my strong support. The language used in this part of the proposed amendment will create huge difficulties for sentencers. I cannot conceive that the language would be in the terms that it is now if those who have responsibility for sentencing had been listened to.

Comments have been made suggesting that this will create problems for the judiciary. In this regard, I am sure that the noble Baroness, Lady Hamwee, will forgive me if I say that judges—and I include magistrates when I refer to judges—have no problem about training because they all receive it. They would like to receive more training but the resources available make that very difficult to achieve. I anticipate that for the purposes of community sentencing the judges will receive proper training. If they do—as they will—I cannot see any need for the proposal contained in the amendments to Part 1. Although I am sure it is certainly not intended, they are offensive to the judiciary, who strive to ensure that each person dealt with by them is sentenced to the appropriate sentence.

I have looked carefully at the list of community orders contained in Section 177 of the Criminal Justice Act 2003 and each order, in the case of certain offenders, is perfectly capable of being a form of punitive action. This perhaps emphasises that the amendment to include a mandatory requirement is not required. I urge the Government to rethink whether they want to pursue this. If they do, how do they think it will work in practice? Where a judge—whether a magistrate or a senior judge—is involved in deciding on the disposal of an offender, he or she has to consider which of the alternatives available is the appropriate one to apply. If the judge comes to the conclusion that any of the community orders listed in subsection (1)(a) to (l) is the appropriate way of dealing with an offence, then it would equally be the case—unless it is an unusual situation—that he would have decided that that is the appropriate way to achieve justice in the disposal of the offender. But having come to that conclusion and decided that there is no need to do more than what he already intends to do, what should he do about the provisions in Part 1? Can he say that there would have to be exceptional circumstances to impose another punishment just because of the language of Part 1, and if so, would it be unjust to do so?

As to the second half of that contention, I would suggest that it must be unjust to impose something which a judge does not think is the appropriate form of punishment. Given that the way to treat an offender is the most difficult of judgments, we will get into situations where the judge conducting the task of disposal will not be given the liberty, having come to a conclusion on the appropriate manner of disposal, not to impose another form of disposal. That does not seem to me to be good sense.

[Lord Ponsonby of Shulbrede]

My Lords, it is clear from the Government’s response to the community sentencing consultation held last summer that there is substantial consensus among the consultees, and the Minister was right to point that out in his opening comments. The Government have accepted most of the advice given and the current proposals seem to be largely evidence-based and practical. However, there is one glaring exception, which has been raised by every noble Lord who has spoken so far in the debate, and that is the introduction of a mandatory punitive element into every community sentence. The Government’s original impact assessment of the proposals, which was published in March with the consultation, acknowledged that they would have an adverse impact on reoffending rates by causing primarily rehabilitative requirements to be replaced by primarily punitive requirements:

“Given a limit on the overall resources available for probation services, delivering a clear punitive element to every community order may cause the primarily rehabilitative requirements to be substituted for primarily punitive ones. Evidence is unclear on the effectiveness of different community order requirements in reducing re-offending i.e. some requirements may be more effective at reducing re-offending than others. There is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate of those offenders subject to community orders”.

I have a clear question for the Minister, and in asking it I remind the noble Lord of the wise words of the great Jimmy Maxton, who said that you should not be in the circus unless you can ride two horses at the same time. My question is this: will it be open for sentencers to deem any element of a community order to be punitive? It is clear that a curfew, community payback or an exclusion order are, but can a court decide that, for example, an alcohol treatment programme taken alone as part of a community order has a sufficient punitive element to satisfy the requirements of this Bill? Here I should make it crystal clear that I am not talking about exceptional circumstances, but what the sentencing Bench deems to be punitive. It is important that sentencers retain their flexibility since every case is different. Can sentencers deem the rehabilitative requirements of community orders to be punitive as well, so as to satisfy the requirements of this legislation?

I want to give an example of how excessive restrictions on sentencers’ flexibility can lead to perverse consequences, which are clearly against the Government’s intention. My example is from the victim surcharge, a separate matter, but one which I think illustrates my point. On 1 October, the new extended victim surcharge provisions came into force, where offenders are charged money—cash—for the sentence they receive. Under the new arrangements, sentencers are obliged to charge a victim surcharge of £60 to those who receive a community order.

Last week, while sitting as a magistrate, I came across something that I am sure would not be the intention of the Government. I had a beggar in front of me who had a number of convictions for begging both this year and last, a Romanian lady in her mid-40s. The new element in her life was that she now had an address in north London. As a sentencing Bench, we wanted to give the beggar an exclusion order from central London—the City of Westminster. However, if we had gone ahead with that sentence we would have been obliged to charge the beggar £60, because the exclusion order is part of the community order. Clearly, this was not a practical way to proceed, so we dropped that idea on the advice of our clerk and sentenced in the usual way of one day deemed served, so the beggar effectively walked free. I am sure that that is not the intention. It would be much better if sentencing Benches had discretion in that matter. However, it illustrates the point that if sentencers do not have discretion, you can and do have perverse consequences.

My next point has, I believe, been made by the noble Baroness, Lady Hamwee. I was contacted by the Magistrates’ Association regarding the status of people who are working a number of hours in one week and the prospective conflict of their receiving jobseeker’s allowance. I got the same letter as the noble Baroness, Lady Hamwee, and will not repeat the point she has made, but am sure that that is a point that should be resolved between the Ministry of Justice and the Department for Work and Pensions.

The Government’s response document contains statements about restorative justice, victim personal statements, separate provisions for women offenders and a number of elements for people who breach their community orders, all of which, taken in isolation, are to be welcomed. However, one group of offenders was not concentrated on in the Government’s response, which I think is regrettable—younger adult offenders or 18 to 24 year-olds. The Minister will know that this is a particularly prolific and vulnerable group of offenders. There has been a number of initiatives over recent years and months, some of which have been very successful, as the Government acknowledge. However, there is no provision in this legislation to take any of those pilot studies forward. There have been initiatives in Manchester and Yorkshire, and it is disappointing that none of those has been taken forward. I would be interested to hear from the Minister how he proposes to address this group, which is often regarded as a forgotten group.

17:00

Finally, I want to talk about the costs of these proposals and the points made by my noble friend Lord Rosser, particularly the costs of the extension of tagging. The anticipated costs have not been made available to the Committee; although some of the briefings we have received have speculated on the costs, none of this has come from the Government. It is very important that none of these potential increased costs should be taken out of the price of one-to-one supervision by probation officers, which is the most valuable thing that happens. It is about balancing employment, family, stable relationships and stable finances, and trying to help offenders manage these things. The management of these issues is by far the most beneficial thing. Curfews and GPS are useful add-ons but they are not to be seen as a replacement for the useful work that the probation service does.

The Minister knows that offenders are not an obedient workforce. They are characterised by periods in care. They have mental health problems, addictions and poor literacy. This is an opportunity for the Minister to address these problems and build on the good work that is done by the probation service, rather than undermining it through any reduction in funding.

[Baroness Linklater of Butterstone]

My Lords, there have been some very important contributions to this debate. I have agreed with pretty well every word. I therefore ask the House to forgive me if there is some repetition of what has been said.

We must be clear about what we want from the courts in terms of community sentencing and what we expect from those who deliver sentences. Above all, we must be clear about the values that inform the process. In introducing himself and the Government’s proposals, Chris Grayling announced that he is going to be a “tough Justice Secretary” because he believes that greater toughness and more punishment is what the people of this country need and want. I wonder. A lot depends on interpretation and what is meant by and expected from this new emphasis on punishment as an additional element in all community sentences. I question whether what he is proposing will indeed be a positive way forward.

The greatest proportion of all those coming before the courts receive community sentences, which have already proved to be significantly more effective than prison in reducing reoffending by more than 8.4%. Of course, they could and indeed should be still more effective, focused and robust, particularly if better resourced, and I hope that the Government will do just that. Like others, I pay tribute to the probation service in particular for its role in providing an infrastructure and effective programmes with experience and skill all around the country.

The purposes of sentencing as set out in the Criminal Justice Act 2003 and revised in 2007 remain, I assume, the agreed framework. Very importantly, the five elements are interdependent and must be applied in equal measure. They are: reparation, rehabilitation, punishment, crime reduction and public protection. However, the Government want to alter this balance and prioritise punishment, assuming that the sanctions currently available are in some way too soft. This also begs the question of why some people break the law, whether those involved in low-level reoffending are thinking of potential sanctions they might face if they are caught, and whether punishment per se will have a significant effect anyway.

The Government say that they want more punishment in every order and that this would generally mean,

“restrictions of liberty that represent to the public a recognisable sanction”.

As has been said, these are curfews, exclusion or community payback. The Government also say that,

“what is punitive for one offender … will not necessarily be punitive for another”,

recognising that all disposals must be relevant to the individual offender. Clearly, community sentences should challenge in ways that will effect change, especially in reoffending, and the public need to be confident that this is happening. However, typically the needs of such offenders are significant, particularly in terms of mental health, lack of education and school exclusion, low IQ, domestic violence, unemployment, homelessness et cetera. Unless the sanctions of community sentences take these into account and support needs are met, they are bound to fail.

It is unhelpful and misleading to attempt to separate the punitive and non-punitive elements of an order. This is because they are interconnected, and the chances of breach and reoffending are high if this is ignored. It also risks—as we have heard it so eloquently put by my noble hero—constraining judges and magistrates, who must take into account the individual offender’s circumstances as well as the offence. I suggest that successfully preventing reoffending matters more than being punitive for its own sake and should remain the ultimate goal of sentencing.

The National Institute of Economic and Social Research has done some very interesting work for the MoJ on punitive sanctions and found that unpaid work alone—that is, a “punitive requirement”—had no impact at all. It found that a lot depends on the needs of the offender, and the best chances of punishment having some effect are when it is added to supervision and a programme. This indicates more clearly than ever that punishment has an effective place in the sentencing armoury only in combination with other interventions relevant to the individual. I urge the Government and my noble friend, when he is in his place, to look closely at their own good research on the place of punishment in what they hope to achieve in reducing reoffending.

The Government are quite rightly concerned about public confidence and the confidence of the courts in the effectiveness of community-based sentencing. This hinges on a combination of knowledge, understanding and experience and, where community sentencing is concerned, a great deal more is required. Community justice is an area where public confidence is not high because so little is generally known of the reality of sentences and community sanctions. This is hardly surprising because they do not take place in a public arena and you cannot see or hear what a curfew or an exclusion order or tagging entails. Even community payback is rarely publicly visible either, let alone the reality of specific programmes for drug or alcohol abuse, mental illness et cetera.

An extremely effective programme run by the Magistrates’ Association in conjunction with the probation service, Local Crime Community Sentence, aims precisely to close this gap in awareness and knowledge of how the whole process works by taking audiences through real cases and making them act as sentencers. The resulting growth in understanding and confidence in the process on the part of participants is palpable and measurable. We need much more of this kind of initiative and much more information.

Another piece of important work recently carried out by Victim Support and Make Justice Work—mentioned by the noble Baroness, Lady Hamwee—has demonstrated how much the public, especially the victims of crime, want to have more information at every stage of the criminal justice process. They want to be involved by having their views heard and then being kept in the loop with the outcomes of sentencing. Crucially, the overriding response from victims, as we have already heard, is the need to be reassured that what they have experienced never happens again to anyone. This is a far stronger feeling than any retributive response, which the Government should heed. Victims want to know, too, what community penalties consist of, and so they should. I believe that, if they did, they would be encouraged by much of what they found and thus be more confident. Their voice must be heard and the Government must have ears to hear. The Government should develop more programmes and information dissemination to make these realities more visible and available to victims in particular.

This need extends to sentencers, too. As chair of Rethinking Crime and Punishment, I saw the effect of visits that we arranged for judges and magistrates to programmes available to them in their area to see work being done by the probation service and local voluntary agencies. It was like an epiphany to many, because judges do not normally get out and about that much to make such visits. Sentencers must know more about the disposals available to them. Magistrates, too, no longer have basic travel expenses paid for such visits and have difficulty in many areas staying in touch with local provision. There is no substitute for first-hand visits and discussion. “I never knew it was like that”, was often the refrain after these visits. I hope that the Government, with their enthusiasm for community penalties, will look again and restore this very modest but potentially transformative practical support.

Finally, I shall say a quick word on restorative justice. The proposal that it should be readily available to the courts, victims and offenders is an enormously important move. It represents the embodiment of the same principles of effective justice that I have already discussed—namely awareness, knowledge, understanding and meaningful engagement with the participants, particularly victims. I have supported these principles and the work of the Restorative Justice Council for years. I welcome these proposals as having the best possible potential for enabling positive outcomes following the damage of crime.

My caveat is that it will take a great deal of time and large investment to provide adequate numbers of suitably trained and accredited facilitators, who are key to the process. Sentencers who would be initiating the process currently have no established tradition in the use of RJ. They would need training as well as convincing. The whole process will be extremely complex and expensive, and it will be vital to ensure that the quality of delivery is of the best and not rolled out in a piecemeal fashion. It would be a disaster if expectations were raised without adequate quality delivery. That would destroy confidence and set the programme back for a long time. The Government must clarify not only how much they are planning to invest in training, promoting and delivery but the estimated timescale for the rollout of RJ. I cannot imagine that it will become widely let alone generally available for some considerable time, even with the expert advice and support of the Restorative Justice Council and other agencies. I look forward to hearing the Minister’s reply.

Positive change does not happen through negative strategies. Punishment will fail unless it is married to positive strategies geared to the needs of each individual —victim and offender alike. The research confirms this. I urge that that should be our goal.

[Lord Lloyd of Berwick]

I support the amendment moved by the noble Lord, Lord Ramsbotham. I had not intended to speak so will do so briefly.

I particularly wanted to say how much I agreed with the speech made by the noble Lord, Lord Rosser. What we are engaged on here is taking another step down what has become, recently and most unfortunately, a well-trodden path: you create a new offence carrying a mandatory sentence; you then allow the court not to impose the sentence if there are exceptional circumstances that would make it unjust to do so. My first observation on that, of course, is that it is a complete misuse of the word mandatory. The word mandatory should be confined to cases that are really mandatory, like the mandatory sentence of life imprisonment. However, there is a worse objection. It seems to me that it creates confusion. Of course, it has every advantage from the Government’s point of view, because it enables them to say that they are being tough on crime. At the same time, however, they can say that they are not leaning on the judges—oh no, no—to impose a sentence that they would not otherwise impose since courts never impose a sentence that they do not regard as just. That point was made very eloquently by the noble and learned Lord, Lord Woolf.

The Minister must say in reply which of the two ways he intends to have it. What do the Government really mean? What do they really want? In legislation, especially in criminal matters, clarity is of the first importance. Absence of clarity, such as I think one will find in the working of Part 1 of the schedule, has bedevilled criminal legislation, especially in the area of sentencing, in recent years.

17:15

[Baroness Butler-Sloss]

My Lords, I had not intended to speak, but I strongly support the speeches of the noble Lord, Lord Ramsbotham, and the noble and learned Lord, Lord Woolf. I add my congratulations on restorative justice, although the points made by the noble Baroness, Lady Linklater, were such that I hope that the Government will listen carefully to them.

Punishment needs to fit the crime, there is no doubt about that, but I share alarm—alarm really is the word—about the use of the words “punitive element” and the requirement for punishment, because it is only in exceptional circumstances that one would not go down that path. There will be many circumstances which are not exceptional where it would be unjust or inappropriate to make an order that was seen as a requirement of punishment. I urgently ask the Minister to rethink that part of the proposals.

[Baroness Howe of Idlicote]

My Lords, at last I rise. I will try to be relatively brief.

Like other noble Lords who have spoken, I remain puzzled and more than a little exasperated as to why the Government feel that they need to write the word punishment into everything to do with sentencing. Surely, we all know that a court sentence is indeed a considered punishment for the crime. I share to some extent the view of my noble friend Lord Ramsbotham that what has been appearing recently has been playing to the two Galleries.

The other concern that I share with my noble friend is that the whole position of the probation service has not been made clear at this time, so that the two issues could be considered together. Like other Members who have spoken, I have huge regard for the probation service and the work that it has done over many years, going back to my time as chairman of a juvenile court many years ago. Every report on what it is doing, the levels that it has achieved and the prizes that it has been getting indicates what a good job it is doing. The idea that that vital role is to be outsourced to people who are less well trained worries me a lot.

On restorative justice, I must admit that I am a little concerned about the cost which the noble Baroness, Lady Linklater, told us will be necessary before it can be introduced. I very much welcome the idea of it being available, especially at that important moment between conviction and sentencing. I hope that there will be improvements there.

As others have said, we know that community sentences are increasingly being used for lesser crimes. Of greater importance is the fact that they are 8.3% more successful than short prison sentences in reducing reoffending. One has only to think of the number of contacts that you make once in prison that will encourage you to get further involved in crime at a later stage to realise the sheer common sense of that.

Equally welcome would be rather more definition of the exceptional circumstances that can be brought into play. I hope that we are going to get more of a response from the Government about that because it will always be relevant when sentencing vulnerable disabled offenders, younger adults and, even more importantly in many ways, not least with regard to cost, women. It is logical that every effort should be made to keep that group out of prison, not least as their offences are usually minor and they themselves have often been the victims of sexual or other kinds of violent crime. We must also remember—hopefully, all courts do—that any imprisonment may well mean that the children have to be taken into care. Think of the cost, both financial and in terms of the upbringing and disruption of that child’s life. Again, if the accommodation is repossessed by the landlord, who knows? The whole family could be broken up. That, again, is a real concern.

I shall touch on another important issue that has been mentioned: the punitive elements could mean that the rehabilitative elements are unable to be proceeded with. We need proper reassurance that there will not be any nonsense about an imposed curfew or unpaid work, meaning that an offender cannot get the mental health treatment that they need or indeed go to the drug rehabilitation centre. That is such an obvious point that I hope it can be dealt with quickly.

On the issue of tagging, I know that a great deal is going on regarding improvements in these techniques. I am particularly concerned about this because of the use that this can be put to when dealing with not just violent offenders but ones who might have been involved in stalking, whose victims have already suffered huge amounts of sexual and other forms of violence. I would like to hear much more about that. I shall leave it at that—speakers at the end should be as brief as possible.

[Lord Reid of Cardowan]

My Lords, in my contribution I cannot lay claim to the same expertise that other noble Lords have brought from acting on the Bench as judges and magistrates, but I am familiar with some of these aspects. It may surprise the Minister to know that I am not riding to his rescue this evening; in fact, I find a lot of the contributions that have been made up to this point extremely persuasive.

For my part, I make it plain that I support the appropriate use of community sentencing, and in that sense I support the move by the Government. I may be remembered, along with my colleague Mr Blunkett, for introducing indeterminate sentences, which was for the element of protection, not punishment. In their wisdom, the present Government have taken a different view, which they are entitled to.

The one time when I got into real trouble was when I reminded the judiciary that the introduction of indeterminate sentences for those from whom the public needed protection, in our view, was supposed to be balanced by the ending of custodial sentences for those who should not have been in prison—in other words, for exhorting the appropriate use of community sentencing. I did so at the invitation of the Lord Chief Justice, but I was attacked by every judge in Britain except the Lord Chief Justice for reminding them of the original thinking behind the balance of indeterminate and community sentences. I am for community sentences. I am also very supportive of restorative justice, if for no other reason than that it appears to work from the point of view of the victim and for the rehabilitation of offenders.

On community sentencing, I am puzzled about why it is felt necessary to introduce the requirement that the purpose of punishment be explicitly recorded—I am careful not to use the word “mandated”—as one of a range of requirements upon the judiciary. I am therefore left to work on the basis of formal and informal press briefings. I recognise from my experience that the press do not always reflect accurately the reality of a Minister’s thinking, so I do not want to assume they are 100% accurate, but we are led to believe that it is necessary because this is what the public demand. I am not sure that that is the main concern of the public about community sentences. I think the main concern of the public is that they do not quite know what they involve or that people are being required to do things that they would not normally do.

We put in a lot of effort to highlight the nature of community sentences. Some of the manners in which we did that were not popular or acceptable. We had among a range of practical suggestions one which included the people involved wearing particular coloured vests. At the level of operations, some people may have objected to that, but noble Lords will understand that the reason behind it was that we recognised the appropriateness of community sentencing, but we also recognised that there was unawareness among the public of what good was coming from it and what those who were thus sentenced were actually doing to recompense the community and victims for the effects of their crime.

If the Government wish to reassure the public about the nature of community sentencing, this clause is a pretty blunt and crude way of doing it. The problem is that this will backfire. I have no problem with Governments who take a strong line on law and order. They are always accused of playing to the Gallery, but when the Bill uses this particular expression and requires this particular reaction in community sentencing—which would be taken into account anyway by the judiciary because of the criteria that inform our sentencing policy, as the noble Baroness pointed out earlier, which derive from 2005, I think from memory—it is seen as a gratuitous attempt to play to the Gallery and, however sincere the Government are, they are weakened.

I support community sentencing where it is appropriate. There are many people in prison who should never be there and who will not be mended in their ways, rehabilitated or make recompense to society. In supporting restorative justice, I hope that the Government will look again at this clause and rely on the wisdom of the judiciary. In community sentencing, that has not been the problem; the real problem has been that we need to do more to illustrate to local communities the effect of what is being done for their good as recompense and as part of rehabilitation.

17:30

[Baroness Warnock]

My Lords, I hope that the Government will pay attention to everything that has been said today. There seems to be a total confusion about the meaning of the word punishment and the adjective punitive. The meaning of these two words has separated over the years. Punitive suggests something quite alien from the notion of punishment, which is what is handed down when someone has been convicted. We know that vengeance does not work and that punitive sentences are not necessary. The whole point of punishment is to prevent further offences. We know now that community sentencing does, relatively speaking, work in the way that short prison sentences do not.

I beg the Government to concentrate on what is intended by punishment and to go on the evidence that community sentencing, with good support from the probation services, can work and that this is the intention. The adjective punitive seems to me to be completely out of place in this discussion altogether. I believe that the Government must listen to what has been said today.

[Lord Elystan-Morgan]

My Lords, I agree wholeheartedly with the remarks made by the noble Baroness, Lady Warnock. In relation to the past 30 years or so, Governments of every hue must stand in the dock and answer the accusation that they went out of their way to curtail the discretion that otherwise would have been vested in a judge or magistrate. Practically all Governments have done that and some of them more shamelessly than others. I am sure that anyone who has served in the courts in a judicial capacity, however senior or however humble, must be very aware of that.

The proposal that the Government are now putting forward in relation to the punitive approach is one of the most far reaching in that context. If it should be the case, as I assume it to be the Government’s case, that one-third of community orders which are made without a punitive element according to their definition must in all cases be dealt with in a different way, save for a very minuscule minority that is exceptional, then it is a very far-reaching and drastic proposal.

I fully accept that the Government are talking not so much about punishment in the sense of the disposal of a case of a person who has committed a crime but about something else, which connotes the idea that the experience of the defendant should be painful. My Latin is not all that good but does the word punishment not come from punitas? Is punitas not one and the same thing as pain? It is poen in Welsh and pain in English. Is that not really what the Government are after?

However, I think that the argument put forward by the Government, which has been described as offensive by the noble and learned Lord, Lord Woolf, and alarming by the noble and learned Baroness, Lady Butler-Sloss, is highly offensive. The 2003 Act had a vast range of community disposals. In many ways, they were imaginative, flexible and double-banked. The sentencer had a huge armoury at his or her disposal.

As I understand it, the Government are now saying that that failed to achieve its purpose. The people who were charged with imposing sentences missed the whole point. At some time after 2003, tens of thousands of sentences every year which should have involved a punitive element did not achieve their purpose because that element was missing. That statement is either correct or incorrect. If it is correct, it must mean that many people sat in judgment as magistrates, circuit judges and recorders who should never have been there. They were missing the whole point. However, if that statement is incorrect, it is one of the most unjust indictments of the administration of justice that there could ever have been. It is one or the other.

I ask the Government: where is the evidence that in tens of thousands of cases, year by year, at some point in time after 2003, that has been happening? I feel it is a policy and a gesture that is cosmetic rather than real and intended to give the impression of toughness. The greatest toughness to my mind that can be achieved in relation to the administration of justice is doing that which is right, that which you know to be just and that which you consider to be proper by society, irrespective of whatever prejudices tabloid editors might have against you. That is the toughness that the Government should seek to achieve.

[Lord Marks of Henley-on-Thames]

My Lords, the test for these amendments is whether they work in making community orders more effective and in cutting reoffending as a result. It is quite plain from the debate today that it is common ground in this House that seeking reform and rehabilitation of offenders, while recognising the importance of offering redress to victims, provides a balanced approach, which offers a far greater prospect of cutting reoffending than a programme of increasing prison terms and prisoner numbers.

However, if there is to be a compulsory requirement imposed for the purpose of punishment in community orders—it is noteworthy that the phrase punitive element is not used—it is very important to recognise what is meant by punishment in this context. In an enlightened society, the punishment involved in a prison sentence is the loss of liberty for the offender, not the imposition of a harsh and inhumane regime for prisoners serving their sentences. Therefore, the punishment element in a community order should be reflected in a lesser but none the less significant loss of liberty—the liberty to do as one pleases within the law—by the imposition of some compulsory sanction that restricts that liberty.

It should not follow that the activity that offenders are obliged to undertake by community orders must be unpleasant, degrading or harsh. It is not likely to be helpful to force offenders to do some kind of hard labour for the sake of it, much as some elements of the press would wish us to do so. It is likely to be helpful, however, to oblige offenders to acquire work and life skills that will help them to find work and take their place in non-criminal society. Compulsory training, useful work—particularly work that benefits the community—treatment for addiction and anger management, and, importantly, a significant commitment to compensation, may all have their place in a regime of punishment, as may curfews monitored by electronic tagging that oblige offenders to remain at home for a reasonable number of hours in the day. I reiterate the point made by my noble friend Lady Hamwee that 16 hours hardly seems a reasonable number of hours in a day.

From what I have said, it follows that I welcome the passage in my noble friend’s opening speech that this is how the Government see the punishment provision. But I can foresee the way in which the provision is presently worded leading some to question what is meant by punishment. It is important that it is absolutely clear, as my noble friend suggested, and as the noble Lord, Lord Ponsonby, wanted clarified, that the discretion as to what is the punitive element in a sentence is a discretion to be exercised by the sentencer and that he or she can comply with the requirement in the schedule in a way that he or she reasonably sees fit.

I would add a couple of words about one or two provisions of this part of the schedule, to which the House may wish to give attention next time. The reference to “exceptional circumstances”, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, as being the circumstances required to invoke the exemption from the requirement for a punishment element or a fine in a community order is far too strong. Exceptional is a very powerful word in statute and runs the risk of being more restrictively interpreted by the courts than my noble friend’s speech would indicate that the Government intend.

I also add a minor point that the proposed provision that breach by a contractor of the code of practice for electronic monitoring will not give rise to a civil cause of action may offer contractors, who are likely to be private contractors, an unwarranted level of immunity, and may weaken public confidence in how they perform their duties in respect of an intrusive form of punishment.

I add a word or two about restorative justice. The provisions of Paragraph 5 of the schedule have been welcomed across this House. By bringing offenders into contact with their victims, restorative justice helps them to understand the impact of their offences and assists victims to feel that society cares, understands the ordeals that they have been through and responds to them. For far too long, victims of crime have been treated as witnesses only, and even the introduction of victim support over recent years has failed adequately to address this. I know from my own experience and that of others that an arrest and a flurry of statements following an offence are followed up with a couple of letters offering counselling by way of victim support, when the victims may not need or want such counselling. Then far too often there is a silence, without the victims even being told what has happened because the offender has pleaded guilty so no evidence is needed from them at a hearing. That leaves a gaping hole in the system of providing victims with proper redress, and it needs covering at all stages of the process.

Deferring sentence to allow for restorative justice activities may prove a turning point for offenders and victims, and the evidence to which the noble and learned Lord, Lord Woolf, referred so far supports this. But for all these proposals to fulfil their potential, they must be properly resourced in terms of people, preparation and funding. To improve the effectiveness of community orders in the ways proposed, we will need more people, more money and adequate training. Much will turn—and the noble Lord, Lord Ramsbotham, made an extremely valuable and important point—on the outcome of the Government’s consultation on the probation service. While there may be good reasons for the increasing use of private and voluntary sector providers, as suggested in the consultation paper, it is very important that we do not dissipate or even risk dissipating the expertise that exists within the public sector probation service—and I share the worries of many noble Lords in the Committee. For example, there is a proposal in the consultation paper to allow existing probation services to form separate probation trusts to compete with private and voluntary sector providers for work from the commissioning probation trusts. That seems structurally awkward and doomed to fail. We must find a way to retain what is best in the probation service and not lose the talent that we have.

Resource will also be needed to provide for the restorative justice proposals. Sentencers will need training, and facilitators will need to be available to provide a service during the short periods when sentence is deferred. There will need to be national, not patchy, cover. These are serious challenges; if met, I believe that they offer serious prospects of improvement and, ultimately, savings of resources and great social benefits. But the implementation of these proposals so that they achieve their potential will be a significant challenge.

17:45

[Lord Beecham]

My Lords, in a previous debate, I described the then Lord Chancellor as a practitioner of the John Lewis style of politics—never knowingly understated. It seems that this is now embedded as the Government’s house style on justice issues. Ten days ago the weekend news resonated with talk of the Prime Minister shifting from “hug a hoodie” mode to “mug a hoodie”. We were expecting Dostoyevsky—“Crime and Punishment”, admittedly, rather than “The Brothers Karamazov”, which is presumably confined to the roles of the Prime Minister and the Deputy Prime Minister. But instead we ended up with something rather like a Bow Group pamphlet because, as it turned out, the Prime Minister’s speech and the ensuing long overdue government response to the consultation on community sentences, together with the amendments that they have now brought forward, reflect generally a more nuanced approach to the issues than we were led to believe was coming—as well it might, given the £10 billion a year cost of reoffending and the overcrowding in our prisons. It is a pity that while we have the government amendments before us, we do not as yet have accompanying Explanatory Notes, and I trust they will be available well in advance of consideration in Committee.

We welcome the decision to drop some of the more eye-catching proposals which aroused significant opposition in the consultation, such as driving bans, new powers to confiscate assets and fixed penalties for certain breaches of community orders. Equally, we support the proposals on restorative justice, building on some of the pioneering work already being done in different parts of the country. We also approve of raising the limit on compensation orders, which can be made in the magistrates’ courts. But there are questions, which some of your Lordships have raised already, to be answered about how proposals on restorative justice will work. What support will be offered to victims, who, as the noble and learned Lord, Lord Woolf, pointed out, should be at the centre of the restorative justice process? Equally, it will not be enough to say, as the Minister was quoted as saying, that offenders will be just saying sorry—although I suspect that the report did not do full justice to what he was talking about to the Guardian reporter. I do not think that that is by any means sufficient, and I do not believe that the Minister believes it, but perhaps he would like to go on the record and correct the impression given in his interview in the Guardian. In recognising that using restorative justice in appropriate cases could and, indeed, should, be cost-effective, have the Government estimated the cost of the process in terms both of cash and personnel, including the issue of training, to which the noble Lord, Lord Marks, referred?

The Government have laid great stress on the need for community sentences to contain a punitive element, although it is estimated that between 60% and 80% of such sentences already do so. The Government’s proposal that every community order must include one punitive element, a fine or both, has been the subject of concern around the House today. My noble friend Lord Rosser has already referred to concerns about offenders with mental health problems or learning difficulties. It would be helpful if the Minister could indicate that such matters could fall within the “exceptional circumstances” disapplying these provisions referred to in the amendment which would insert in the Criminal Justice Act 2003 new subsections (2A) and (2B). The noble Lord, Lord Marks, raised a series of questions about that. It would be unfortunate if his deduction was correct that exceptional circumstances might mean precisely that and there would be very few cases in which the courts would be able to depart from the provisions of new subsection (2A). We look forward to hearing from the Minister about his perception of what is intended by that phrase.

One such punitive measure could be electronic monitoring, which could certainly be useful in a number of cases. But given the recent critical report into the cost of the present scheme, what assurances can the Minister give that the costs would be much closer to those apparently charged in the US for the technology that is used there? Policy Exchange, not exactly the think tank of choice for bleeding heart liberals, has pointed out that around £883 million could have been saved by adopting the US practice of the scheme being applied by the judicial system rather than relying, as we have in this country, on three very expensive contracts with private sector contractors. What would be the process for any new contracts, using the new technology as it is developed?

The Government also propose to issue a code of practice in relation to electronic monitoring. Will this be subject to parliamentary approval, and will the data collected be available to government and other agencies in dealing with the consequences of offences? In any event, as the noble Lord, Lord Reid, and others have indicated, it will be important not to fetter the court’s discretion as to sentencing, and to give full weight to the rehabilitative element to address the issues which often will underlie the criminal behaviour that brings people before the court in the first place. These can, of course, range widely from alcohol or substance abuse to health, particularly mental health problems, to which reference has already been made, and low literacy and numeracy skills or lack of parental support. In dealing with all these matters there is clearly an important role for probation. Many of your Lordships, including the noble Lord, Lord Ramsbotham, have expressed great concern about the uncertainty around the future of the probation service. That is a matter which, although it is not formally part of the Bill, must be in all our minds as we debate its progress through this House.

Equally, we ought to know something about the proposed payment-by-results scheme. There have been pilots but apparently they have been abandoned, held up or deferred. Surely, if we are going to look at this concept, we need a proper evaluation of the pilots that have already taken place. It will not be good enough to proceed with a policy without an evidential basis.

The role of the skilled probation officer is key not merely in the sense of supervising the offender in terms of compliance with the provisions of the order but more generally in helping to identify areas in which the offender can be helped to address his or her problems, if necessary in co-operation with other agencies and services. We know that a home and a job are the key elements in reducing the propensity for prisoners to reoffend. The same must surely be true for many offenders given community sentences. Proposals to reduce access to housing benefits are not likely to assist, particularly in the case of the 18 to 24 year-olds to whom the noble Lord, Lord Ponsonby, referred.

By definition we are dealing with people who are, as it were, at the end of the process. Last week a question was asked in your Lordships’ House about London’s black cabs, which apparently suffer from severe steering problems—rather like the Government, you might think. However, the faults seem to be systemic and incapable of rectification. Much the same can be said in relation to the problems of those who end up in custody. The likelihood of their becoming offenders is closely related to factors apparent from an early age. Compared with the general population, prisoners are 13 times more likely to have been in care, 10 times more likely to have been a regular truant, six times more likely to have been a younger father and 13 times more likely to have been unemployed. Half of all adult male prisoners have been excluded from school and have no qualifications and 75% of female prisoners are in that category. Half of all prisoners have the reading skills of an 11 year-old or less, two-thirds have the numeracy skills of an 11 year-old or less and four-fifths have writing skills at or below that level. A very high proportion has drug and alcohol problems and the great majority have one or more mental health disorders, especially among young offenders. Around 20% of men and 30% of women prisoners have previously attempted suicide.

We are therefore dealing with a highly damaged group of people. To help prevent them inflict damage on the rest of us or, indeed, on themselves, we need all relevant agencies, not merely those involved in the criminal justice system, to engage with the problems of poverty, mental illness, substance abuse and addiction, lack of skills and work or a decent home—the milestones on the road to a prison cell trodden by such a high proportion of the prison population. That means the relevant arms of government and local government, including the health service, the Department for Work and Pensions, education and adult services joining together, as advocated by my right honourable friend Sadiq Khan, both at the early preventive stage and wherever necessary as part of the sentencing and custodial processes where crimes have been committed but also in the rehabilitative process and in the programme of community sentences which the Bill addresses.

In his foreword to the response to the consultation the Lord Chancellor describes the most serious weakness of our prisons as their doing,

“too little properly to challenge the individuals who end up inside them”.

That may be so but their capacity to challenge must surely be limited by the very numbers incarcerated and the overcrowding and consequent pressure on staff and facilities. He goes on to say that he is,

“determined to deliver a rehabilitation revolution: ensuring that more of the right people are inside prison”.

It is not entirely clear whether that means there should be greater numbers overall or fewer of what might be thought of as the wrong people inside. Perhaps the Minister can enlighten us on that.

However, the other principal objective must surely be that fewer who are in prison return to prison. Does the Minister agree that rehabilitation is not just relevant to those who receive custodial sentences? I assume that he does. Ought not that to be a priority for those receiving community sentences? Should not the Government be looking more closely at short prison sentences in terms of their effectiveness or otherwise and the need for follow-up after release?

There are two more issues on which I wish to touch briefly. The first relates to female offenders. The consultation response makes some reference to the relevance of community sentences to women but does not address the question of whether we simply have too many women in prison. Will the Government look again at this issue? Some years ago the number of women incarcerated had gone up threefold as against a twofold increase in the number of male prisoners and 50% of female prisoners had previously been admitted to mental hospitals. That is a staggeringly high proportion.

Will the Government also look at the position of BME offenders who are more often refused bail and who, if convicted, receive longer custodial sentences than others for comparable offences and with comparable records?

The noble Baroness, Lady Linklater, referred to the public’s attitude to sentencing. I think she was a little inclined to assume that it is rather more vengeful than is often the case. An opinion poll conducted some years ago showed that two-thirds of respondents expressed an interest in deciding what work should be carried out under the remit of community sentences. There was a recognition that prison is not a sufficient answer to the problem. Many people expressed a willingness to participate with youth offending teams in deciding what should happen to young offenders. I think we can underestimate the electorate’s intelligence. However, the noble Baroness is right to point out that we need to make the facts clear. Faced with the facts as opposed to the tabloid headlines, people would be more sympathetic to that approach and more sympathetic generally.

I commend the Government for their approach in the amendments they have brought forward and in their response to the Bill. However, a number of significant questions need to be addressed. I do not expect the noble Lord to deal with them all today. We will have an opportunity to go further into these matters in Committee. This part of the Bill is clearly on the right lines in most respects. We have to make sure that where it is not, it gets on the right lines. We also need to make sure that resources will be available to back the aspirations so that the Government’s intentions, many of which are shared by Members all around the House, can be carried out.

16:15

[Lord McNally]

My Lords, I am grateful to the noble Lord, Lord Beecham, for that response. As is often the case with his contributions, it contains a great deal with which I agree. I am also grateful to him for putting on the record statistics about the nature of people who come into our criminal justice system.

I am pleased that the noble Lord emphasised the prize of rehabilitation. I have never hidden the fact that I am not pleased with a 50% reoffending rate in mainstream prisons and a 75% reoffending rate among youth offenders. Fortunately, a very small core of youth offenders are now in custody. Even the most hard-nosed of criminal justice practitioners must see the common sense of cutting into reoffending rates which has the threefold benefit of saving the taxpayer the £40,000 or so a year it costs to keep the reoffender in prison, saving victims the trauma of future crimes and giving society a law-abiding member. So the prize for getting rehabilitation onto the agenda is extremely important. I am very grateful for some of the comments —here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on.

I wish to comment on two of the points made by the noble Lord, Lord Beecham. I would like us to achieve with women offenders some of the success that we have had with young offenders. As the noble Lord rightly said, you do not have to look in too many women’s prisons to see those who have no place there. I am glad to say that my colleague in the other place, Helen Grant, has taken responsibility for our women’s strategy and will be publishing shortly an update of that strategy, which I freely admit will build on the pioneering work of the Corston report in relation to women prisoners. The noble Lord is also right about the 18 to 25 age group where criminality becomes embedded. We should be looking at how we try to identify some of the specific issues there.

As always with debates in your Lordships’ House, I am left with a pile of notes that either I have made myself or the Box has supplied, which would keep me here until well after the dinner hour. I would therefore ask that I and noble Lords are spared a response to every question, and I hope that we can raise them again in Committee.

Of course I do not see restorative justice being simply about saying sorry, although, interestingly, it is sometimes the most difficult thing to say. However, restorative justice also forces the offender to face the consequences of their actions and the impact that they have had upon others. In this way, it can help rehabilitate offenders and enable them to stop offending. It can help motivate them to change and become responsible, law-abiding and productive members of society.

In the examples of restorative justice that I have seen, its importance for victims should not be underestimated. The victims said on many occasions, “That enabled me to have closure” on what had been a very traumatic experience. I was therefore grateful for the comments made about our proposals on restorative justice, although I should say to all my colleagues who said that it is a big commitment that I do not underestimate the fact that it will have to be prepared with the proper training and rollout. I pay tribute to the noble and learned Lord, Lord Woolf, because it was his constant harrying on restorative justice that made it a priority for me. While I take on board the fact that it is a tough ask, perhaps I may quote Mao Tse-Tung, who said,

“The journey of a thousand miles begins with a single step”.

I hope that this is the single step that takes us towards restorative justice.

I was slightly disappointed that the noble Lord, Lord Reid, did not ride to my rescue because, again, I agreed with much of what he said. I agree that there are people in our prisons who should not be there. One of the things that I hope we are developing in this policy is the twin track, which will make sure that the people who should be in prison are put there because of the nature of their offences or for public protection, but those who should not be in prison are managed safely out of the system.

I was glad of the references to one of my other standby quotations—Jimmy Maxton’s comment about riding two horses at once. That is precisely and unashamedly what we are trying to do. We are trying to make sure that the public have a confidence in community sentencing that will allow us to implant rehabilitation into the community sentencing process, which we hope will provide the impact on reoffending that I have said is so desirable. I agree that there is a certain element of riding two horses at once. We need public confidence in community sentencing if we are going to give it the traffic that we want it to bear.

[Lord Beecham]

Does the Minister agree that it is essential that the horses run in the same direction?

[Lord McNally]

Absolutely. We might get on to troikas in a few minutes, but we will wait for that.

I also fully understand the separation of powers in our system. The judiciary and parliamentarians should show due respect for each other, but we should also respect that in the workings of the criminal justice system parliamentarians have a responsibility as well as the judiciary, and they are quite entitled in that responsibility to comment on how the system is working. I have to say to the noble Lord, Lord Elystan-Morgan, that if proposing amendments to the criminal justice system somehow disowns all the decisions that judges have made under previous legislation, it must have been really difficult under the previous Government who, I think, passed a piece of criminal justice legislation on average every year for 10 years. We should not get too thin-skinned about it. I have absolute respect for our judiciary and it is a bit rum to say that we are bullying or being high-handed. One of the key elements of this Bill spelt out clearly our trust in the sentencer to make the crucial judgments about balance in terms of punishment.

Of course we will consult on guidance. When sentencing any offender, courts are under a statutory duty to follow any relevant guidelines issued by the Sentencing Council.

[Lord Elystan-Morgan]

Does the Minister accept the logic of the situation that, if he is right about the one-third of community sentences that according to the government definition do not carry a punitive element, that one-third—amounting to many tens of thousands of sentences each year—would be disallowed and that that is the effect of the situation over the past nine years since the 2003 Act came into force?

[Lord McNally]

I am sorry but I completely failed to follow the logic of this. Parliament is entitled to take another view nine years after a piece of legislation is enacted. That does not mean that decisions taken under the 2003 Act between its enactment and this Bill becoming law become completely invalid, it just means that Parliament has taken another view on this and has given some further guidance as to how the council should carry out its responsibilities. The Government are saying that they believe that the third or so of community sentences that did not have any punitive element would have been better and more effective if a punitive element had been included. We have had a lot of debate about this, but imagining that community sentencing that does not have punitive elements will have public confidence is going too far. I can tell the noble Lord, Lord Reid, that I had a very good example of one of his pieces of handiwork. I went to see a group of young men clearing a patch of derelict land and they were all wearing bright orange jackets. I asked the supervisor, “Do you have any trouble?”, and he replied, “Only that they steal the jackets because they’re quite a symbol to wear at the dances on Saturday nights”. That is the reality at the sharp end.

There is a fear of the word “punishment”, and the noble Lord, Lord Beecham, mentioned some statistics. I have said this at this Dispatch Box before: at one of my first ministerial visits to a young offender institution, there was a group of 16 and 17 year-olds standing around and I said to the person in charge, “What are the factors involved in these guys being here?”. He looked across at me and said, “Most of them have had but a passing contact with our education system throughout their lives, and most of them can’t read or write”. If we have young people, in particular, in our care and custody for a period of time, it does not seem unreasonable to say, “While you’re there, you’re going to learn to read and write”, or, if they are on a community sentence, “While you’re on that community sentence, we’re going to teach you to read and write”. Somebody who may never have got up before noon in his life might classify learning to read and write as a punishment, but later in his life he may classify it as one of the turning points in his life.

I understand some of the concerns but let us not get too worried about some of the presentational aspects; let us dig down into what the Bill is going to do. I think that it will put community sentencing on to the map in a way that will attract public confidence and enable us to take proper action on the rehabilitation of offenders.

I reassure noble Lords that we are looking very carefully at electronic monitoring and we will keep the House informed as we examine the technologies. Of course, we are aware that there will be civil liberties concerns in this area which we will wish to address and on which we will wish to reassure Parliament.

With the leave of the Committee, I shall look through my notes and, where there have been specific questions that I can reply to, I shall do so in writing. However, I know that this excellent debate has fulfilled the first of our objectives. I take on board the concerns that have been expressed about probation. I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service.

18:15

[Baroness Butler-Sloss]

Before the Minister concludes, perhaps I may again raise the question of “exceptional circumstances”. I hope that he appreciates the limitation of the word “exceptional”. I think that the lawyers in this House will all agree that that word will be treated by the courts as really meaning exceptional.

[Lord McNally]

I shall certainly take that back. Perhaps I may be quite clear about the Government’s intention. The use of “exceptional” is not a three-lane highway out of a request to have a punitive element. In consultation we have said that we see “exceptional” covering about 5% of circumstances. The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer. However, I will take back the noble and learned Baroness’s point about what the lawyers would make of this. We are expanding the definition from the 2003 Act and will see whether more legal advice is needed on the meaning of “exceptional”. However, it cannot mean that the exceptional becomes the general.

[Lord Reid of Cardowan]

The Minister said something very interesting there and I just want to clarify it as far as we can at this point. He said that some people might regard learning to read and write as punishment, but presumably some others might regard cleaning up a park, building a house or helping old people as punishment—in other words, they would be doing something they would not freely choose to do unless they were compelled to do it as a punishment. Would that fit into this category without having to be an exception?

[Lord McNally]

Yes, and I think that some of the people who have been quoted as pleading exception could well be asked to work in some of those areas. The noble Lord, Lord Elystan-Morgan, shakes his head but, for me, the big danger is there being public contempt for a system where we need public respect. I am talking about somebody whose life is totally dysfunctional, who has never been used to getting up in the morning and who has no idea of time-keeping. We have heard about a number of programmes where half a dozen people are invited to participate but within a week the number is down to two because the others have not bothered to attend. We have to get credibility into the system to make it work. Because we are putting flexibility and trust in the judiciary, I hope that it will see what Parliament is looking for and help us to that end.

[Lord Beecham]

This is not on the substance but perhaps I may ask for clarification on what the Minister is moving. Presumably he is not moving the amendments, because we will be doing that when the clauses are recommitted to Committee.

[Earl Attlee]

If I may assist the Committee, we are speaking to Amendment 155ZA.

[Lord Beecham]

I know what we are speaking to but we are not voting on it. We are not agreeing these amendments. Perhaps the clerks might advise. Are we not recommitting today’s business at the end of the next debate? I am not sure precisely what the procedure is. I suggest that the amendment be not moved and that we just leave it.

[Lord McNally]

All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.

[Lord Rosser]

As long as we are clear—I think we are; and I am not accusing the Minister of being otherwise —that, whatever happens now, if the amendments are in some way agreed, it will be open to us to have effectively a Committee stage next month where amendments to these government amendments can be put down, debated and voted on, if votes are called.

[Lord McNally]

I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.

[Lord Beecham]

These seem exceptional circumstances and, in that light, I am sure that we will accept the ruling.

Amendment 155ZA agreed.

Clause 23 : Community and other non-custodial sentencing of adults

Clause 23 disagreed.

Amendment 155ZB

Moved by

[Lord McNally]

155ZB: After Clause 23, insert the following new Clause—
“Deferred prosecution agreements
Schedule (Deferred prosecution agreements) makes provision about deferred prosecution agreements.”

[Lord McNally]

I beg to move this formally. Again, these amendments are purely technical. They either have been previously discussed or are consequential. They just bring the position up to date.

Amendment 155ZB agreed.

Clauses 24 to 27 agreed.

Clause 28 : Orders and regulations

Amendments 155A to 155C

Moved by

[Lord McNally]

155A: Clause 28, page 29, line 23, after “State” insert “or Lord Chancellor”

155B: Clause 28, page 29, line 28, after “State” insert “or Lord Chancellor”

155C: Clause 28, page 29, line 38, at end insert—
“(ea) an order under section 22(1);”

Amendments 155A to 155C agreed.

Amendment 155CA had been withdrawn from the Marshalled List.

Amendments 155CB to 155E

Moved by

[Lord McNally]

155CB: Clause 28, page 29, line 38, at end insert—
“( ) an order under paragraph 3(1)(c) or 31 of Schedule (Deferred prosecution agreements);”

155CC: Clause 28, page 29, line 39, leave out paragraph (f)

155CD: Clause 28, page 29, line 41, at end insert—
“( ) an order under section 31 bringing anything in Part 4 of Schedule (Dealing non-custodially with offenders) into force or bringing section (Dealing non-custodially with offenders) into force so far as relating to anything in that Part of that Schedule, other than an order which makes the provision permitted by section 31(4A) or (4B).”

155D: Clause 28, page 29, line 42, after “State” insert “or Lord Chancellor”

155E: Clause 28, page 30, line 21, leave out subsections (9) and (10)

Amendments 155CB to 155E agreed.

Clause 28, as amended, agreed.

Amendment 155EZA

Moved by

[Lord McNally]

155EZA: Before Schedule 16, insert the following new Schedule—
“Dealing non-custodially with offendersPart 1Community orders: punitive elements1 The Criminal Justice Act 2003 is amended as follows.
2 In section 177 (community orders) after subsection (2) insert—
“(2A) Where the court makes a community order, the court must—
(a) include in the order at least one requirement imposed for the purpose of punishment, or(b) impose a fine for the offence in respect of which the community order is made, or(c) comply with both of paragraphs (a) and (b).(2B) Subsection (2A) does not apply where there are exceptional circumstances which—
(a) relate to the offence or to the offender,(b) would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and(c) would make it unjust in all the circumstances for the court to impose a fine for the offence concerned.”3 In section 148(2A) (restrictions in subsection (2) on making community orders etc are subject to certain enactments) after “subject to” insert “section 177(2A) (community orders: punitive elements) and to”.
4 An amendment made by this Part of this Schedule does not affect orders in respect of offences committed before the amendment comes into force.
Part 2Deferring the passing of sentence to allow for restorative justice5 After section 1 of the Powers of Criminal Courts (Sentencing) Act 2000 (court’s power to defer passing of sentence) insert—
“1ZA Undertakings to participate in restorative justice activities
(1) Without prejudice to the generality of paragraph (b) of section 1(3), the requirements that may be imposed under that paragraph include restorative justice requirements.
(2) Any reference in this section to a restorative justice requirement is to a requirement to participate in an activity—
(a) where the participants consist of, or include, the offender and one or more of the victims, and(b) which aims to maximise the offender’s awareness of the impact of the offending concerned on the victims.(3) Imposition under section 1(3)(b) of a restorative justice requirement requires, in addition to the offender’s consent and undertaking under section 1(3), the consent of every other person who would be a participant in the activity concerned.
(4) For the purposes of subsection (3), a supervisor appointed under section 1A(2) does not count as a proposed participant.
(5) Where a restorative justice requirement is imposed under section 1(3)(b), the duty under section 1(5) (to give copies of order) extends to every person who would be a participant in the activity concerned.
(6) In this section “victim” means a victim of, or other person affected by, the offending concerned.”
6 In section 1(8) of that Act (effect of sections 1 and 1A to 1D) for “1A” substitute “1ZA”.
7 The amendment made by paragraph 5 does not apply in respect of offences committed before the amendment comes into force.
Part 3Removal of limits on compensation orders made against adults8 (1) Section 131 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on amount payable under magistrates’ court compensation order) is amended as follows.
(2) Before subsection (1) insert—
“(A1) This section applies if (but only if) a magistrates’ court has convicted a person aged under 18 (“the offender”) of an offence or offences.”
(3) In subsection (1) (compensation in respect of an offence not to exceed £5,000) for “a magistrates’ court in respect of any offence of which the court has convicted the offender” substitute “the court in respect of the offence, or any one of the offences,”.
(4) In subsection (2) (limit in respect of offences taken into consideration) for “a magistrates’” substitute “the”.
(5) In the title, at the end insert “in case of young offender”.
9 In section 33B(5) of the Environmental Protection Act 1990 (limit on compensation in relation to conviction for certain environmental offences) after “payable” insert “in case of young offender”.
10 Nothing in this Part of this Schedule affects orders in respect of offences committed before this Part of this Schedule comes into force.
Part 4Electronic monitoring of offenders11 The Criminal Justice Act 2003 is amended as follows.
12 (1) Section 177 (community orders) is amended as follows.
(2) In subsection (1) (requirements which may be included in a community order)—
(a) omit the “and” after paragraph (k), and(b) after paragraph (l) insert “, and(m) an electronic monitoring requirement (as defined by section 215).”(3) In subsection (2) (provisions to which subsection (1) is subject)—
(a) omit the “and” after paragraph (g), and(b) after paragraph (h) insert “, and(i) section 215(2) (electronic monitoring requirement).”(4) In subsection (3) (curfew or exclusion requirement must be accompanied by electronic monitoring requirement) for “(as defined by section 215)” substitute “within section 215(1)(a) for securing the electronic monitoring of the curfew or exclusion requirement”.
(5) Omit subsection (4) (power, in certain cases where subsection (3) does not apply, to impose requirement for electronic monitoring of another requirement included in the community order).
(6) In consequence, omit section 72(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
13 (1) Section 190 (suspended sentence orders) is amended as follows.
(2) In subsection (1) (requirements which may be included in a suspended sentence order)—
(a) omit the “and” after paragraph (k), and(b) after paragraph (l) insert “, and(m) an electronic monitoring requirement (as defined by section 215).”(3) In subsection (2) (provisions to which subsection (1) is subject)—
(a) omit the “and” after paragraph (g), and(b) after paragraph (h) insert “, and(i) section 215(2) (electronic monitoring requirement).”(4) In subsection (3) (curfew or exclusion requirement must be accompanied by electronic monitoring requirement) for “(as defined by section 215)” substitute “within section 215(1)(a) for securing the electronic monitoring of the curfew or exclusion requirement”.
(5) Omit subsection (4) (power, in certain cases where subsection (3) does not apply, to impose requirement for electronic monitoring of another requirement included in the suspended sentence order).
(6) In consequence, omit section 72(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
14 In section 192(3)(b) (reviews of suspended sentence order)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “190(1)” substitute “190(1)(a) to (l)”.15 In section 197(1)(a) (meaning of “the responsible officer” where curfew or exclusion requirement imposed)—
(a) in sub-paragraph (i)—(i) for “177(1)” substitute “177(1)(a) to (l)”, and(ii) for “190(1)” substitute “190(1)(a) to (l)”, and(b) in sub-paragraph (ii) after “requirement” insert “within section 215(1)(a)”.16 (1) Section 215 (electronic monitoring requirement) is amended as follows.
(2) In subsection (1) (“electronic monitoring requirement” is a requirement for securing the monitoring of compliance with other requirements)—
(a) for “for securing the” substitute “to submit to either or both of the following—(a) ”, and(b) at the end insert “, and(b) electronic monitoring of the offender’s whereabouts (otherwise than for the purpose of monitoring the offender’s compliance with any other requirements included in the order) during a period specified in the order.”(3) After subsection (4) insert—
“(4A) Where a relevant order imposes an electronic monitoring requirement, the offender must (in particular)—
(a) submit, as required from time to time by the responsible officer or the person responsible for the monitoring, to—(i) being fitted with, or installation of, any necessary apparatus, and(ii) inspection or repair of any apparatus fitted or installed for the purposes of the monitoring,(b) not interfere with, or with the working of, any apparatus fitted or installed for the purposes of the monitoring, and(c) take any steps required by the responsible officer, or the person responsible for the monitoring, for the purpose of keeping in working order any apparatus fitted or installed for the purposes of the monitoring.”(4) In subsection (5) (electronic monitoring requirement not to be imposed for monitoring compliance with alcohol abstinence and monitoring requirement) after “electronic monitoring requirement” insert “within subsection (1)(a)”.
(5) In subsection (6) (subsection (5) does not prevent electronic monitoring of compliance with other requirements) for “this is” substitute “the electronic monitoring requirement is within subsection (1)(b) or is included”.
17 After section 215 insert—
“215A Data from electronic monitoring: code of practice
(1) The Secretary of State must issue a code of practice relating to processing of data gathered in the course of electronic monitoring of offenders under electronic monitoring requirements imposed by relevant orders.
(2) A failure to observe a code issued under this section does not of itself make a person liable to any criminal or civil proceedings.”
18 (1) Section 218 (availability of arrangements in local area) is amended as follows.
(2) In subsection (4)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) in paragraph (b), for “those arrangements” substitute “the arrangements currently available”.(3) After subsection (8) insert—
“(9) A court may not include an electronic monitoring requirement within section 215(1)(b) in a relevant order in respect of an offender unless the court—
(a) has been notified by the Secretary of State that electronic monitoring arrangements are available in the local justice area proposed to be specified in the order,(b) is satisfied that the offender can be fitted with any necessary apparatus under the arrangements currently available and that any other necessary provision can be made under those arrangements, and(c) is satisfied that arrangements are generally operational throughout England and Wales (even if not always operational everywhere there) under which the offender’s whereabouts can be electronically monitored.”19 In Schedule 8 (breach etc of community order) in paragraph 3(b)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “177(1)” substitute “177(1)(a) to (l)”.20 (1) Schedules 9 and 13 (transfer of community or suspended sentence order to Scotland or Northern Ireland) are amended as follows.
(2) In paragraphs 1(2)(g) and 3(2)(h) of Schedule 9, and paragraphs 1(2)(g) and 6(2)(h) of Schedule 13, after “requirement” insert “within section 215(1)(a)”.
(3) In paragraphs 1(5) and 3(4A) of Schedule 9, and paragraphs 1(5) and 6(4A) of Schedule 13, before “to be complied with” insert “, or an electronic monitoring requirement within section 215(1)(b),”.
21 In Schedule 12 (breach or amendment of suspended sentence order and effect of further conviction) in paragraph 15(2)(b)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “190(1)” substitute “190(1)(a) to (l)”.Part 5Statements of assets and other financial circumstances of offenders etcFinancial circumstances orders22 In section 162(3) of the Criminal Justice Act 2003 (a “financial circumstances order” is a pre-sentencing order requiring a statement of an offender’s financial circumstances) after “statement of his” insert “assets and other”.
Further amendments23 In section 84 of the Magistrates’ Courts Act 1980 (court’s power to require statement of means)—
(a) in subsection (1) (court may require statement of means before or on inquiring into means under section 82) for “means”, in the second place, substitute “assets and other financial circumstances”, and(b) in the title for “means” substitute “assets and other financial circumstances”.24 In section 20A of the Criminal Justice Act 1991 (false statements as to financial circumstances)—
(a) in subsection (1) (person charged with offence commits further offence if person responds to official request by making false statement etc as to financial circumstances) for “his financial circumstances” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both)”, and(b) in subsection (1A) (person charged with offence commits further offence if person fails to provide statement of financial circumstances in response to official request) for “his financial circumstances in response to” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both) requested by”.25 In section 13B of the Crime and Disorder Act 1998 (parental compensation orders: the compensation)—
(a) in subsection (4) (provision by parent or guardian of statement of financial circumstances) after “statement of his” insert “assets and other”, and(b) in subsection (6) (provision of false statement) omit “of his financial circumstances”.26 (1) The Courts Act 2003 is amended as follows.
(2) In paragraph 48 of Schedule 5 (offences relating to provision of information as to financial circumstances)—
(a) in sub-paragraph (1) (person commits offence if person responds to relevant request by making false statement etc as to financial circumstances) for “his financial circumstances” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both)”,(b) in sub-paragraph (3) (person commits offence if person fails to provide statement of financial circumstances in response to relevant request) for “statement of his financial circumstances to a fines officer in response to” substitute “fines officer with a statement of financial circumstances (whether a statement of assets, of other financial circumstances or of both) requested by”, and(c) in sub-paragraph (5) (meaning of “relevant request”), in the opening words, after “information about P’s financial circumstances” insert “(whether about P’s assets, P’s other financial circumstances or both)”.(3) In paragraph 2 of Schedule 6 (cases in which work order may be made)—
(a) in sub-paragraph (3) (magistrates’ court considering making work order may order person to give statement of means) for “means” substitute “assets and other financial circumstances”, and(b) in sub-paragraph (4) (application of section 84(2) and (4) of the Magistrates’ Courts Act 1980) for “means” substitute “assets and other financial circumstances”.Part 6Information to enable a court to deal with an offenderPower to disclose information27 (1) The Secretary of State or a Northern Ireland Department, or a person providing services to the Secretary of State or a Northern Ireland Department, may disclose social security information to a relevant person.
(2) Her Majesty’s Revenue and Customs, or a person providing services to the Commissioners for Her Majesty’s Revenue and Customs, may disclose finances information to a relevant person.
(3) The disclosure authorised by sub-paragraph (1) or (2) is disclosure of the information concerned for use by a court that, in connection with dealing with a person (“the defendant”) for an offence, is inquiring into or determining the defendant’s financial circumstances.
(4) Sub-paragraphs (1) and (2) do not authorise disclosure in a particular case at a time when the defendant is under 18.
(5) Information disclosed to a relevant person under sub-paragraph (1) or (2) or paragraph (a)(ii)—
(a) must not be further disclosed by the relevant person except—(i) to a court that, in connection with dealing with the defendant for the offence, is inquiring into or determining the defendant’s financial circumstances, or(ii) to another relevant person who wants social security information or finances information in order that it can be put before a court that, in connection with dealing with the defendant for the offence, is inquiring into or determining the defendant’s financial circumstances, and(b) must not be used by the relevant person otherwise than for the purpose of disclosing it as mentioned in paragraph (a)(i) or (ii).(6) Sub-paragraphs (1), (2) and (5)(a) not only authorise disclosure after conviction of the defendant but also authorise disclosure at any time after the defendant is first charged with the offence.
(7) Sub-paragraph (5) does not prohibit—
(a) disclosure to the defendant, or to a person representing the defendant in any proceedings in connection with the offence;(b) disclosure or use of information which is in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it;(c) disclosure or use of information which has previously been disclosed to the public with lawful authority;(d) disclosure or use of information so far as necessary to comply with—(i) an order of a court,(ii) an order of a tribunal established by or under an Act, or(iii) a duty imposed by or under an Act.(8) In sub-paragraph (7) “court” means any court, but elsewhere in this paragraph “court” means—
(a) a magistrates’ court, or the Crown Court, in England and Wales,(b) the Court Martial, the Service Civilian Court or the Summary Appeal Court, or(c) any court hearing an appeal (including an appeal by case stated) from a court within paragraph (a) or (b).(9) In this paragraph—
“finances information” means information which—(a) is about a person’s income, gains or capital, and(b) is held—(i) by Her Majesty’s Revenue and Customs, or(ii) by a person providing services to the Commissioners for Her Majesty’s Revenue and Customs in connection with the provision of those services;“relevant person” means—(a) a person who is appointed by the Lord Chancellor under section 2(1) of the Courts Act 2003 or provided under a contract made by virtue of section 2(4) of that Act,dd(b) a person who is a member of or on the staff of the Service Prosecuting Authority, or(c) a person not within paragraph (b) who is, or who is assisting, a person engaged to represent the Service Prosecuting Authority in proceedings before a court;“Service Prosecuting Authority” means—(a) the Director of Service Prosecutions, and(b) the persons appointed under section 365 of the Armed Forces Act 2006 (prosecuting officers);“social security information” means information which is held for the purposes of functions relating to social security—(a) by the Secretary of State or a Northern Ireland Department, or(b) by a person providing services to the Secretary of State, or a Northern Ireland Department, in connection with the provision of those services,or information which is held with information so held. (10) The reference in sub-paragraph (9) to functions relating to social security includes a reference to functions relating to any of the matters listed in section 127(8) of the Welfare Reform Act 2012 (statutory payments and maternity allowances).
Offence where information wrongly used or disclosed28 (1) It is an offence for a person to disclose or use information in contravention of paragraph 27(5).
(2) It is a defence for a person charged with an offence under sub-paragraph (1) to prove that the person reasonably believed that the disclosure or use concerned was lawful.
(3) A person guilty of an offence under sub-paragraph (1) is liable—
(a) on conviction on indictment—(i) to imprisonment for a term not exceeding 2 years, or(ii) to a fine, or(iii) to both;(b) on summary conviction—(i) to imprisonment for a period not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum, or(iii) to both.(4) Sub-paragraph (3)(b) applies—
(a) in England and Wales in relation to offences committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (general limit on power of magistrates’ courts to impose imprisonment), and(b) in Northern Ireland,as if the reference to 12 months were a reference to 6 months.(5) A prosecution for an offence under sub-paragraph (1)—
(a) may be instituted in England and Wales only by or with the consent of the Director of Public Prosecutions, and(b) may be instituted in Northern Ireland only by or with the consent of the Director of Public Prosecutions for Northern Ireland.Part 7Related amendments in Armed Forces Act 2006Community orders: punitive elements29 The Armed Forces Act 2006 is amended as follows.
30 In section 178 (service community orders), in subsection (3) (provisions of the 2003 Act in which “community order” includes a service community order) for “177(3)” substitute “177(2A)”.
31 (1) Section 182 (overseas community orders) is amended as follows.
(2) After subsection (3) insert—
“(3A) In section 177(2A) and (2B) of the 2003 Act (community orders: punitive elements) “community order” includes an overseas community order if the offender is aged 18 or over when convicted of the offence in respect of which the overseas community order is made.”
(3) In subsection (5) (provisions of the 2003 Act in which “court” includes a relevant service court) for “those provisions” substitute “the provisions of the 2003 Act mentioned in subsections (3A) and (4)”.
32 In section 270 (restrictions on community punishments) after subsection (2) insert—
“(2A) Subsection (2) is subject to section 177(2A) of the 2003 Act (community orders: punitive elements) as applied by section 178(3) and section 182(3A).”
33 An amendment made by any of paragraphs 30 to 32 does not affect orders in respect of offences committed before the amendment comes into force.
Removal of limits on compensation orders made against adults34 (1) Section 284 of the Armed Forces Act 2006 (Service Civilian Court compensation orders etc: maximum amounts) is amended as follows.
(2) After subsection (2) insert—
“(2A) The following subsections apply if (but only if) the Service Civilian Court has convicted a person aged under 18 (“the offender”) of an offence or offences.”
(3) In subsection (3) (compensation in respect of an offence not to exceed amount mentioned in section 131(1) of the Powers of Criminal Courts (Sentencing) Act 2000) for “any offence of which the court has convicted the offender” substitute “the offence, or any one of the offences,”.
(4) Nothing in this paragraph affects orders in respect of offences committed before the day on which this paragraph comes into force.
Electronic monitoring of offenders35 (1) The Armed Forces Act 2006 is amended as follows.
(2) In section 182(1A) (requirements which may not be included in overseas community orders) at the end insert “or (m) (an electronic monitoring requirement)”.
(3) In section 183(1) (provisions of Criminal Justice Act 2003 which do not apply to overseas community orders) for “section 215” substitute “sections 215 and 215A”.
Statements of assets and other financial circumstances of offenders etc36 In section 266(2) of the Armed Forces Act 2006 (meaning of “financial statement order”) after “statement of his” insert “assets and other”.”

[Lord McNally]

I beg to move.

Amendment 155EZB (to Amendment 155EZA) not moved.

Amendment 155EZA agreed.

Amendment 155EZC

Moved by

[Lord McNally]

155EZC: Before Schedule 16, insert the following new Schedule—
“Deferred Prosecution AgreementsPart 1GeneralCharacteristics of a deferred prosecution agreement1 (1) A deferred prosecution agreement (a “DPA”) is an agreement between a designated prosecutor and a person (“P”) whom the prosecutor is considering prosecuting for an offence specified in Part 2 (the “alleged offence”).
(2) Under a DPA—
(a) P agrees to comply with the requirements imposed on P by the agreement;(b) the prosecutor agrees that, upon approval of the DPA by the court (see paragraph 8), paragraph 2 is to apply in relation to the prosecution of P for the alleged offence.Effect of DPA on court proceedings 2 (1) Proceedings in respect of the alleged offence are to be instituted by the prosecutor in the Crown Court by preferring a bill of indictment charging P with the alleged offence (see section 2(2)(ba) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill of indictment preferred with consent of Crown Court judge following DPA approval)).
(2) As soon as proceedings are instituted under sub-paragraph (1) they are automatically suspended.
(3) The suspension may only be lifted on an application to the Crown Court by the prosecutor; and no such application may be made at any time when the DPA is in force.
(4) At a time when proceedings are suspended under sub-paragraph (2), no other person may prosecute P for the alleged offence.
Designated prosecutors3 (1) The following are designated prosecutors—
(a) the Director of Public Prosecutions;(b) the Director of the Serious Fraud Office;(c) any prosecutor designated under this paragraph by an order made by the Secretary of State.(2) A designated prosecutor must exercise personally the power to enter into a DPA and, accordingly, any enactment that enables a function of a designated prosecutor to be exercised by a person other than the prosecutor concerned does not apply.
(3) But if the designated prosecutor is unavailable, the power to enter into a DPA may be exercised personally by a person authorised in writing by the designated prosecutor.
Persons who may enter into a DPA with a prosecutor4 (1) P may be a body corporate, a partnership or an unincorporated association, but may not be an individual.
(2) In the case of a DPA between a prosecutor and a partnership—
(a) the DPA must be entered into in the name of the partnership (and not in that of any of the partners);(b) any money payable under the DPA must be paid out of the funds of the partnership.(3) In the case of a DPA between a prosecutor and an unincorporated association—
(a) the DPA must be entered into in the name of the association (and not in that of any of its members);(b) any money payable under the DPA must be paid out of the funds of the association.Content of a DPA5 (1) A DPA must contain a statement of facts relating to the alleged offence, which may include admissions made by P.
(2) A DPA must specify an expiry date, which is the date on which the DPA ceases to have effect if it has not already been terminated under paragraph 9 (breach).
(3) The requirements that a DPA may impose on P include, but are not limited to, the following requirements—
(a) to pay to the prosecutor a financial penalty;(b) to compensate victims of the alleged offence;(c) to donate money to a charity or other third party;(d) to disgorge any profits made by P from the alleged offence;(e) to implement a compliance programme or make changes to an existing compliance programme relating to P’s policies or to the training of P’s employees or both;(f) to co-operate in any investigation related to the alleged offence;(g) to pay any reasonable costs of the prosecutor in relation to the alleged offence or the DPA.The DPA may impose time limits within which P must comply with the requirements imposed on P.(4) The amount of any financial penalty agreed between the prosecutor and P must be broadly comparable to the fine that a court would have imposed on P on conviction for the alleged offence following a guilty plea.
(5) A DPA may include a term setting out the consequences of a failure by P to comply with any of its terms.
Code on DPAs6 (1) The Director of Public Prosecutions and the Director of the Serious Fraud Office must jointly issue a Code for prosecutors giving guidance on—
(a) the general principles to be applied in determining whether a DPA is likely to be appropriate in a given case, and(b) the disclosure of information by a prosecutor to P in the course of negotiations for a DPA and after a DPA has been agreed.(2) The Code may also give guidance on any other relevant matter, including—
(a) the use of information obtained by a prosecutor in the course of negotiations for a DPA;(b) variation of a DPA;(c) termination of a DPA and steps that may be taken by a prosecutor following termination;(d) steps that may be taken by a prosecutor when the prosecutor suspects a breach of a DPA.(3) The Code must be set out in the report made by the Director of Public Prosecutions to the Attorney General under section 9 of the Prosecution of Offences Act 1985 for the year in which the Code is issued.
(4) The Code may from time to time be altered or replaced by agreement between—
(a) the Director of Public Prosecutions,(b) the Director of the Serious Fraud Office, and(c) any prosecutor who is for the time being designated by an order made under paragraph 3.(5) If the Code is altered or replaced, the new Code must be set out in the report made by the Director of Public Prosecutions to the Attorney General under section 9 of the Prosecution of Offences Act 1985 for the year in which the Code is altered or replaced.
(6) A prosecutor must take account of the Code in exercising functions under this Schedule.
Court approval of DPA: preliminary hearing7 (1) After the commencement of negotiations between a prosecutor and P in respect of a DPA but before the terms of the DPA are agreed, the prosecutor must apply to the Crown Court for a declaration that—
(a) entering into a DPA with P is likely to be in the interests of justice, and(b) the proposed terms of the DPA are fair, reasonable and proportionate.(2) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (1).
(3) The prosecutor may make a further application to the court for a declaration under sub-paragraph (1) if, following the previous application, the court declined to make a declaration.
(4) A hearing at which an application under this paragraph is determined must be held in private, any declaration under sub-paragraph (1) must be made in private, and reasons under sub-paragraph (2) must be given in private.
Court approval of DPA: final hearing8 (1) When a prosecutor and P have agreed the terms of a DPA, the prosecutor must apply to the Crown Court for a declaration that—
(a) the DPA is in the interests of justice, and(b) the terms of the DPA are fair, reasonable and proportionate.(2) But the prosecutor may not make an application under sub-paragraph (1) unless the court has made a declaration under paragraph 7(1) (declaration on preliminary hearing).
(3) A DPA only comes into force when it is approved by the Crown Court making a declaration under sub-paragraph (1).
(4) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (1).
(5) A hearing at which an application under this paragraph is determined may be held in private.
(6) But if the court decides to approve the DPA and make a declaration under sub-paragraph (1) it must do so, and give its reasons, in open court.
(7) Upon approval of the DPA by the court, the prosecutor must publish—
(a) the DPA,(b) the declaration of the court under paragraph 7 and the reasons for its decision to make the declaration,(c) in a case where the court initially declined to make a declaration under paragraph 7, the court’s reason for that decision, and (d) the court’s declaration under this paragraph and the reasons for its decision to make the declaration,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Breach of DPA9 (1) At any time when a DPA is in force, if the prosecutor believes that P has failed to comply with the terms of the DPA, the prosecutor may make an application to the Crown Court under this paragraph.
(2) On an application under sub-paragraph (1) the court must decide whether, on the balance of probabilities, P has failed to comply with the terms of the DPA.
(3) If the court finds that P has failed to comply with the terms of the DPA, it may—
(a) invite the prosecutor and P to agree proposals to remedy P’s failure to comply, or(b) terminate the DPA.(4) The court must give reasons for its decisions under sub-paragraphs (2) and (3).
(5) Where the court decides that P has not failed to comply with the terms of the DPA, the prosecutor must publish the court’s decision and its reasons for that decision, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(6) Where the court invites the prosecutor and P to agree proposals to remedy P’s failure to comply, the prosecutor must publish the court’s decisions under sub-paragraphs (2) and (3) and the reasons for those decisions, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(7) Where the court terminates a DPA under sub-paragraph (3)(b), the prosecutor must publish—
(a) the fact that the DPA has been terminated by the court following a failure by P to comply with the terms of the DPA, and(b) the court’s reasons for its decisions under sub-paragraphs (2) and (3),unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).(8) If the prosecutor believes that P has failed to comply with the terms of the DPA but decides not to make an application to the Crown Court under this paragraph, the prosecutor must publish details relating to that decision, including—
(a) the reasons for the prosecutor’s belief that P has failed to comply, and(b) the reasons for the prosecutor’s decision not to make an application to the court,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Variation of DPA10 (1) At any time when a DPA is in force, the prosecutor and P may agree to vary its terms if—
(a) the court has invited the parties to vary the DPA under paragraph 9(3)(a), or(b) variation of the DPA is necessary to avoid a failure by P to comply with its terms in circumstances that were not, and could not have been, foreseen by the prosecutor or P at the time that the DPA was agreed.(2) When the prosecutor and P have agreed to vary the terms of a DPA, the prosecutor must apply to the Crown Court for a declaration that—
(a) the variation is in the interests of justice, and(b) the terms of the DPA as varied are fair, reasonable and proportionate.(3) A variation of a DPA only takes effect when it is approved by the Crown Court making a declaration under sub-paragraph (2).
(4) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (2).
(5) A hearing at which an application under this paragraph is determined may be held in private.
(6) But if the court decides to approve the variation and make a declaration under sub-paragraph (2) it must do so, and give its reasons, in open court.
(7) Where the court decides not to approve the variation, the prosecutor must publish the court’s decision and the reasons for it, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(8) Where the court decides to approve the variation the prosecutor must publish—
(a) the DPA as varied, and(b) the court’s declaration under this paragraph and the reasons for its decision to make the declaration,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Discontinuance of proceedings on expiry of DPA 11 (1) If a DPA remains in force until its expiry date, then after the expiry of the DPA the proceedings instituted under paragraph 2(1) are to be discontinued by the prosecutor giving notice to the Crown Court that the prosecutor does not want the proceedings to continue.
(2) Where proceedings are discontinued under sub-paragraph (1), fresh criminal proceedings may not be instituted against P for the alleged offence.
(3) But sub-paragraph (2) does not prevent fresh proceedings from being instituted against P in a case where, after a DPA has expired, the prosecutor finds that, during the course of the negotiations for the DPA—
(a) P provided inaccurate, misleading or incomplete information to the prosecutor, and(b) P knew or ought to have known that the information was inaccurate, misleading or incomplete.(4) A DPA is not to be treated as having expired for the purposes of sub-paragraph (1) if, on the expiry date specified in the DPA—
(a) an application made by the prosecutor under paragraph 9 (breach) has not yet been decided by the court,(b) following an application under paragraph 9 the court has invited the parties to agree proposals to remedy P’s failure to comply, but the parties have not yet reached an agreement, or(c) the parties have agreed proposals to remedy P’s failure to comply following an invitation of the court under paragraph 9(3)(a) but P has not yet complied with the agreement.(5) In the case mentioned in sub-paragraph (4)(a)—
(a) if the court decides that P has not failed to comply with the terms of the DPA, or that P has failed to comply but does not take action under paragraph 9(3), the DPA is to be treated as expiring when the application is decided;(b) if the court terminates the DPA, the DPA is to be treated as not having remained in force until its expiry date (and sub-paragraph (1) therefore does not apply);(c) if the court invites the parties to agree proposals to remedy P’s failure to comply, the DPA is to be treated as expiring when the parties have reached such an agreement and P has complied with it. (6) In the case mentioned in sub-paragraph (4)(b), the DPA is to be treated as expiring when the parties have reached an agreement and P has complied with it.
(7) In the case mentioned in sub-paragraph (4)(c), the DPA is to be treated as expiring when P complies with the agreement.
(8) Where proceedings are discontinued under sub-paragraph (1), the prosecutor must publish—
(a) the fact that the proceedings have been discontinued, and(b) details of P’s compliance with the DPA,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Court order postponing publication of information by prosecutor12 The court may order that the publication of information by the prosecutor under paragraph 8(7), 9(5), (6), (7) or (8), 10(7) or (8) or 11(8) be postponed for such period as the court considers necessary if it appears to the court that postponement is necessary for avoiding a substantial risk of prejudice to the administration of justice in any legal proceedings.
Use of material in criminal proceedings13 (1) Sub-paragraph (2) applies where a DPA between a prosecutor and P has been approved by the Crown Court under paragraph 8.
(2) The statement of facts contained in the DPA is, in any criminal proceedings brought against P for the alleged offence, to be treated as an admission by P under section 10 of the Criminal Justice Act 1967 (proof by formal admission).
(3) Sub-paragraph (4) applies where a prosecutor and P have entered into negotiations for a DPA but the DPA has not been approved by the Crown Court under paragraph 8.
(4) Material described in sub-paragraph (6) may only be used in evidence against P—
(a) on a prosecution for an offence consisting of the provision of inaccurate, misleading or incomplete information, or(b) on a prosecution for some other offence where in giving evidence P makes a statement inconsistent with the material.(5) However, material may not be used against P by virtue of sub-paragraph (4)(b) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of P in the proceedings arising out of the prosecution.
(6) The material is—
(a) material that shows that P entered into negotiations for a DPA, including in particular—(i) any draft of the DPA;(ii) any draft of a statement of facts intended to be included within the DPA;(iii) any statement indicating that P entered into such negotiations;(b) material that was created solely for the purpose of preparing the DPA or statement of facts.Money received by prosecutor under a DPA14 Any money received by a prosecutor under a term of a DPA that provides for P to pay a financial penalty to the prosecutor or to disgorge profits made from the alleged offence is to be paid into the Consolidated Fund.
Part 2Offences in relation to which a DPA may be entered intoCommon law offences15 Conspiracy to defraud.
16 Cheating the public revenue.
Statutory offences17 An offence under any of the following sections of the Theft Act 1968—
(a) section 1 (theft); (b) section 17 (false accounting);(c) section 20 (suppression etc of documents);(d) section 24A (dishonestly retaining a wrongful credit).18 An offence under any of the following sections of the Customs and Excise Management Act 1979—
(a) section 68 (offences in relation to exportation of prohibited or restricted goods);(b) section 167 (untrue declarations etc);(c) section 170 (fraudulent evasion of duty etc).19 An offence under any of the following sections of the Forgery and Counterfeiting Act 1981—
(a) section 1 (forgery);(b) section 2 (copying a false instrument);(c) section 3 (using a false instrument);(d) section 4 (using a copy of a false instrument);(e) section 5 (offences relating to money orders, share certificates, passports etc).20 An offence under section 450 of the Companies Act 1985 (destroying, mutilating etc company documents).
21 An offence under section 72 of the Value Added Tax Act 1994 (fraudulent evasion of VAT).
22 An offence under any of the following sections of the Financial Services and Markets Act 2000—
(a) section 23 (contravention of prohibition of carrying on regulated activity unless authorised or exempt);(b) section 25 (contravention of restrictions on financial promotion);(c) section 85 (prohibition of dealing etc in transferable securities without approved prospectus);(d) section 346 (provision of false or misleading statements to auditor or actuary);(e) section 397 (misleading statements and practices);(f) section 398 (misleading the FSA).23 An offence under any of the following sections of the Proceeds of Crime Act 2002—
(a) section 327 (concealing etc criminal property);(b) section 328 (arrangements facilitating acquisition etc of criminal property);(c) section 329 (acquisition, use and possession of criminal property);(d) section 330 (failing to disclose knowledge or suspicion of money laundering);(e) section 333A (tipping off).24 An offence under any of the following sections of the Companies Act 2006—
(a) section 658 (general rule against limited company acquiring its own shares);(b) section 680 (prohibited financial assistance);(c) section 993 (fraudulent trading).25 An offence under any of the following sections of the Fraud Act 2006—
(a) section 1 (fraud);(b) section 6 (possession etc of articles for use in frauds);(c) section 7 (making or supplying articles for use in frauds);(d) section 11 (obtaining services dishonestly).26 An offence under any of the following sections of the Bribery Act 2010—
(a) section 1 (bribing another person);(b) section 2 (being bribed);(c) section 6 (bribery of foreign public officials);(d) section 7 (failure of commercial organisations to prevent bribery). 27 An offence under regulation 45 of the Money Laundering Regulations 2007 (S.I. 2007/2157).
Ancillary offences28 Any ancillary offence relating to an offence specified in this Part.
Interpretation of this Part29 “Ancillary offence”, in relation to an offence, means—
(a) aiding, abetting, counselling or procuring the commission of the offence;(b) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to the offence;(c) attempting or conspiring to commit the offence.30 This Schedule applies in relation to conduct occurring before the commencement of this Schedule as if an offence specified in this Part included any corresponding offence under the law in force at the time of the conduct (and for the purposes of this paragraph, the common law offence of inciting the commission of another offence is to be treated as an offence corresponding to an offence under Part 2 of the Serious Crime Act 2007).
Power to amend this Part31 The Secretary of State may by order amend this Part by—
(a) adding an offence of financial or economic crime;(b) removing an offence.Part 3Deferred Prosecution Agreements: Consequential and Transitional ProvisionConsequential amendments32 In section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (procedure for indictment of offenders), in subsection (2) after paragraph (b) insert—
“(ba) the bill is preferred with the consent of a judge of the Crown Court following a declaration by the court under paragraph 8(1) of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 (court approval of deferred prosecution agreement); or”.33 In section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (issue of witness summons on application to the Crown Court), after subsection (6) insert—
“(6A) Where the proceedings concerned relate to an offence that is the subject of a deferred prosecution agreement within the meaning of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013, an application must be made as soon as is reasonably practicable after the suspension of the proceedings is lifted under paragraph 2(3) of that Schedule.”
34 In Schedule 1 to the Contempt of Court Act 1981 (times when proceedings are active for purposes of strict liability rule for contempt of court), in paragraph 7, after paragraph (aa) insert—
“(ab) in England and Wales, if they are discontinued by virtue of paragraph 11 of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 (deferred prosecution agreements);”.35 In section 15 of the Prosecution of Offences Act 1985 (interpretation), in subsection (2)(d) after “(b)” insert “or (ba)”.
36 In section 51 of the Criminal Justice and Public Order Act 1994 (intimidation etc of witnesses, jurors and others), in subsection 10(a)(iii) after “2(2)(b)” insert “or (ba)”.
37 (1) The Criminal Procedure and Investigations Act 1996 is amended as follows.
(2) In section 1 (application of Part 1: disclosure), in subsection (2), after paragraph (f) insert “, or
(g) following the preferment of a bill of indictment charging a person with an indictable offence under the authority of section 2(2)(ba) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill of indictment preferred with consent of Crown Court judge following approval of deferred prosecution agreement), the suspension of the proceedings against the person under paragraph 2(2) of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 is lifted under paragraph 2(3) of that Schedule.” (3) In section 28 (application of Part 3: preparatory hearings), in subsection (1)(c) after “2(2)(b)” insert “or (ba)”.
(4) In section 39 (meaning of pre-trial hearing), in subsection (2)(a) after “2(2)(b)” insert “or (ba)”.
(5) In Schedule 3 (fraud), in paragraph 8(1)(c) after “2(2)(b)” insert “or (ba)”.
38 In section 85 of the Proceeds of Crime Act 2002 (proceedings), in subsection (1)(c) at the end insert “or subsection (2)(ba) of that section (preferment by Crown Court judge following approval of deferred prosecution agreement)”.
Transitional provision39 (1) Conduct constituting an alleged offence that occurred before the relevant commencement day may be taken into account for the purposes of this Schedule.
(2) In this paragraph, the “relevant commencement day” means—
(a) in a case where the alleged offence is an offence that is specified in Part 2 when this Schedule comes into force, the day on which this Schedule comes into force;(b) in a case where the alleged offence is an offence that is subsequently added to Part 2 (whether by order under paragraph 31 or otherwise), the day when the enactment adding that offence to Part 2 comes into force.”

[Lord McNally]

First, I thank the House for its understanding. I am sure that your Lordships will not find when you wake up tomorrow morning that you have cleared the Bill at all its stages and that it will not be coming back. It was a slightly unusual procedure and I am very grateful to the House for its co-operation on it. I hope that once people have had a chance to look at Hansard and see the new shape of the Bill we can, in two weeks’ time, have a proper Committee stage with amendments and the rest. We now turn to the second part of what we were trying to do, which is to bring in the deferred prosecution agreement.

These amendments introduce a new tool for tackling corporate economic crime: deferred prosecution agreements. DPAs will enable more organisations involved in wrongdoing to be brought to justice and secure better outcomes for victims. Last year alone, fraud cost its victims and the taxpayer an estimated £73 billion. This is unacceptable. More needs to be done to hold organisations involved in such wrongdoing to account. As noble Lords will be aware, this Government are committed to making sure that there is the same tough response to economic crime as for any other kind of offending. This harmful activity, which undermines the economy, must be tackled.

We have already brought into force the Bribery Act 2010 and published a national strategic plan, Fighting Fraud Together. Furthermore, the Bill will establish the National Crime Agency, which will have a strong focus on combating economic crime. DPAs are the next step in the battle against economic crime. Currently, prosecuting an organisation for economic crime can pose significant challenges. Such prosecutions often take many years and cost millions of pounds. In many cases, a prosecution and conviction can do more harm than good. Organisations may go out of business, shareholders may lose their investments and employees may be out of work.

The key elements of this scheme are set out in the proposed new schedule in this group of amendments. A DPA will be a voluntary agreement between a prosecutor and an organisation under investigation for economic crime. In return for complying with tough terms and conditions, a prosecution will be commenced but deferred for the duration of the agreement. If the organisation successfully complies with the terms of the agreement, the prosecution will be dropped. In this way, organisations would be held to account for their wrongdoing without the uncertainty, expense or length of a criminal trial. However, if the organisation does not comply with the agreement they can be prosecuted in the usual way. The agreement will be subject to oversight and scrutiny by the judiciary to ensure that it is in the interests of justice and that its terms are fair, reasonable and proportionate. Once agreed and approved by the court the agreement will be fully transparent, with the terms being published for all to see.

Initially, the Director of Public Prosecutions and the director of the Serious Fraud Office will be the only prosecutors able to enter into a DPA. This is because they are, by and large, the prosecutors responsible for bringing proceedings for the relevant offences. However, this may not always be the case. The list of relevant economic offences set out in Part 2 of the proposed new schedule may change, as might the role and remit of different prosecutors. That is why we have provided a power for the Secretary of State to designate further prosecutors as being capable of entering into a DPA. Any decision by a prosecutor to enter into a DPA must be made by the director of the relevant prosecuting agency personally, to ensure that there is prosecutorial oversight of each agreement at the highest level.

These agreements may be used only to address alleged economic offending by organisations. Let me be clear: a DPA cannot be entered into with an individual, nor may they be entered into for just any crime. They have been developed to provide an additional tool to assist in the battle against economic wrongdoing by organisations. Individuals who commit economic crime will be best dealt with through criminal prosecution, where a range of punishments and sanctions are available—including the ultimate punishment of imprisonment.

Paragraph 5 of the proposed new schedule sets out the terms that a DPA must and may contain. If DPAs are to be meaningful, they must make clear what wrongdoing they seek to address and what sanctions are being imposed for dealing with this. For that reason, every DPA will contain a statement agreed between the parties setting out the facts of the case.

Each agreement will set out stringent measures with which an organisation must comply. These measures will need to be proportionate to the alleged wrongdoing and capable of being tailored to the facts of the case. The proposed new schedule does not set out every possible term and condition; that is for the parties to decide. However, it does provide examples of terms that might be appropriate. The terms may include compensating victims of the organisation’s wrongdoing and payment of a financial penalty. Other conditions may require the organisation to put in place a robust compliance and monitoring programme or to pay the prosecutor’s costs.

In determining the level of any financial penalty, the amount must broadly reflect the fine that a court would have imposed on a conviction following an early guilty plea by the organisation. Both parties will need to take account of the various factors that would be considered by a sentencing court, including relevant sentencing guidelines relating to offences, application of the early guilty plea reduction and the means of the organisation. Organisations will not be getting off lightly.

18:30

It is essential that there is transparency and consistency in how DPAs operate. The code of practice for prosecutors, issued by the Director of Public Prosecutions and the director of the Serious Fraud Office, will play an important part in meeting these requirements. The code will be publicly available and will be laid before Parliament. It is not only prosecutors who will benefit from the code of practice. The respondents to our consultation clearly saw this code as an important tool for organisations and the public to understand how this process will operate. To this end, the code may also give clear guidance on other relevant matters such as how information obtained by the prosecutor during negotiations will be treated. The Government expect that prosecutors will consult on its full contents.

Paragraphs 7 and 8 of the proposed new schedule explain the process by which a DPA will be developed by the parties and approved by the Crown Court. Once the parties have negotiated an initial draft of the agreement, the prosecutor must apply to the court for a declaration that a DPA in the form the parties are seeking is likely to be appropriate. At a preliminary hearing, the judge would be given notice of the intention to enter into a DPA and would be presented with an outline of the basic facts of the case and the intended terms of the agreement. The judge would give an early view on whether a DPA is likely to be in the interests of justice, and indicate whether the proposed terms are likely to be fair, reasonable and proportionate. This hearing will be in private to ensure that parties are able to discuss the proposed terms of the agreement openly. Once an agreement is entered into, the preliminary determination by the judge will be published by the prosecutor to ensure transparency.

Following the preliminary hearing, the parties will be able to revisit the agreement in light of the views given by the judge. Once they have reached a final agreement, the prosecutor will need to seek a declaration from the court confirming that the proposed agreement is in the interests of justice and that its terms are fair, reasonable and proportionate. This final hearing will start in private and would move into open court if the agreement meets the tests. The terms of the DPA would then be publicly outlined and explained, and the court would give reasons for the declaration. Once approved, the final agreement and the court’s declarations from both the preliminary and final hearings would be published.

This approach will ensure that there is scrutiny and transparency throughout the process. However, when an agreement is not made, the confidentiality of any discussions between the parties would be protected to avoid potential prejudice to any future prosecution of the organisation or other criminal proceedings. Once the agreement is approved, the prosecutor will lay the relevant charges before the court and proceedings would then be immediately suspended. This suspension will be the sword of Damocles, providing the threat of prosecution should the organisation fail to fulfil its agreement.

A DPA will not remain in force indefinitely. It is only right that if the terms and conditions have been met the matter should come to an end. Each agreement will therefore specify an expiry date. Once the conditions of the agreement have been complied with, the suspended proceedings against the organisation would be discontinued. The organisation would not then be able to be prosecuted for the same offences. However, this will not prevent a prosecutor bringing fresh proceedings if they discover that the organisation provided false information during negotiations. Organisations should not be able to evade prosecution by entering into a DPA where they have misled prosecutors.

As a DPA will be offered only to organisations that are genuinely co-operative, we expect the terms of the agreement to be complied with in every case. However, there may be occasions where for some unforeseen reason, this does not happen. We have therefore made provision to deal with instances of breach and have provided a mechanism to vary the agreement if that proves absolutely necessary. A variation would be allowed only when it was necessary to prevent a breach and in circumstances that could not have been foreseen at the time the agreement was made. Any proposed variation will be subject to scrutiny by a judge to ensure that it is in the interests of justice, and that the variation proposed is fair, reasonable and proportionate.

If a prosecutor believes that an organisation has breached an agreement, they may apply to the Crown Court to determine whether, on the balance of probabilities, a term has in fact been breached. Alternatively, the agreement itself may specify how a breach for certain of its terms should be addressed. If the court determines that a breach has occurred, it may either invite the parties to remedy the breach or order the agreement to be terminated. As with all hearings throughout this process, the court is required to give reasons for its decision, which will be published by the prosecutor.

Paragraph 13 of the proposed new schedule sets out how information contained in the statement of facts or material collated during negotiations may be used. I believe that any limit on the use to which information can be put should be kept to a minimum. Where an organisation does not comply with the terms of an agreement and is prosecuted, the statement of facts should be admissible against the organisation in future criminal proceedings for those offences. Finally, we have provided that a DPA may be entered into for conduct that has taken place before the commencement of this legislation, provided that criminal proceedings have not been commenced. This transitional provision will enable the benefits of DPAs to be realised as soon as possible.

I am conscious that I have spent a little time setting out the key elements of the deferred prosecution agreements, but it is important that there is a common understanding of how this new procedure will operate. Once implemented, the Government will keep this area of the law under review and formal post-legislative scrutiny will also take place in April 2018. I firmly believe that deferred prosecution agreements can make an important contribution in the fight against economic crime, bring more wrongdoers to justice and provide redress to the victims of such crimes. I commend these amendments to the Committee and beg to move.

[Lord Beecham]

My Lords, the Minister may not have noticed but during his speech the clock stopped after seven minutes so we had “007” on the clock. Having seen “Skyfall” the other night, I do not quite see the noble Lord as Daniel Craig mark II, but I am sure that he would do very well in that capacity.

[Lord McNally]

The noble Lord should see me in my swimming trunks before making that judgment.

[Lord Beecham]

I am too young to appreciate that offer.

It is ironic that notice of the Government’s intention to proceed with amendments to the Bill to legislate for deferred prosecution agreements should itself have been deferred until barely a week before today’s debate. It is quite unacceptable for material to be made available—indeed, its very existence to be revealed—only five days ago. I appreciate that this is by way of a Second Reading debate but Ministers must have formed the intention of bringing these measures forward months ago, presumably at a time when the expected debate on community sentencing had been scheduled to take place very soon after the end of the Summer Recess. I assume that the date was altered to accommodate the change of Lord Chancellor. It is reasonable to seek to accommodate Ministers in such circumstances but entirely unreasonable to make so little effort to accommodate Members of your Lordships’ House. For the record, can we know whether the new Lord Chancellor is to be in charge of this part of the Bill or whether Mr Clarke will be responsible for it in the time he now has to spare without an attachment to a portfolio? Can the Minister also say when the Explanatory Notes for this part of the Bill will be available to Members of your Lordships’ House?

It is not as if the Government’s proposals are unimportant, breaking new ground as they do, in our system of justice. I acknowledge immediately that consideration was given to and work undertaken around the issues raised in this belated addition to the Bill by the previous Government. Indeed, it might be argued that they are, in a way, an extension of the conditional cautions introduced by the previous Government, although, as my noble and learned friend Lord Goldsmith—who might claim paternity of that policy—has pointed out to me, they are at the other end of the offending scale.

We are, after all, apparently seeking to emulate the American system, under which what are often described as aggressive prosecutors drive hard bargains with offending corporations resulting in huge payments—five times as much, or sometimes much more than that, according to the impact statement, as is likely to be yielded under what we are now contemplating.

I confess to an initial reluctance to embrace a situation in which, in the area of economic crime—for that, as the Minister has made clear, is the area to which the proposals are addressed—one class of defendants should have the opportunity of buying off a prosecution for a one-third discount or, to be more precise, an up to one-third discount, of the fine they might otherwise have to pay. The Committee will need to be convinced that such an approach is acceptable in all the circumstances, and the public will need to be convinced that we are not creating a privileged class of potential defendants without achieving a significant benefit, not only in cash terms but also in terms of corporate behaviour. Hugging a hoodie was never an attractive notion to many people. Hugging a bent bank or crooked company is even less likely to appeal.

Is not the reality that these proposals stem essentially from the failure of the Serious Fraud Office to tackle economic crime effectively? It brings few cases and, all too often, as in the recent Tchenguiz case, fails lamentably to prove them after devoting years to the task. That case evinced a warning from the High Court that the Serious Fraud Office did not have the,

“proper resources, both human and financial”,

to investigate it and, by implication, others like it.

The question arises as to whether Ministers believe that the SFO has the resources to do its job effectively, not least in the light of budget cuts already amounting to £7 million, or 19%, since 2009-10, and planned to fall by a further £3 million, or 7%, by 2015.

Noble Lords may be surprised to learn, as I was, that top salaries in the Serious Fraud Office are in the range of £70,000 to £80,000 per annum, roughly what an assistant solicitor in a City firm acting for corporate clients might expect to earn soon after qualifying.

Unsurprisingly, the SFO has tended to use civil recovery orders under the Proceeds of Crime Act, a process which has aroused the concern of the OECD, not least because such a procedure does not lead to a disclosure of the nature of the wrongdoing or the basis of the settlement. I appreciate that the Minister has made it clear that these proposals would, in the event of matters being concluded, lead to such a disclosure and also, presumably, the basis of the settlement. The whole scenario hitherto smacks of recent concerns about the manner in which Her Majesty’s Revenue and Customs have apparently settled claims on terms appearing too generous to some major companies.

Will the new proposals be better resourced than the present system under the SFO which is signally prone to failure, as it has proved? Will the relevant agencies have the,

“proper resources, both human and financial”

to emulate its American counterparts? Will the Government look again at the issue of vicarious liability for the dishonesty of corporate employees rather than relying on the present, if archaic, doctrine of the directing mind, under which there is no such liability on behalf of the corporation unless a director or senior manager is involved?

In their response to the consultation document the Government indicated that they would,

“limit the application of DPAs to economic crimes, but provide for the list of economic crimes for which a DPA is available to be amended”.

Will this be by regulation or primary legislation and, if the former, by the affirmative or negative procedure?

18:45

We also have a major concern about the proposals to delegate to the Director of Public Prosecutions and the Director of the Serious Fraud Office the production of a code of practice for prosecutors on these agreements. Given the novelty of the process and the degree to which it departs from current practice in relation to serious crimes, surely there should be parliamentary oversight of any such code.

There is also the question of the penalties, which the Government appear content to leave to the Sentencing Council. In ordinary circumstances that would have been quite acceptable, but these are not ordinary circumstances. I repeat: we are embarking on a radical departure from our present system. Public confidence is unlikely to be engendered for such a change unless the financial parameters are made clear. For that matter, they are also relevant to the question of incentivising use of the system. Firms would have to know that they are liable to very large fines unless they compromise, when the discount would apply.

At the very least, the proposals about the penalties should be the subject of parliamentary debate, especially in the early years of the new approach. I leave open the question about whether they should be introduced by regulation and procedure but, at the very least, they should be subject to public debate. It will be essential to convince the public that companies are not going to be let off lightly by these new processes.

There is much to ponder and debate today, on recommittal and Report. For the moment I have to say, on behalf of the Opposition, that judgment is reserved.

[Lord Marks of Henley-on-Thames]

My Lords, I welcome the proposals for deferred prosecution agreements in the proposed new schedule. They provide a comprehensive and workable code for a useful new procedure. The proposals are no worse for being an American import. Although I note the point of the noble Lord, Lord Beecham, that in America aggressive prosecutors may misuse such procedures, I do not believe the proposals in these amendments echo that danger.

These proposals are not dissimilar to procedures familiar in this jurisdiction over a number of years. Tax penalties, VAT penalties and customs penalties are examples of authorities not prosecuting when offences are committed but where the process of prosecution is replaced by the imposition of a penalty. Even the humble fixed penalty for motorists has its parallels.

The development these proposals introduce is a voluntary agreement to defer a prosecution where a company or a partnership is prepared to commit to payment of money to the prosecuting authority, to victims or to charity, to introduce compliance procedures and to co-operate in investigations.

The procedures are similar in many ways to the way in which the Environment Agency has operated over a number of years by enabling polluters to avoid prosecution for environmental offences by ensuring that offenders voluntarily clean up the pollution caused, pay any necessary compensation and introduce procedures in future to ensure compliance with the law. These arrangements save large sums of money, avoid the uncertainty of prosecution, ensure future compliance and extract compensation for victims and the prosecuting authorities where appropriate.

I do not believe that there are parallels between these proposals and hugging hoodies, as the noble Lord, Lord Beecham, suggests. They establish a way of achieving the results to be gained from a successful prosecution, sometimes in exceedingly complex and difficult cases, without the costs and uncertainties of getting those results.

Of course the criticism may be made that DPAs amount to something akin to plea bargaining. In one sense that criticism is justified. However, the provision at paragraph 5(4) of the proposed new schedule—that the amount of any financial penalty agreed between the prosecutor and P, the offender, must be broadly comparable to the fine that a court would have imposed on P on conviction for the alleged offence following a guilty plea—goes much of the way towards answering that criticism. The two-stage arrangement proposed in the schedule also adds transparency and protection of the public to the proposals.

I have two points for consideration which may suggest that at this stage the proposals do not go far enough. Paragraph 4 of the schedule provides that P, the party entering into an agreement with the prosecuting authority, may not be an individual. I am not entirely clear why the distinction between individuals and corporations or partnerships needs to be drawn. It seems to me at first blush that it is the nature of the offence that is important, not the nature of the offender. I would suggest that the common threads running through cases suitable for DPAs are, first, the willingness of the offender to admit to guilt; secondly, the willingness to pay a financial penalty; thirdly, and perhaps of paramount importance, the suitability of a financial penalty and compliance measures to the facts of the case and to the seriousness of the offence; fourthly, a willingness to co-operate in an investigation of how the offences happened so as to assist the prosecuting authority in understanding the offences and in taking measures to avoid repetition; and finally, a willingness to put compliance measures in place on the part of the offender to ensure that there is no repetition of the offences. I would suggest that these conditions can be as easily met in the case of an individual offender as in the case of a corporation or partnership, even though DPAs would of course be more commonly suitable for corporations or partnerships.

It has been suggested that a distinction can be drawn between individuals and organisations from the self-evident fact that a corporation cannot be imprisoned. I am not sure that that answers the point. If an offence warrants a sentence of imprisonment—this is an important answer to some of the points made by the noble Lord, Lord Beecham—the prosecuting authority will not agree to a DPA in the first place, and that is whether the sentence is warranted for an individual or for the officers of a company in their individual capacity. So DPAs cannot be used where a sentence of imprisonment ought to be imposed, if a sensible prosecuting authority is in place and goes before a judge seeking permission to make such an exceptional agreement.

[Lord Phillips of Sudbury]

I am most grateful to my noble friend. Can he tell the Committee where that provision is to be found in the proposed schedule?

[Lord Marks of Henley-on-Thames]

It can be inferred from the fact that there is a proposal that the prosecuting authority has to go to a judge at the preliminary hearing to persuade the judge that the case is suitable for a DPA. If a prison sentence ought to be imposed on the person “P”, that agreement would not be forthcoming. That, I suggest, would be the effect of the proposal, although it may be necessary to make it clear by amendment; I appreciate that.

My second point is that the offences covered in Part 2 are economic and financial, and only financial and economic offences may be added to the list by delegated legislation. I wonder whether the restriction, not as to the legislation but as to the offences, is entirely justified. Environmental offences, for instance, seem appropriate. There are other random examples of offences contrary to regulation that might be suitable, such as offences against fishing regulations regarding net mesh sizes and permitted catches. Those may be examples, and there are many more. There are other regulatory provisions where DPAs might be appropriate. Perhaps it may be as well to let us see how DPAs work with the offences listed in the schedule at this point and then look to amend the legislation in the future. Certainly as a member of your Lordships’ Select Committee on Delegated Powers and Regulatory Reform, I see the difficulty of adding large numbers of offences to the list by delegated legislation, as the noble Lord, Lord Beecham, pointed out. However, I suspect that our early suspicions of DPAs will wane in practice and that they may become tools of wider use and greater utility than is now envisaged.

[Lord Goldsmith]

My Lords, first I want to declare an interest. As my noble friend Lord Beecham said, I had something to do with an earlier consideration of similar problems when my party was in Government and I was in office, and I want to say something about that in a moment. I also declare that I am currently a practising lawyer and that I and my firm get involved in the sort of cases that this may be concerned with. I have seen how these systems work in the United States and I have thought about them quite hard. I want to make it clear that broadly speaking I am in favour of the proposal for deferred prosecution agreements. However, I have some questions that I will come to, and I understand very well the point made by my noble friend about the timing of the proposals being brought forward.

Before I turn to the substance of what I want to say, I am a little confused at the moment about the procedure that is being followed. This may be because unfortunately I was detained from coming to the House when noble Lords were considering the previous group of amendments. I came in at the tail end to hear something that I am not quite sure I understood, about matters being discussed again on a future occasion. But unless I have misunderstood, I notice that the noble Lord, Lord McNally, has moved government Amendment 155ZB, which provides for the introduction of a schedule relating to deferred prosecution agreements. Without, as it were, dissent, we seem at least to have got the concept of a schedule into the Bill. Whether that means that the noble Lord is going to move the schedule as a complete schedule, I am not sure, but if he does, that gives rise to questions about whether there will be any real opportunity to debate or amend its provisions. I want to ask some questions about the detail, so I would be grateful if the noble Lord could explain the situation.

[Lord McNally]

We are all in a form of something that is not quite unique territory. Because we have used this device, it may be that an eagle-eyed lawyer will spot a contradiction in process. What I will give as an absolute guarantee to the Committee, by whatever means we use to do it, is that this is intended as if it were a Second Reading debate. Any amendments that need to be made and any further consideration of the detail will be permitted when we come back to the Bill on 13 November. I hope that that gives the noble and learned Lord the reassurance he is seeking.

19:00

[Lord Goldsmith]

I am grateful for that. It makes sense because the questions I want to raise are very much in the nature of those put in a Second Reading debate. Let me explain first why I am broadly in favour of this approach. While I agree with a number of the points made by the noble Lord, Lord Marks of Henley-on-Thames, I think he missed the main point. The main point of DPAs is not so much to substitute a financial penalty or something of that kind for a conviction, it is to provide a mechanism to change behaviour. The critical point is to agree conditions which act as a carrot and a stick. If you go forward and you comply with conditions that change your behaviour, you will not find yourself being prosecuted and convicted. A classic example of this which is not in the field of economic crime—I want to come back to that point—would be disposals in relation to people who have been involved in drug offences. You want to find a way there of changing their behaviour in taking and dealing drugs. In some jurisdictions in the United States, that is done by having in effect a deferred prosecution agreement under which they agree some pretty tough conditions about how they deal with their drug problem, including treatment, regular testing and so forth. If they fail, they go back to court and are dealt with very heavily; if they succeed, it is very much to their benefit, and also of course to that of the public, that the problem is removed.

The idea of a deferred prosecution agreement, in my mind, is to change behaviour by having a carrot and a stick. Therefore, the conditions that the schedule provides may be entered into include conditions, for example, for future compliance—which is critical, it seems to me—by someone who is subject to a DPA of their business, because that is the way this is drafted at the moment. That is desirable. Indeed, I became of the view that something like this was necessary during the course of my time in office when I recognised that we did not have the ability under English law to say to somebody, “OK, you say you are contrite and that you are prepared to do all these things. That is very good and we will give you credit for it, but I am sorry—you are still going to be convicted. You will have a conviction, which means that when you come to take employment or apply for whatever it may be, you will have that against you”. I thought it was a tool that we ought to have to be able to avoid that. It plainly does not apply in every case—let me make that very clear—and many offences require very significant and severe penalties to be imposed. I am not a softie when it comes to any of that at all. However, I came to the view that we ought to have something of that sort.

We did not have it, although my noble friend Lord Beecham is right that we ended up, I think, with the Criminal Justice Act 2003. I may have got the Act wrong, as we did pass one or two Criminal Justice Acts in our time—noble Lords will forgive me if I cannot distinguish them all from each other with absolute precision. We provided for a conditional caution, which is different from a fixed penalty, as it was a caution with conditions attached; for example, to go on an anger management course, a drug or more likely drink treatment course. A prosecution did not take place at that time, but if the person did not comply with the conditions, they could be prosecuted and sentenced for the original offence. That idea is already in our system, although, as my noble friend has said, quoting my words, at the other end of the scale of offending. In principle, it is a good idea. We commissioned a review on fraud with the Chief Secretary to the Treasury in the belief that we did not deal adequately with economic crime in this country on a number of grounds. It came up with some recommendations, including something along these lines.

I will turn, with that degree of general Second Reading-type support, to the some of my questions. The first is the one raised by the noble Lord, Lord Marks, about whether it is right that this should be limited to companies or business organisations. There is a lot to be said for having this tool available in relation to individuals as well, and I have already given a couple of examples where that could be useful. I recognise that, as it stands, the proposal gives rise to the concern that this is just for business to buy its way out of prosecution. Actually, if this was a broader power, which was only applied appropriately, that concern would start to disappear. There are circumstances in which I believe individuals and the public would benefit from such a power. If one is limiting it to corporations and businesses, it is quite difficult to fully justify that. If this were restricted to offences such as those under Section 7 of the Bribery Act—where I think this will be used quite a lot—that do not involve what we would call a “guilty mind” on behalf of a corporation, in that it is an offence that it is guilty of despite a lack of intention to commit the offence, it might be justifiable. However, the offences that are included potentially include offences where the corporation or partnership would only be guilty if there was a guilty mind. I am not convinced and would like to hear more from the Minister as to why it is thought to be right.

Along with the noble Lord, Lord Marks of Henley-on-Thames, I am not convinced that it is right to limit the availability of this power to economic crime. He mentioned a number of areas. I cannot comment on the fishing side, as I am just a town boy and have never understood that side of things, but he is right about environmental issues, which are terribly serious, where sometimes you want to impose some form of regime that means that the business will operate in a much better way in the future, although you may have some penalty attached at that time as well. Health and safety is another area. I do not want to minimise health and safety offences, which are very important, but that is another area where businesses, and the public, might benefit from this sort of review. I invite the noble Lord to say a little more about why it is limited in this way. Is it because it is thought this might get it through this House and Parliament or are there other, more principled, reasons? It gives rise as it stands to the objections that my noble friend has raised.

I will raise some more specific points on paragraph 5. It is noted that a DPA, in the statement of facts, may include “admissions made” by the person who is subject to the order. This is unlike the conditional caution regime, which requires admission for it to operate. I assume that this is a deliberate decision by the Government so that DPAs can be imposed on people who are not admitting the offence at all. I do not object to that, as it may be quite a good way of dealing with certain situations where the prosecution are not sure that they can prove the case but someone is prepared to pay a penalty, pay compensation and change their behaviour for the future. However, I ask the noble Lord whether that is the intention behind this. Paragraph 5(3)—

[Lord Phillips of Sudbury]

Does the noble and learned Lord not think that if he pursues that line, it will enable the party that has entered into the DPA to get away even more with what they have done? I think I am right in saying that in the United States, with a plea bargain, they at least have to admit that there has been some wrongdoing. If they do not even have to admit that, the public relations impact of one of these DPAs will be even less that it will be anyhow.

[Lord Goldsmith]

The noble Lord may be right about that. I am asking the Minister a question about the thinking. One has to recognise that there are cases where the prosecution cannot actually prove the case, or it would be enormously expensive to do so, with uncertain prospects. I can see that there may be circumstances where getting a regime that for example secures compliance for the future may be worth while. However, that is only my speculation as to why “may” is there rather than “must”, which I would have expected based on the conditional cautions.

Paragraph 5(3)(e) talks about the implementation of a “compliance programme” and I would like the noble Lord to say something about what sort of compliance programmes the Government have in mind, and whether they would include, for example, the putting in place of monitors, and whether that is something that can be sufficiently dealt with by the words here or whether it needs some specific language. As regards paragraph 6 of the code on DPAs, is it intended, as my noble friend Lord Beecham asked, for the code to be placed before Parliament—as is the code for the crown prosecutors, if my recollection serves me right? I can see that Parliament would have an interest in that.

Paragraphs 7 and 8 would require the prosecutor to apply at different stages for declarations in certain terms that entering into a DPA is likely to be,

“ in the interests of justice”—

and that the proposed terms of the DPA—

“are fair and reasonable and proportionate”.

Is it necessary to ask a court to do that? Plainly, the court must be asked to approve the solution. However, I am not sure whether one should also ask the court to make declarations as to these matters. I would like to hear from the Minister as to the thinking behind that. As I understand it, under paragraph 8, the final hearing must be in public, whereas the preliminary application would be in private. I would be grateful for confirmation as to that.

Paragraph 11 deals with discontinuance of the DPA. I am probably missing it but I looked for a clear statement that if there is a finding of non-compliance by the court, that is likely to result in criminal proceedings being instituted. Finally, I, too, would welcome hearing what the proposals are in relation to addition to this schedule and the procedure that will be adopted.

I apologise for that quite long list. This is an important provision. It is a bit difficult to see how we are going to deal with it in a second Committee stage. I am looking forward with great interest to seeing whether the Minister is actually moving the whole of the schedule now so it goes into the Bill and we then apply to amend it, but I accept his assurances that if that is what happens, we will be able to apply to amend it hereafter.

[Lord Woolf]

My Lords, I think that this is a very positive step and could be very valuable in the administration of justice. We should be aware that in the States there has been a risk of unattractive practices developing in this field, but as long as we have the appropriate code and safeguards, that should be able to be overcome.

I listened with care to the comments made by the noble Lord, Lord Marks of Henley-on-Thames, on limiting this to corporate bodies and not extending it to individuals. I suggest that there is substance in his concern, which the noble and learned Lord, Lord Goldsmith, feels may have force. The danger of not allowing individuals also to be dealt with is not the risk of them getting away with it, but of preventing an agreement being reached when it should be reached and when the very extensive powers indicated in paragraph 5(3) would be of great benefit to the public. I draw particular attention to compensating victims, donating money to charity and disgorging any profits made by P. The reality is that behind every company there are individuals. If the individuals are not going to be covered by the agreements, the agreements will be very much less attractive in practice to the corporate sector than they would if individuals could be included. Perhaps we should look at the question of whether it would not be better to enable the matter to be dealt with once and for all, for both officers of a company and the company itself.

19:15

[Baroness Hamwee]

My Lords, I admit that I have not read these provisions in whole more than once, but when I first read them I, too, thought that this smacked of plea bargaining. My reaction was—and perhaps I should be forced to face up to this—rather more xenophobic than I would really care to admit. Discussing the provisions at this early—perhaps too early—stage has led me to cross out an awful lot of what I might have mused aloud about. We almost need a seminar on this rather than a Second Reading.

My instinctive reaction was, as the noble Lord, Lord Beecham, has expressed, against being able to negotiate and pay one’s way out of trouble and conversely being tempted to acknowledge guilt for the wrong reasons. The foreword to the Government’s response to the consultation says that this will be,

“a more just and effective system”.

I am not sure what “just” means in this context. If it means anything, I think it means something about encouraging a change in behaviour, as the noble and learned Lord has said. Is it effective—as distinct from efficient? I can see that it is efficient but I wonder about effective. If it is effective, it will be effective in deterrence, reparation and so on, and that is my analysis of “just”. But perhaps none of this will matter when we get down to the detail.

The fact sheet that the Ministry of Justice has issued to accompany this says:

“A criminal prosecution will continue to be the most appropriate course of action where an organisation’s alleged wrongdoing is such that prosecution is the only real option”.

I am not sure where I see that in the provisions, except by implication.

I think my noble friend said that the code would be available to Parliament. I understand that such a code may not normally be appropriate for legislation of any type, or maybe not even for public consultation, but paragraph 6(1) says that the code will give guidance on,

“the general principles to be applied in determining whether a DPA is likely to be appropriate in a given case”.

That seems to be such a significant part of the code that it really ought to be in legislation.

Finally, on the requirements to which the noble and learned Lord, Lord Woolf, has referred, I will be interested to know, during the recommitment of these clauses, when it will be thought appropriate that a donation is made to charity and how one reaches that conclusion. There is a lot for us to disaggregate, analyse and understand in this schedule.

[Lord Phillips of Sudbury]

My Lords, I did not expect to be able to be here this afternoon. In many ways, I wish I was not, because I am afraid that I take a rather different view from anyone who has spoken so far—except the noble Lord, Lord Beecham. I sympathise with my noble friend the Minister because this is a really difficult area to address in terms of a change in the law, because plainly the present situation is utterly hopeless.

Following the staggering series of events of the past five years, with the collapse of the financial centres of the world, in particular the City, which has required £80 billion of taxpayers’ money to shore up a system that has, let us be frank, been deeply corrupted—a great deal of the failure of the markets was not through lack of prudential wisdom but through market manipulation and criminality of various kinds—not one single person has been prosecuted and put behind bars. I accept what my noble friend the Minister said in opening, that we need to do something, but what we need to do is not to compromise the basic principle of equality before the law—because that is what we are doing—it is to beef up, hugely, the prosecuting authorities in this country. We have played boys’ games with these matters until now.

I had a meeting with the previous head of the Serious Fraud Office and I think I am right in saying that there are a puny number of highly qualified lawyers there to deal with what are the most difficult forms of prosecution on earth. He told me that his entire team would be outmatched by the lawyers and accountants hired by a bank to face a would-be prosecution that the SFO was considering.

It is not right for us to contemplate this fundamentally unacceptable measure until and unless we have summoned the necessary political will to give the prosecuting authorities a chance of doing their job because, hitherto, we have not. I for one would be willing to see a tenfold or twentyfold increase in the necessary personnel, with the necessary increase in their remuneration. The noble Lord, Lord Beecham, was correct that the disparity in remuneration between the gentlemen and ladies in the Serious Fraud Office and the private sector is crazy. I would confront those difficulties and pay for their remedy. Were there effective prosecutions in this country, the fines that resulted from prosecutions of very large institutions for very large frauds would, I suspect, pay for the increase in the prosecuting resources many times over.

We have to be honest with ourselves and with the country over this. This is plea-bargaining. This is breaking the rule of equality before the law because it places huge, powerful, sophisticated companies engaged in premeditated and long-term fraud in a different position from that of a man or woman had up before the local magistrates for shoplifting. That is another form of economic crime. We are driving a coach and horses through the ancient and proper traditions of this country by giving privilege—that is what it boils down to—to the already rich and powerful. My noble friend said in opening that they are not “getting off lightly”. Well, I have to disabuse him: they are getting off extraordinarily lightly. To start with, there is no naming and shaming. When these matters are brought before the court for approval, there will not be facts there given that will hold up for public contempt the main architects of whatever fraud we are talking about. Least of all will there be prosecution and conviction, which will then of course strike very hard at the reception of that by the individuals who are prosecuted and convicted. Perhaps I may ask my noble friend this important question. Will this legislation prevent individual directors and executives of companies entering into a DPA being prosecuted afterwards for their part in the frauds concerned? If they are not susceptible to subsequent prosecution, that is a further failure of the proposed new regime.

This is a more important departure from the status quo than some may realise. This is pure realpolitik of a sort that it is not right for us to contemplate until— I repeat—we have tried giving prosecuting authorities the resources to deal with the offences being committed. As I have said, we are a million miles from that.

[Lord McNally]

My Lords, again, this has been an extremely useful exercise. I am glad that we have done it in a way which has allowed this Second Reading-style debate. My noble friend Lord Phillips said that he wished that he was not here. I sometimes share his ambitions in that regard.

My noble friend demanded 10 times the budget and 20 times the personnel for the Serious Fraud Office, with an increase in their remuneration. I say with no sense of arrogance that that is the difference between making speeches up there and making them down here. It would be very easy to say, “Oh, well, we’re going spend all this money”, but the reality is—

[Lord Phillips of Sudbury]

My noble friend does not do my argument justice. I was saying that if the Serious Fraud Office did that, and if prosecutions were brought and convictions obtained, the fines that resulted would cover those costs. A couple of years ago in New York, KMPG was fined $450 million on a plea bargain. That would pay for a lot of people.

[Lord McNally]

Yes, I did hear the tail end of my noble friend’s argument where he said that it would all be self-financing, which is always another dangerous thing to say in government.

But, yes, I agree. As the noble and learned Lord, Lord Goldsmith, indicated, it has been the ambition of successive Governments to nail down the problem of white collar crime. If they have not done so, it has not been for want of trying. This is obviously a toe-dipping exercise. The noble Baroness, Lady Hamwee, said that we really needed a seminar. I had the benefit of a seminar at an early stage of the process, because Sir Edward Garnier, when he was Solicitor-General, was the first to try to convince me of the usefulness of deferred prosecution agreements. They are, I freely confess, a very pragmatic approach to the problem. It is not as pure an approach as that for which the noble Lord, Lord Phillips, very powerfully argued, but it seems to me to offer real results. As has been pointed by a number of speakers, it is not entirely new to English law in that there are some parallels with environmental legislation and the 2003 legislation to which the noble and learned Lord, Lord Goldsmith, referred.

This is a test to see what kind of results we can get from this approach, with an opportunity perhaps to extend it later. I heard what was said by the noble and learned Lords, Lord Woolf and Lord Goldsmith, and the noble Lords, Lord Beecham and Lord Marks, about individuals as well as companies. We decided not to take it that far. The noble and learned Lord, Lord Woolf, said that we should look again and I am sure that an appropriate amendment will be tabled for the second part of this Committee stage that allows me to address the Government’s concerns about taking it more widely at that point. At the moment, the Government’s view is that this is a prudent move in the direction of seeing whether deferred prosecution agreements can work effectively, and if they do, they would then, as the noble Lord, Lord Marks, said, start to find their way into our system more easily. I fully agree with the noble and learned Lord, Lord Goldsmith, that it would not just be a matter of patching up previous behaviour but of making sure that there was, as part of any agreement, monitored good behaviour for the future.

19:30

These questions are testing the system. Of course, some of the questions asked would be tried out by the system working. The noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Phillips, asked about the transparency of the system. Public scrutiny of the DPA process is very important to ensure that its operation is transparent and that justice is done and seen to be done. A DPA will be approved in open court and published by the prosecutor. This will make sure that the details of the organisation’s alleged wrongdoings and the sanctions provided for in the agreement will always be in the public domain.

On the creation of DPAs and the role of the Serious Fraud Office, there will always be cases where the public interest requires a prosecution. The Serious Fraud Office remains committed to prosecuting corporate economic crime. The introduction of DPAs will provide prosecutors with an extra tool and allow them to focus more of their resources on those cases where prosecution is the appropriate form. So this is not avoiding going after organisations with prosecution. The Prime Minister has made it clear that if the SFO needs more resources they will be provided. This will be kept under review. David Green CB QC was appointed director of the SFO in April. He has set out a new system and structure further to enhance quality control and a number of key appointments have since been made to take these changes forward.

On the question of organisations and not individuals, the DPAs have been developed to provide prosecutors with an additional tool to overcome some of the current difficulties associated with prosecuting organisations for economic crime. The same challenge does not exist in the prosecution of individuals for economic crime and a range of punishments and sanctions is available to deal with wrongdoing by individuals. I am quite sure from what has been said that on 13 November amendments will be tabled so that we can probe this issue further.

The noble and learned Lord, Lord Goldsmith, asked whether DPAs would be open to organisations that do not admit guilt. Yes, the statement of fact may include an admission made by the organisation but this will not be a requirement in every case. On compliance, monitors may be required as a term alongside improvements to the anti-corruption compliance programmes and training of staff. All terms negotiated between parties are to be considered on a case-by-case basis. The noble Lord, Lord Beecham, asked whether the Lord Chancellor will be responsible for this legislation. Yes, he will.

A number of noble Lords made points that invite the thought that we are on to something that goes far wider than this. My noble friend Lord Marks mentioned environmental legislation and the noble and learned Lord, Lord Goldsmith, mentioned health and safety. That gives some idea of the potential of what we are talking about. I understand the point made by the noble Lord, Lord Beecham, that coming to deals like this sometimes sticks in the craw. As I said, the pragmatist in me is attracted by the idea that we could stop the bad behaviour, get proper compensation for it and monitor good behaviour for the future. That would not be a bad win in this hard and cruel world. As I said, when Sir Edward Garnier first raised this with me many months ago, against lots of expensive trench warfare ending in failure it had the attraction of getting some real, positive wins.

On the question of the noble Lord, Lord Beecham, the Explanatory Notes will be provided before 13 November. The dinner break is upon us but I may have missed other questions—I got quite a forensic examination from the noble and learned Lord, Lord Goldsmith. I will go through my notes and write to the noble and learned Lord, and make that available to the rest of the Committee. That would be a useful document for 13 November.

On the point made by my noble friend Lady Hamwee, I really do not think that this is the slippery slope to plea bargaining and the other dark practices that she fears. The point made by the noble and learned Lord, Lord Woolf, was that if we get the code and safeguards right, we will be on safe ground. Having said that, I am immensely grateful to noble Lords for their contributions. I will study Hansard carefully and try to make sure that the House is well prepared for 13 November. Perhaps I may make one last point. Individual directors of companies will not be immune from prosecution if their company is part of a plea bargain. We will return to this on 13 November. However, if we could go through the process again, I am now asked—

[Lord Beecham]

I am not asking the Minister to reply now because noble Lords are waiting for the next debate, but I remind him that I raised two questions about Parliament’s role in relation to the Bill; first, in relation to the code which the Director of Public Prosecutions and the director of the Serious Fraud Office will produce and, secondly, in relation to penalties which the Sentencing Council will propose. We are concerned about that area, as will be other Members of your Lordships’ House. A reply about that would be helpful before we get to the next stage.

[Lord McNally]

I am grateful to the noble Lord. I could try and busk it now but it would be far more sensible to write to him and share that with the Committee. To make us entirely in order for our debate on 13 November, when amendments will be acceptable and we will be back on course as a normal Committee day, I must now move Amendment 155EZC.

Amendment 155EZC agreed.

Schedule 16 agreed.

Clause 29 agreed.

Clause 30 : Transitional, transitory or saving provision

Amendment 155EZD

Moved by

[Lord McNally]

155EZD: Clause 30, page 31, line 18, at end insert “, or
(b) where Part 4 of Schedule (Dealing non-custodially with offenders) and section (Dealing non-custodially with offenders) so far as relating to that Part of that Schedule are brought into force in relation to a specified area for a specified period, in connection with those provisions ceasing to be in force at the end of that period or at the end of that period as continued under section 31(4B).”

Amendment 155EZD agreed.

Clause 30, as amended, agreed.

Clause 31 : Short title, commencement and extent

Amendment 155EZE

Moved by

[Lord McNally]

155EZE: Clause 31, page 31, line 23, at end insert “and, in the case of Part 4 of Schedule (Dealing non-custodially with offenders) and section (Dealing non-custodially with offenders) so far as relating to that Part of that Schedule, for different areas.”

Amendment 155EZE agreed.

Amendment 155EA not moved.

Amendment 155EB

Moved by

[Lord McNally]

155EB: Clause 31, page 31, line 28, at end insert—
“(4A) An order which brings the monitoring provisions into force only in relation to a specified area may provide that they are to be in force in relation to that area for a specified period; and in this subsection and subsection (4B) “the monitoring provisions” means Part 4 of Schedule (Dealing non-custodially with offenders), and section (Dealing non-custodially with offenders) so far as relating to that Part of that Schedule.
(4B) An order containing the provision permitted by subsection (4A) may be amended by a subsequent order under subsection (2) so as to continue the monitoring provisions in force in relation to the area concerned for a further period.”

Amendment 155EB agreed.

Amendment 155F not moved.

Amendments 155G to 160

Moved by

[Lord McNally]

155G: Clause 31, page 31, line 33, leave out “Sections 22 and 23, and” and insert “The following extend to England and Wales only—
(a) section 22;(b) paragraph 28 of Schedule (Dealing non-custodially with offenders) and section (Dealing non-custodially with offenders) so far as relating to that paragraph, but only so far as relating to disclosure or use of information by a person appointed under section 2(1) of the Courts Act 2003 or provided under a contract made by virtue of section 2(4) of that Act;(c) ”

156: Clause 31, page 31, line 35, after “1920” insert “, in sections 8(4) and 33(3) of the Maintenance Orders (Reciprocal Enforcement) Act 1972”

156A: Clause 31, page 31, line 36, leave out “extend to England and Wales only” and insert—
“(d) paragraphs 1 to 31 and 39 of Schedule (Deferred prosecution agreements), and section (Deferred prosecution agreements) so far as relating to those paragraphs.”

157: Clause 31, page 31, line 36, at end insert—
“(7A) The amendments made by this Act in the Industrial and Provident Societies Act 1965 extend to England and Wales, and Scotland, only.”

158: Clause 31, page 31, line 37, leave out “subsection (7)” and insert “subsections (7) and (7A)”

159: Clause 31, page 31, line 39, at end insert—
“(8A) Subsection (8) does not apply to the amendments made by this Act in the Government Annuities Act 1929 or the Friendly Societies Act 1974 (which amendments, accordingly, extend to England and Wales, Scotland and Northern Ireland only).”

160: Clause 31, page 32, line 1, at end insert—
“( ) Her Majesty may by Order in Council provide for provisions of Part 7 of Schedule (Dealing non-custodially with offenders) (amendments of Armed Forces Act 2006) to extend, with or without modifications, to—
(a) any of the Channel Islands,(b) the Isle of Man, or(c) any of the British overseas territories.( ) The power conferred by section 338 of the Criminal Justice Act 2003 (power to extend to Channel Islands and Isle of Man) is exercisable in relation to any amendment of that Act that is made by or under this Act.”

Amendments 155G to 160 agreed.

Clause 31, as amended, agreed.

In the Title:

Amendment 161

Moved by

[Lord McNally]

161: In the Title, line 4, after “tribunals;” insert “to make provision about deferred prosecution agreements;”

Amendment 161 agreed.

Title, as amended, agreed.

House resumed.

Bill reported with amendments.

Mental Health (Approval Functions) Bill

Tuesday 30th October 2012 Lords Chamber

First Reading

19:42

The Bill was brought from the Commons, read a first time and ordered to be printed.

Arrangement of Business

Tuesday 30th October 2012 Lords Chamber

Announcement

19:43

[Earl Attlee]

My Lords, because the Question for Short Debate, tabled by the noble Lord, Lord McConnell, will now be taken as last business, the time limit for the debate becomes 90 minutes, rather than 60. Speeches should therefore be limited to nine minutes, except for the speech of the noble Lord, Lord McConnell, and that of the Minister, which remain limited to 10 minutes and 12 minutes respectively.

Building Stability Overseas Strategy

Tuesday 30th October 2012 Lords Chamber

Question for Short Debate

19:43

Tabled by

[Lord McConnell of Glenscorrodale]

To ask Her Majesty’s Government whether they will review the implementation and impact of the Building Stability Overseas Strategy.

[Lord McConnell of Glenscorrodale]

My Lords, when I submitted the Question for debate in May, I had hoped that we might debate it near to the first anniversary of the Building Stability Overseas Strategy during the summer months. That was not to be, but in fact I am particularly pleased that we are debating the strategy and this Question this week, partly because this week, the Prime Minister will co-chair the high-level panel on the development framework that will replace the millennium development goals after 2015, but also because it gives an opportunity to the new ministerial team, following the changes in the Government in September, to respond, given the excellent work done by their predecessors. I hope that they continue the Government’s commitment to that agenda. I very much welcome this opportunity and look forward to hearing the Government’s response.

Since the creation of the Department for International Development in 1997, the issues of conflict and security in development have gradually moved up the agenda. For some time, there has been growing recognition of the importance of conflict and security to the international attempt to support developing countries and the people who live there. In the past, it has perhaps been too far down the list of international priorities; today, it must become centre stage.

For a decade or so now, we saw the previous Labour Government lead the international debate on this issue, taking a lead at home by starting important work to integrate defence, development and diplomacy and improve the way that the United Kingdom supported countries in post-conflict reconstruction and intervened in the international institutions to improve their effectiveness.

Then, with the election of a new Government in 2010, we had, first, a very firm commitment to 30% of our development aid going to support conflict-affected and fragile states and then the publication of the Building Stability Overseas Strategy in 2011. That strategy has been widely welcomed. I welcomed it at the time and still believe that it sets out an excellent strategy for the Government to follow. It sets out a clear purpose and also defines stabilisation in terms of the institutions and conditions required to manage tensions and take forward development in individual countries, recognising that each is different. I pay tribute to the work of the previous Secretary of State for International Development for his personal passion in support of that cause.

However, we are yet to achieve, here in the UK or anywhere else, the important integration of that work, bringing together development, diplomacy and defence, into the DNA of the departments, governments and institutions at home and abroad. There is much still to be done. That is important work. There may be concerns about the securitisation of aid in places such as Yemen, but I believe that there is a moral and pragmatic case to link the international aid and development that we support more closely to conflict-affected and fragile states. There are 1 billion people worldwide living in fragile states. Not one conflict-affected fragile state in the world is likely to meet even one of the millennium development goals by 2015. That speaks for itself. We are twice as likely to find undernourished children in conflict-affected and fragile states as we are elsewhere in the developing world. We are three times as likely to find families who cannot send their children to school; twice as likely to see children dying before the age of five; and twice as likely to see people living without clean water, in conflict-affected and fragile states.

This may be the most difficult development challenge of our age, but I believe that peace-building and post-conflict reconstruction is the greatest and most important development challenge of our time.

Those challenges have a wider impact, beyond the basic human needs. They have an impact on the economies of the countries affected and the wider region. It has been estimated that it takes 30 years to recover GDP growth from the cost of a civil war and 20 years to recover the trade position of the country where a major episode of violence has broken out. Not only the individual countries are affected; those countries in the neighbourhood are affected by such outbreaks of violence. Their trade and growth have been estimated to have been affected dramatically as well. So, for economic reasons, for important humanitarian and development reasons and for reasons of our own security, the priority that we give to stabilisation and to the Building Stability Overseas Strategy remains important for all parties—for the Government, for the Opposition and for our colleagues outside of Parliament.

Both the Building Stability Overseas strategy and the World Bank’s world development report, published in the same year, have laid out a firm road map for how to tackle stabilisation and help with conflict prevention and post-conflict reconstruction. We need to find ways to help to create the institutions that can underpin justice and stability. We need to help with the demobilisation and reintegration of those who have been involved in conflict. We need to help to find the jobs that give people an alternative to violence—an alternative way of life that is more positive and more of a contribution for their families and communities. We need to support regional solutions, which the Government have, in a very welcome way, been trying to secure, somewhat successfully, over the past two years in Somalia.

In all these, we need to listen to local voices and work with local organisations because their solutions will be more sustainable. We need to ensure that women are centre stage because in many cases women are the real peace-builders. We need to ensure that upstream prevention, real conflict prevention, is given a priority, not just because it saves money in the long term since it avoids the conflict that affects lives, kills many and leaves many homeless and destitute.

I want to ask the Government a number of questions about the strategy and its implementation. How is the early action facility progressing? Is the watch list of states that we worry about developing into conflict producing results? Have the Government been able to move forward on the independent assessment of their conflict-prevention programmes? Have the Government made progress on the prevention partnerships with the new emerging powers like Brazil, which I thought were a very good idea and were mentioned in the original strategy? Are the Government implementing the important recommendations from the Independent Commission for Aid Impact’s review of the Conflict Pool published earlier this year?

I want to finish on what is an important agenda for the United Kingdom—that is, not just to improve our own work at home or to ensure that we are more effective at our bilateral relationships, financial and otherwise, throughout the developing world, particularly in those states that are affected by conflict. The UK also has a key role to play internationally in leading this debate in the international institutions. We can use our role on the United Nations Security Council and in the World Bank, the European Union and the Commonwealth—a unique role that gives us a voice in all these major international institutions—to push this agenda forward.

In particular, we can use the role that the Prime Minister now has, as co-chair of the high-level panel set up by the United Nations, to look at the development framework that will exist following the deadline for the millennium development goals in 2015. That panel meets this week in London, and I believe that the Prime Minister should take the commitment of the UK into those discussions. While it may be understandable that the MDGs did not include any reference to justice, jobs, security or conflict because of the basic human needs that they addressed back when they were set just over a decade ago, in the post-2015 development framework we need to see justice in the institutions that will underpin justice and therefore peace not just referenced but agreed. We also need to see a commitment to economic development and jobs to give young people a different way of life from the conflict that perhaps they have experienced in the past. If the Prime Minister takes that agenda into those discussions in the high-level panel, he will be doing great service not just to the people of the UK but to those who suffer the most throughout the world, the most vulnerable and poorest people in our world—those who live in conflict-affected and fragile states.

19:55

[Lord Patten]

My Lords, I do not want to do the noble Lord, Lord McConnell, any damage in the eyes of his party, but I have to say that in his tip-top speech I could not find a word that I did not agree with. He has directed us to look at the Building Stability Overseas policy. The policy, of course, was launched during the Arab spring, which has turned into something of an Arab winter all too quickly for all too many in the Arab lands. Take the plight, for example—and we could give many—of minority religious groups. There is not much of a spring for the Copts in Egypt, for Zoroastrians hiding out in Iran and Iraq, for minority Muslims where there is a majority of Sunnis, for the last remaining Chaldean Catholics in Mosul or for evangelicals wherever they have managed to get a toe-hold. These are exactly the sort of minorities that the noble Lord cares about and has directed our attention to tonight. They are the sorts of minorities that the strategy tries to help in the fragile conflict-affected states that he has so effectively referred to.

I support the aims of the strategy, launched as it was when there were high hopes for an Arab spring, but, alas, those hopes were anchored in what has turned out to be quicksand. That makes the tripartite ministerial efforts of the Foreign and Commonwealth Office, the Ministry of Defence and DfID all the more important, 18 months or so on from when the policy was launched. The kind of stuff that BSOS, to use the shorthand, tries to do—for example, giving early warnings of looming trouble in troubled states, from the Balkans and the Caucasus via those Arab lands to Somalia, Pakistan and back—is indeed very important.

This is all conducted within our foreign aid contributions. I had better be brave and out myself: as a Tory Back-Bencher, I am actually in favour of the present level of foreign aid contributions that the Government are making. I am told that there are not all that many of us. Ah, I see that my noble friend Lord Bates has come out as well; we are all coming out on the Tory Benches tonight. That makes two of us, but I am told that there are not all that many of us among the Daily Mail-reading classes in either another place or this place. Having so outed myself, however, that gives me the opportunity and the right to say to my noble friend Lord Ahmad how profoundly unhappy I am with some of the allocation of that aid—to an India, for example, which, although I welcome Indian money coming into this country, is busy buying up the UK’s steel and motor car sectors while at the same time chunks of taxpayers’ funds are flowing back to it. Those funds would be much better spent in meeting the ends of the Building Stability Overseas Strategy.

That said, as the strategy develops with the limited funds that it has, it must develop quite a way beyond just becoming an exemplar of joined-up, good cross-Whitehall work. It would be all the more effective if it were to give a greater role to charities, voluntary organisations and NGOs—call them what one will—in policy formulation as the next positive step. The Foreign Secretary, my right honourable friend Mr Hague, says that the Government do not have all the answers in this context. He is right; we all know that. The strategy itself says that it values partnership but, if you have a quick look at section 10, you will see that while there are some words saying what good things partnerships are, it is a bit of an empty vessel in explaining just how partnerships with voluntary organisations can help to develop policy in a specific way.

That is not to say that I think that we should have a romantic view of all non-governmental organisations, charities and the voluntary sector. There are some rather strange ones around with very bad habits—at the lowest level, those who unleash those chuggers on the streets. There are certainly some charities, voluntary organisations and NGOs that spend disproportionate sums on publicity campaigns that I think could be used in the local context, as the noble Lord, Lord McConnell, has pointed out, and there are others that have very high cost-to-income ratios in what they do, for all the world like the high cost-to-income ratios in some bad investment banks in the past.

The best NGOs, however, are very good indeed and we should listen to what they have to say. The best work very much with the warp and weft of local communities, and it is the local that the noble Lord, Lord McConnell, directed our attention to in his powerful speech. The best have very tight cost-to-income ratios and are working all the time to grind them down. The best do a lot of thinking and have a very hard policy edge, carefully thought through, rather than spending the money that they raise on expensive media campaigns.

Most importantly and significantly of all, the best NGOs very bravely put themselves in the front line in harm’s way. We have seen this happen with the staff of charities, voluntary organisations and NGOs losing their lives in Iraq, Pakistan and, notably recently, Afghanistan. Although they are rightly cautious and try to protect their women and men who are very much on the front line, I heard only this week that charities are now pulling people out from the front line in Kenya in advance of the general elections there which are thought to be about to foment no end of violence and mayhem.

In this context, NGOs are one of us in terms of helping because many, if not the majority, of state, peace and civil society building activities are already being outsourced to non-governmental organisations working locally. If that is the case, a bit more formal involvement for them in policy formulation would be a good thing. As we know, just because you put input into policies, it does not have to be taken into account, but I think we would benefit greatly from firmer involvement by non-governmental organisations in developing in a very constructive way the next stages of this excellent government approach on building security overseas as it matures to the next stage.

20:03

[Lord Chidgey]

My Lords, in reviewing the impact of the Building Security Overseas Strategy, I think it is worth taking a step back to reconfirm the aims and objectives of the strategy, but first I join the noble Lord, Lord McConnell, in playing tribute to the drive and leadership of Andrew Mitchell, the former Secretary of State for DfID, which I was able to witness first hand as a member of the wider ministerial team that he created.

The BSOS fundamentally sets out the Government’s vision for co-ordinating their development, defence and diplomatic capabilities behind a progressive vision of stability that is,

“built on the consent of the population, is resilient and flexible in the face of shocks, and can evolve over time as the context changes”.

The noble Lord, Lord McConnell, touched on the costs to a nation or community of conflict or civil war. The importance of the avoidance of conflict cannot be overestimated. It may take 20 or 30 years to recover a country’s GDP, but the impact of large numbers, thousands of people, who have been deliberately maimed can take at least a generation, if not two, to recover from with all the costs of caring for people who are not only unable to contribute to the economy but who are possibly unable to fend for themselves. This is a huge issue that should not be overlooked.

The BSOS aims to underpin the Government’s work on conflict prevention and in conflict-affected and fragile states. It is designed with several strategies underpinning the national security strategy, including counterterrorism and defence engagement. For BSOS implementation to be effective, DfID, FCO and MoD officials in Whitehall and in in-country posts need to understand and endorse the progressive definition of stability outlined in the BSOS. It is characterised, as Saferworld describes it, as,

“political systems which are representative and legitimate, capable of managing conflict and change peacefully, and societies in which human rights and the rule of law are respected, basic needs met, security established and opportunities for social and economic development are open to all”.

The Prime Minister, as co-chair of the high-level panel, has a golden opportunity to press these concepts in his meetings this week in London. I had the opportunity to be a parliamentary representative as the fourth high-level forum on aid effectiveness progressed until it finally came to a conclusion in Busan, and I witnessed the global agreement that was unanimously struck on aid effectiveness. All sections of the aid family—politicians, parliamentarians, civil society, charities and so on—came to that agreement. It is a fundamental shift in the dynamics of aid effectiveness and aid delivery, and here is an opportunity, with our Prime Minister as one of three, I think, co-chairs, to drive this forward.

The three mutually supporting pillars underpinning the BSOS—early warning, rapid crisis prevention and response and investing in upstream prevention—present the challenge of uniting three departments. The Foreign Office, the Ministry of Defence and DfID have their own policy objectives and organisational and working cultures behind the single vision set out in the BSOS. Although the departments acknowledge the need for a BSOS and herald it as key to their strategies, is not clear whether they have succeeded in establishing a joined-up government approach. It is not clear whether the necessary capacity and funding to carry out the actions described in the main pillars have been provided. The conflict prevention pool was designed to make funding available quickly to undertake work in deteriorating and insecure situations around the world where our national interests are at stake.

Unfortunately, the strategy has yet to be formulated at operational level or put into practice. The three pillars are being addressed separately by the departments. The MoD is seeking to form a team that will use all available assets to gather intelligence on the possible factors that will lead to conflict then, in conjunction with the FCO and DfID, it will tailor its actions to counter any threats to stability and the UK national interest. Foreign Office diplomacy will be used to adhere to the three pillars of the BSOS, while DfID will use development aid and the combined resources of the stabilisation unit to try to counter the triggers of instability ahead of actual conflict, deal with post-conflict threats and stop a slide back into instability and war.

My understanding is that, to a degree, these concepts are being implemented in Libya at present, excluding, of course, the upstream aspects because they are well done. In this regard, will the Minister tell your Lordships’ House in the context of BSOS what progress is being made with capacity building the Libyan security sector? What progress is being made with assistance in the development and management of the Libyan armed forces? What progress is being made with the delivery of capacity to provide border security in order to assist the Libyan Government gain the monopoly of control of the use of force within their country? What progress is being made in working with other agencies to develop a democratically accountable security sector with particular focus on the building of a viable and effective Libyan Ministry of Defence? What progress is being made with meeting the short-term objective of helping the Libyan authorities clear and secure unexploded ordnance? All these tasks are designed to provide impact in areas where the UK could have a strategic effect and assist the Libyan authorities to understand their security and defence problems and start to develop their own solutions. A UK defence advisory team of six was launched in April 2012, but at present is funded only until 2013. It appears that in Libya we are currently good at part of pillar two of BSOS—rapid crisis response—but have yet to get our act together on the others. We have neither the capacity nor the funding for upstream early warning or prevention.

The BSOS provides the overarching strategic framework for the Conflict Pool on which the Independent Commission for Aid Impact recently carried out a quite thorough review. It noted the lack of detail on how the integration of defence, diplomacy and development will be incorporated into the differing policy objectives and organisational cultures of the three departments. Will the Government elaborate on how the elements of this strategic framework will ensure that departments put their shared objectives outlined in the BSOS ahead of individual departmental objectives which may lead them in different directions?

20:09

[The Earl of Sandwich]

My Lords, the noble Lord, Lord McConnell, has become one of our eloquent and passionate defenders of overseas aid. I pay tribute to him and thank him for putting down this debate. The BSOS, the Government’s new cross-cutting stability strategy, is quite difficult to follow at first sight and, as such, it may be a great success. I showed it to a friend who said, “Well, that would be quite enough to confuse the enemy. How could anyone fight against that?”. Designed by three departments, it is inevitably—as I think the noble Lord, Lord Chidgey, implied—a hotchpotch of policies largely for the benefit of those involved and not for ordinary mortals.

However, on closer inspection, the strategy became more familiar. I recognised ingredients from previous Administrations, such as the Global Opportunities Fund in new clothing, the early warning systems and the Conflict Pool, which I am glad to say now is amplified by DfID’s increased budget, of which I too am a supporter. I realised that these great concepts are of course no more than vehicles for projects to advance our intelligence, security, diplomacy and development. I agree with the noble Lord, Lord McConnell, that they must be properly and regularly reviewed. We need to be reassured that this experiment in joined-up aid and security is working effectively. I agree with the noble Lord, Lord Chidgey, that the same could be said of Libya, of which we have never really had a proper account.

The crisis in Mali is a possible test case and here the EU, led by our noble friend Lady Ashton, has already taken a lead. Last week, the EU Council statement ranked the same four elements of policy in reverse order, with development placed first. How refreshing it is that the EU should see things that way. Perhaps it is because they are answerable only to their member states and do not have to report to whole electorates who are complaining about recession and budget cuts.

As a UK citizen you can be quite depressed at the challenges presented in Mali. Here is a top-drawer al-Qaeda security problem in the middle of nowhere, with very little strategic or diplomatic advantage for this country, coming on top of generations of poverty and neglect. But I am glad to see that we are taking Mali and the whole Sahel seriously because, while it is not on the scale of Syria or Sudan—God forbid—it already is an urgent problem for all of us.

I admire the Tuareg people and have spent time in centres like Gao and Timbuktu, and in small towns in Chad and Niger. I deplore that they are now in the grip of fanatics trading in narcotics who do not hesitate to use violence, intimidation and hand and foot amputation even against the young and vulnerable. Last week I attended a meeting on Mali with people very concerned about this and I was amazed at how much interest there is, which perhaps arises from NGOs drawn to the desert by the terrible Sahel famine 40 years ago. I agree with the noble Lord, Lord Patten, about the way in which NGOs have become very competent in bringing aid to local communities.

It seems strange that when I first joined Christian Aid in 1974, a trans-Saharan food convoy of Land Rovers was setting off from Salisbury Cathedral. The idea that the poorest communities already knew how to organise and feed themselves, given the right conditions, was still foreign in those days. This year, the Anti-Slavery International award went to Ibrahim ag Idbaltanat, a determined human rights campaigner of slave descent, who has dedicated his life to ending slavery in Mali.

Alongside our support for security in west Africa, we need to identify more people like Ibrahim who can change people’s lives from within. We need to train health workers, agriculturalists, craftsmen, artists, intellectuals and experts who know how to respond to the demands of drought and climate change in the dry lands. These people are the means to a democratic Mali. They far outnumber the deranged Gaddafi elements and it will not require armies of intelligence officers to find them. I hope the Minister can confirm that since the BSOS was originally a response to the Arab spring, this is an offshoot of that Arab spring. I hope that we are using it to good effect in Mali to back up what the African Union and ECOWAS are already planning—not in terms of military force in our case but to gain the trust of the best elements of democratic government and civil society in Mali.

In a Written Statement on 17 July, the Foreign Secretary, whom the noble Lord, Lord Patten, already mentioned, said:

“We recognise that Government do not have all the answers”—

this is a refreshing statement—

“and therefore we are seeking deliberately wider views beyond Whitehall to provide challenge and to ensure we access, reflect on and assimilate latest thinking”.

He goes on to talk about the positive reaction,

“from NGOs and academics specialising in conflict”.—[Official Report, Commons, 17/7/12; col. 128WS.]

There is always a risk with tripartite programmes of this kind that they are not thematic—they turn in too many directions and ultimately are owned by no one. But I read from the Statement that the Government are leaning positively towards civil society in particular, which I welcome in the knowledge that in conflict-affected states civil society may be, if not the only, the most effective and accountable show in town.

Perhaps I may remind the Minister that Mali has a strong artistic and musical tradition, with a famous national ballet and many singers with an international reputation. January is the time of year when musicians used to travel up the Niger river after the rains to perform in towns in the north. Are this Government doing enough to encourage the arts in Mali, Egypt, South Sudan and other countries as a weapon against conflict and a means of uniting society?

I conclude with a summary from Saferworld, which states:

“Ultimately, identifying and addressing the root causes of conflict is about improving the lives of people in communities affected by conflict and fragility. Investing in upstream conflict prevention is also in the interests of securing a more peaceful international environment”.

20:17

[Lord Bates]

My Lords, it is a privilege to take part in this debate and follow the noble Earl, Lord Sandwich, with whose comments I am in total agreement—particularly his point about the importance of us drawing away and listening to a wider pool. There is a tendency within the foreign policy and defence community to have groupthink. The same people look at the same websites, read the same materials and journals, talk to the same people—and they all do it in a closed way, so it is not surprising that they often come to the wrong conclusion. There are some great examples. The noble Lord, Lord Patten, talked about opening the process up to civil society groups. There are great examples. The National Intelligence Council is one which our own stabilisation unit should look closely at; it draws on analytical resources in academic and civil society not only in the United States but also, crucially, from countries around the world that might take a different and contrary view to their own. It is regarded as all part of testing its own assumptions, which needs to be done much more.

I, too, pay tribute to the noble Lord, Lord McConnell, for the excellent way in which he introduced this debate, and for the great timing of this debate. It comes in a significant week, with the co-chairmanship of the high-level panel taking place in this city. I congratulate the noble Lord himself for joining up his presentation, since not only did we have the debate on overseas aid last week but this debate this week—and as an avid reader of “Lords of the Blog”, I managed to catch the gist and thrust of his concerns this morning. Like the noble Lord, Lord Patten, I agree absolutely with every word he said and support very much the questions which he raised. All that I say will simply be in endorsing and emphasising that point.

I also welcome my noble friend Lord Ahmad to the Front Bench. It is the first time that I have spoken in a debate with him on the Front Bench. It is great to see him there, and I wish him well in his role.

I want to congratulate Her Majesty's Government on what they have done. In this whole area, which we do not talk about often enough in looking at the detail, they have joined up defence, development and diplomacy—something that most people will probably wonder why we did not do decades and decades ago. But it has been brought together now, and there is a coherent strategy. More importantly, the Building Security Overseas Strategy dovetails in with the new national security strategy. The National Security Council, the stabilisation unit and the Conflict Pool are there, working in a tripartite group. The fact that we get more cross-departmental and less silo operations makes the chances of us making catastrophic mistakes in our judgments or in our sight of conflicts around the world—and trying to prevent them—that much less likely to occur.

I could not put it better than my right honourable friend the Prime Minister when he said in introducing the national security strategy that,

“we must get better at treating the causes of instability, not just dealing with the consequences. When we fail to prevent conflict and have to resort to military intervention, the costs are always far higher”.—[Official Report, Commons, 19/10/10; col. 798.]

In many ways, that statement by the Prime Minister sets the tone that runs through all the strategies and agenda that we are talking about. We are talking about moving away from treating poverty, as it were; it is a symptom of conflict, violence and lawlessness. If we want to be in conflict prevention, we must get behind tackling conflict. When you have peaceful, stable societies, the rule of law and education can happen, rights can be respected and upheld, and trade and commerce can be built. So the entire focus on what we should be about is tackling conflict.

Here I come very much to a point about the millennium development goals that the noble Lord, Lord McConnell, made in his excellent introduction to this debate. There are eight goals, most of which we are familiar with; there are 21 targets and 60 indicators. In none of those eight, 21 or 60 is there any mention of the word “conflict”, or any aim to reduce it. People will say that it is implicit in all, but let us make it explicit that we want to reduce the number of conflicts that occur around the world. People will say that it is very difficult to define a conflict, but that is not true. The World Bank has a definition of a conflict; it defines it by a certain number of civilian deaths. So there is a model within the UN system. Why cannot we integrate it and work and target our resources on it?

In closing, I come briefly to the stabilisation unit and ask the Minister to comment when he comes to wind up—or perhaps, given that I am springing this on him, he may need to come back to this in writing for me, as well as for other noble Lords who have taken part in the debate. It would be good to see a detailed response to the excellent report, Evaluation of the Inter-Departmental Conflict Pool, by the Independent Commission for Aid Impact. It was a very thorough piece of analysis which contained some alarming points, particularly findings 2.2 and 2.6 on page 5. Finding 2.6 states:

“Decision-making is by consensus and tends to be slow and painstaking”.

However, conflicts are often fast moving and require decisions to be taken quickly. I would be grateful to my noble friend if he would respond to that point.

Given that we are talking about conflict prevention, investing in resources to prevent conflict and trying to get ahead of the curve rather than dealing with the consequences of conflict, I hope that my noble friend will say something about what Her Majesty’s Government are doing through the Conflict Pool and all these initiatives in areas such as Iran, which many of us see as being the next most likely area of conflict in which this country may be involved. It would be good to know what is being done to reduce tensions and the likelihood of conflict there.

I again thank my noble friend for giving these matters his consideration.

20:25

[Lord Hunt of Chesterton]

My Lords, I thank my noble friend Lord McConnell for this important debate about joined-up approaches in government to dealing with conflicts and related humanitarian and environmental disasters. The report shows how UK departments deal well with crises. I saw that myself as chief executive of the Met Office in the 1990s, which was then part of the Ministry of Defence. Generally, there is a sort of crisis gene in Whitehall which does very well when there is a war or conflict but does not do so well as regards tackling long-term systemic problems. This was first pointed out in about 1850.

I noted the pertinent remark of the noble Lord, Lord Bates, that policy requires inputs from many fields. As a scientist, I would certainly add science to that. There is almost no mention of science or engineering in the report, which is extraordinary. Scientists not only in this country but also in developing countries desperately need encouragement and support. They will provide the relevant information in the long term. In fact, I am busy working to help networks in those countries.

In 1993 the world was involved in the consequences of the first Gulf War. When I read my Sunday papers, as I did then, I noted that large numbers of refugees were stuck in snowstorms on the Iraq/Iran border. These snowstorms had been well predicted by the Met Office computer so I asked my colleagues in the Met Office why we did not tell people about them. They said that there was absolutely no international protocol in place whereby a centre in the UK could communicate these warnings to the meteorological and humanitarian services in the relevant countries. This is still the problem. There is still tremendous difficulty in communicating information, particularly as regards floods.

This week we have seen a tropical cyclone strike the United States. For 40 years there have been excellent methods of communicating information about such events but it does not apply to many areas. There was a world conference in Yokohama in 1994. At that time the Chinese objected to the idea of transmitting warnings from one country to another. However, I am glad to say that great progress was made at the Hyogo conference in 2004 and there will be a further meeting in 2014.

Furthermore, there are now, of course, global weather forecasts on the television and communities receive some warning of extreme weather, floods and the spread of disease. Government and NGO expert advice is also needed. Nevertheless, the communication between national and regional authorities still remains quite inadequate. Researchers around the world should use the new information and methods that are becoming available. I am afraid that nationalism is evident even in science. For example, extraordinary new developments being used in Russia to detect earthquakes are not used in other countries as they are suspicious of the methods being used by Russia.

DfID was very concerned about the floods in Mozambique which occurred in about 2000. However, at that time it did not pursue particularly energetically the fact that the data which forecast the floods were not exchanged between Mozambique and Zambia. This position has now changed. I am very pleased to see that DfID supports scientific and forecasting work at the Met Office. For example, DfID took the warnings of the recent year-on-year droughts in east Africa very seriously. Those warnings were helpful as regards providing food and aid.

I hope that the Minister will say to what extent research into conflicts, particularly conflicts driven by extraordinary natural phenomena, is being considered. There is no discussion in the document about the use of conflict research, which has a long history. Indeed, many types of conflict have been predicted by academics working in this area.

The United Nations specialised agencies have a very important role in co-ordinating the work contributed by national bodies. There are United Nations bodies concerned with health, meteorology, the environment, hydrology, bodies such as UNESCO and so on. The Minister should emphasise that when winding up.

One of the features of these agencies is that they provide services following conflicts. One should mention the work of Habitat—one organisation that provides important information and support in the rehabilitation of housing and cities, following disasters or conflicts. I do not know whether noble Lords saw the pictures this week of the devastation of a whole area destroyed in ethnic conflict in the Muslim part of the coastal city of Myanmar. Satellite pictures showed only too clearly what had happened. This area will have to be rebuilt, and the kind of help provided through the United Nations system will be important.

This raises the issue that I hope Ministers can consider, as to how to improve the collection and distribution of data, which is often haphazard. That is particularly important in vulnerable countries and across the international organisations to enable societies to have the data to develop sustainably and peacefully, and deal with disasters. I have been campaigning on this issue since I was at the Met Office in 1995. I am afraid that I have met civil servants who have asked, “What have data got to do with policy”. I am sure that there are no civil servants like that in this Chamber, but it is a terrible fact that there is therefore absolutely no interest in providing even £10,000 or £20,000 to enable a country to co-ordinate its data. That is considered to be of zero interest. However, if I ask for £1 million for a particular project, I may get it. That may happen, all the data will be lost and the money will have no permanent effect. However, if I asked for the supply of an ongoing data service, the methodology of which the Americans have now developed, it would cost little money but the value would be extraordinary. So I hope that the Minister and his advisers can understand this.

Even in the UK, negotiating data arrangements between research councils, as I have done, is difficult. In Ghana, we carried out a study looking at all the agencies in that country, all of which are collecting data separately. They all agreed that if there was one centre that listed the data, they would agree to list their data. That would then enable all sorts of organisations to improve the information.

Data have become more important in government since the Berners-Lee report. He featured at the opening of the Olympic Games. I hope that his great role will be celebrated, that data will be taken seriously and that centres will be set up in all the countries we are considering, as well as internationally, so that people can know where the data are to encourage people to take further information and data on, for example, rain, to enable countries not only to develop sustainably but to have the information to respond to extreme events.

20:33

[Baroness Nicholson of Winterbourne]

My Lords, the Written Ministerial Statement of 17 July this year on building stability overseas was very welcome. I am delighted that the noble Lord, Lord McConnell, has secured the opportunity to debate this important topic.

The Government’s emphasis on the importance of fragile and conflict-affected states, and the building stability overseas strategy, is exactly the right direction in which UK policy should be set. I congratulate the Government on it, for no low-income country that has been experiencing repeated violence, weak governance and instability has yet achieved a single millennium development goal. The roughly 1.5 billion people in fragile and conflict-affected states are more than twice as likely to be undernourished, more than three times as likely to be unable to send their children to school, twice as likely to see their children die before the age of five, and twice as likely to lack clean water as those in other developing countries.

We learn in the Government’s Written Ministerial Statement of their,

“approach to selected priority countries”,

of their,

“highest conflict and stability priorities”,—[Official Report, Commons, 17/7/12; col. 126WS.]

and of their focus on the Arab partnership, Somalia, Pakistan, the Balkans, the Caucasus and Cyprus. I am aware of DfID’s 28 priority countries and, within those, the 21 countries that it considers fragile and conflict-affected. There are glimpses in government documents of the Foreign and Commonwealth Office and the National Security Council also having priority countries. Pakistan is often mentioned in this regard but there is no other list that DfID provides. Which, then, are the Government’s selected priority countries? Are they the same as the DfID priorities or are they different? Perhaps more importantly, could our teams on the ground tell you whether they were in a selected priority country? I suspect that that would be unlikely in most cases.

Secondly, the Statement indicates that proposed conflict resources allocations through the Conflict Pool for 2012-13 to 2014-15 will be available shortly. Considering that allocations for 2011-12 to 2014-15 were published on 5 April 2011, can the Minister provide us with an update on when the latest allocations will be published and why it has taken so long to do so? Early publishing of resource allocations for each year would be in line with the recommendations of the Independent Commission for Aid Impact on reducing volatility in the Conflict Pool’s budget and how it is implemented, and it would be in line the National Audit Office’s recommendation to,

“ensure future funding decisions are made sufficiently in advance of the start of the new financial year to maintain continuity of activity and governance of funds”.

Thirdly, in the light of the amber/red assessment that the Independent Commission for Aid Impact gave of the Conflict Pool, and in particular its call to highlight the Conflict Pool’s comparative advantage and its view on how to far better integrate its tri-departmental structure, can the Minister provide noble Lords with an update on the current status and thinking of the Government towards their Conflict Pool strategy, which is due out at the end of this year?

Fourthly, in the light of the Government’s only partial success in achieving coherence in conflict and stability, set out by the Independent Commission for Aid Impact, I would have wished to see a far more ambitious review of the Stabilisation Unit than is set out in the Statement, which at best seems somewhat superficial. As I recall the discussions around its birth, the Stabilisation Unit was going to be the focus of our work in difficult and fragile environments so as to overcome conflict between departments. That has not been the case and it is disappointing, because I thoroughly believe that there is a vital role for the Stabilisation Unit in doing just that and in leading our response in such situations.

Fifthly, the Statement highlighted that three-quarters of DfID’s priority countries are fragile and conflict-affected states and that its target is to direct 30% of overseas development assistance to such countries by 2014-15. Yet, despite this target, DfID does not have a definition for fragile and conflict-affected states and instead relies upon three external lists on governance capability, fragility and conflict to calculate whether it considers a country fragile. These lists are the World Bank’s Country Policy and Institutional Assessment, the Failed States Index from the Fund for Peace, and the Uppsala conflict database. However, the breadth of DfID’s calculation is not mirrored by either the OECD or the World Bank, which from their own lists consider respectively only 18 and 12 of DfID’s priority countries as fragile and conflict-affected. This does lend itself to a conclusion that an exceptionally broad understanding of fragile and conflict-affected states is being used in order that the Government can hit their 30% target and that it can logically be argued that fragile and conflict-affected states present a standard development challenge. However, the fact that no such state will meet any millennium development goal demonstrates that such an understanding is flawed and that such states make up a special category of concern. I wonder whether the Minister might agree that having DfID use a much tighter definition and understanding of such states, in order that the Government’s focus and expenditure on such states can truly go where it is most needed, would be a welcome development.

I am a firm supporter of this Government’s serious concerns and deep focus on how to advise and support Governments and peoples in fragile and conflicted states, since it is the people there whose lives exist in a continuing, complex emergency. I thank the Government for their focus but I draw attention to the points I have made in a spirit of mutual support and agreement that we can and must do better.

20:41

[Baroness Royall of Blaisdon]

My Lords, I thank my noble friend Lord McConnell for tabling this excellent debate, for his powerful speech and for enabling all noble Lords in the Chamber to express their views, support the strategy and, of course, to question the Government on a number of issues, including the overlooked matter of data collection, which I found fascinating. I also extend a very warm welcome to the noble Lord, Lord Ahmad of Wimbledon, to the Dispatch Box. I look forward to many discussions with him over the Dispatch Box and outside the Chamber.

Violent conflict impedes and undermines development. As my noble friend said, it is no coincidence that no fragile and conflicted state has achieved a single MDG to date. The costs to the countries involved and to the international community are enormous. Lives are lost and livelihoods destroyed, infrastructure collapses and social and economic development is undermined. We have heard the statistics. There are 1.5 billion people living in countries affected by organised violence, either currently or recovering from political violence, fragility or high levels of homicide. People living in countries currently affected by violence are twice as likely to be undernourished, as the noble Baroness said, and 50% more likely to be impoverished. According to the World Bank, eight out of 10 of the most aid-dependent countries in 2008 were affected by conflict or fragility.

The costs of conflict are higher than the resources we invest in development. Conflicts divert valuable resources from development and countries in conflict, or in fear of conflict, spend more on their armies and defence mechanisms than on health, education or jobs creation. Stability is crucial to conflict prevention. Ninety per cent of civil wars in the 21st century occurred in countries that had already had a civil war in the previous 30 years. From this evening’s debate, it is clear that we all agree that investment in development now is crucial to prevent violent conflicts in future. The Building Stability Overseas Strategy, with its focus on early warning, rapid crisis prevention and response and investment in upstream prevention, is a welcome initiative. The aim of preventing instability and conflict by tackling the underlying drivers of instability is one we share. Indeed Labour, in government, set up the Stabilisation Unit. Co-ordination is key and we welcome efforts to bring coherence across the MoD, FCO and DfID and to integrate the work that they do.

I should like to highlight the importance of diplomatic engagement. The strategy discusses a number of ways in which to tackle instability and prevent conflict. Supporting local economies and growth, including through foreign direct investment, is of course crucial, and the Foreign Office is rightly placing great emphasis on this, but sometimes I feel that the balance has swung too far away from diplomacy. In addition, as the strategy says:

“The chances of success are greatest when the international community gets behind a political settlement that lays the foundations for tackling the causes of conflict in a country”.

In this, the United Nations has a key role to play and we must continue to engage with it as a vital actor.

I would also mention the importance of co-ordination and collaboration. As my noble friend Lady Kinnock noted in a past debate, the OECD previously reported that there is generally a lack of co-ordination, or even contact, between those working on stabilisation. I am pleased that in a recent statement on the strategy, the Secretary of State for Foreign and Commonwealth Affairs highlighted the need to work with others. Indeed, we must ensure that we engage meaningfully with our partners. This includes, as so many noble Lords have said, NGOs, think tanks and private actors, who have considerable local knowledge and expertise in this area and on whose experience we draw. It also includes our regional and international partners, such as the EU. The EU is a vital player in this field, providing more than half the world’s development aid and I welcome the emphasis in the strategy on the need to engage with the EU and build on the work that it does. The noble Earl, Lord Sandwich, referred us to the example of Mali and I, too, pay tribute to the work of my noble friend Lady Ashton in this area.

Finally, and perhaps most importantly in my view, we must give greater importance to the plight of women in conflict situations and to the role that women play in peacemaking and peacebuilding. We have all heard the words of Major-General Patrick Cammaert, former commander of UN peacekeeping forces in the eastern Congo, who said that,

“it is now more dangerous to be a woman than a soldier in modern wars”.

Women bear the brunt of modern conflict. UN Women estimates that 90% of current war casualties are civilians, the majority of whom are women and children. Rape and sexual violence are still used as a systematic weapon of war—for example, in Syria—and war crimes remain, for the most part, unprosecuted. Human Rights Watch reports that Syrian Government forces and militias are sexually abusing girls as young as 12. Post conflict, women still suffer the most. The situation of women and girls in Afghanistan is a case in point. I have spoken with courageous women Afghan MPs about this and it was recently highlighted in a report by the International Development Select Committee on Afghanistan, which stated that Afghan women’s status is among the worst in the world, with 87% of women experiencing some form of domestic abuse during their lifetime, and that women who participate in public life do so at significant risk to their safety. It urged DfID to do more to improve the lives of Afghan women. Women have fears of violent reprisal from the Taliban. I am sure that we would all send our best wishes to the extraordinary young Pakistani girl, Malala Yousafzai, who is now in Queen Elizabeth Hospital in Birmingham, having been brutally attacked by the Taliban for being a feisty, courageous young woman who was prepared to express her views.

While in Afghanistan some of the legal protections are there in the form of a constitution that guarantees equality and a law on the elimination of violence against women, the reality is one of gross discrimination, domestic violence and illegal, forced marriages for which the perpetrators are rarely prosecuted. Women regularly go to prison for having sex outside marriage, running away or other “moral crimes”. What more can the Government do to support these women who are fighting this awful fight? We must tackle the abhorrent levels of violence still experienced by women in conflict situations and the devastation that conflicts create. We must also ensure that women have a greater role to play in peacebuilding and recovery. They are often the peacebuilders and could do so much more. But women’s participation in conflict resolution processes remains far too low. Women should and must be part of the decision-making processes and they must be at the centre of our development work.

In 2000, the UN Security Council passed the landmark resolution 1325 on women and peace and security to call on the United Nations and member states to increase the participation of women in decision-making and peace processes, to ensure the protection of women and girls, and to institute gender perspectives and training in peacekeeping. The UK has developed a national action plan to implement it and I am pleased that the Government intend for it to be reviewed annually and for progress to be reported to Parliament. I should be grateful for an assurance from the Minister that we will continue to work towards the implementation of UNSCR 1325 across the world and ensure that women play a much greater role in peacebuilding strategies. We cannot afford the costs of violent conflict. It is crucial that we focus efforts now on building peace and stability for the future.

20:50

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have welcomed me to the Dispatch Box. It is a great honour to speak in this debate because I feel very strongly and passionately about this issue. This passion has been shown in the comments and speeches we have heard and is reflected in the experience and deep wisdom possessed within your Lordships’ House on this extremely important issue. Like other noble Lords, I am deeply thankful to the noble Lord, Lord McConnell, for initiating the debate and I am grateful to all noble Lords who have participated. I pay tribute, in particular, to the personal commitment of the noble Lord, Lord McConnell, in this field. I know he is engaged very much in parts of Africa and I wish him well in his endeavours in his new foundation. It is important that we take responsibility and it is right that the United Kingdom should lead in this field.

We have made good progress in implementing the Building Stability Overseas Strategy since its publication in July 2011 and noble Lords will have seen the summary of progress set out in the recent ministerial Statement issued in July of this year.

The National Security Council periodically reviews wider implementation of the Government’s strategic defence and security review, including work on building stability overseas. Noble Lords may wish to note that the Government will issue their next annual update by the end of November this year.

Noble Lords will recall that the Government launched the Building Stability Overseas Strategy during the tumult of the Arab spring, as my noble friend Lord Patten noted. I agree with his sentiment that we cannot afford the Arab spring turning into an Arab winter and it is important that we take direct leadership and responsibility in these areas. I hope that the comments I will be making will assure noble Lords of the Government’s commitment in this field.

The UK approach brings together our development programmes, diplomatic network and defence and intelligence assets in an integrated way. Many a time the Government are criticised for their lack of joined-up thinking. In this field the bringing-together of the FCO, the Ministry of Defence and DfID illustrates how departments can work together not only for the good of the country but for the good of the world. For example, the Defence Engagement Strategy will help to ensure that defence assets contribute to a wide range of Her Majesty’s Government’s objectives, including, as several noble Lords have mentioned, conflict prevention.

There are positive stories in what the Government have done and, indeed, I pay tribute to the previous Government for their efforts in this area. The experiences of Ghana, which I visited recently, Mozambique, Nepal and Sierra Leone show that those countries can put conflict behind them and embark on a more stable path. The Government remain committed to helping these countries stay on that stable path.

In Ghana, for example, two decades of sustained economic growth, five elections, political stability and relatively strong institutions have led to significant poverty reduction. Indeed, I was amused when I was in Ghana and saw people adhering to traffic signals. That may seem a small matter but when one considers the logistics involved in getting from one place to another in Accra it assists inward investment.

The DfID programme will continue to focus on helping Ghana to tackle inequality and especially, as many noble Lords have mentioned, on the need to help in the education of women and girls.

The noble Lord, Lord Hunt, mentioned issues of data. I take that fully on board, as does the department, and I shall return to that issue in a moment or two.

Reference was made to conflict assistance. I can report that DfID is on track to direct 30% of its official development assistance to fragile and conflict-affected states by 2014-15.

Reference was made by my noble friends Lord Chidgey and Lord Bates to early warning. Prevention is better than cure in all fields and that is certainly applicable here. Senior officials from across government meet regularly to systematically review the Government’s approach in selected countries.

We have also undertaken an internal review of the Government’s stabilisation unit. The review concluded that there continues to be a clear need for the stabilisation unit and it will remain an important tool in helping to integrate the Government’s approach to conflict and to help build more stable states.

As part of the strategic defence and security review, we have also increased the level of overall resourcing for conflict prevention in the tri-departmental Conflict Pool, a point mentioned by several noble Lords. The National Audit Office and the Independent Commission for Aid Impact have reviewed the Conflict Pool over recent months and both have offered some timely and helpful insights. The ICAI report, referred to by my noble friend Lord Bates, made a number of recommendations, many of which have already been addressed as part of our work to better align the Conflict Pool with the Building Stability Overseas Strategy, and the three departments concerned are all implementing these.

In the time available I will seek to answer some of the specific questions raised by noble Lords, but if it runs out—the seeds of time are catching up fast—I shall write to those noble Lords whose points I do not cover. First and foremost, I shall take in turn the series of questions raised by the noble Lord, Lord McConnell. He asked about the Early Action Funding Facility. It is already up and running and is supporting a range of initiatives in Somalia, Niger, Syria and Libya. He asked whether the internal watch list of fragile countries had made a difference. It has helped to focus senior-level attention on those countries where the risks of conflict are particularly high and where the UK has significant interests at stake. He also asked about the independent assessment of conflict prevention work. I have already mentioned the ICAI review of the Conflict Pool as a given example. However, we continue to work with our partners on a methodology covering conflict prevention more broadly, which has wider applications to other donor countries. He asked about building capacity in regional institutions and made strongly the point that regional solutions work better. I agree with that sentiment totally. We have held discussions on the Building Stability Overseas Strategy with a range of emerging and established partners across the world, including South Africa, Brazil, China, South Korea, India and Japan.

Through the Conflict Pool we are strengthening the African Union’s peace and security architectural activities. Our support includes a financing agreement to assist the AU’s peace and security department as well. Finally, the noble Lord talked about the role of women in peace-building, and indeed the noble Baroness, Lady Royall, also mentioned it. Women have a key role to play, and of course the noble Baroness mentioned the issue of Malala Yousafzai. I totally align myself with the comments made by the noble Baroness, and would repeat that the Government are fully committed to ensuring better education for women across the world, and Pakistan is no exception. We join in with the applause for the resilience of this young lady, but let us not forget that she is just one of many. We need to continue to be a strong voice to ensure the effective education and development of women across the world, particularly in Afghanistan and Pakistan.

My noble friend Lord Chidgey referenced Libya and talked about cross-government working. We continue to work on this and my noble friend may have seen the national security adviser’s review of central co-ordination and the lessons learnt from the Libya crisis. The crisis itself predated the publication of the strategy by a few months. The national security adviser concluded that NSC structures were effective in delivering a well co-ordinated UK contribution, but of course we continue to watch the situation in Libya very carefully, as we do other parts of north-east Africa and the Middle East.

Mention was made by the noble Earl, Lord Sandwich, of the Sahel region and of Mali in particular. We are deeply concerned about the current situation in Mali, particularly where Islamist groups have taken advantage of the recent political instability. However, on a more general theme, my noble friend Lord Patten made a point about religious freedoms. Let us be absolutely clear: religious freedoms, freedom of speech and expression to allow someone to follow their faith is an important part of our strategy. I am reminded that when my right honourable friend the Prime Minister was in Indonesia, a country that is progressive and showing itself to be a beacon to many people that democracy and Islam are compatible, he demonstrated through his words that religious freedoms, be they for Christians or for Muslim minorities, are a key part of a particular country’s standing.

My noble friend Lord Bates mentioned the ICAI report and talked about the need for further rapid support in emerging crises. He also raised specifically the issue of Iran. All channels, including those of diplomacy through the back door, should always be maintained in all conflict areas so as to ensure effective resolution. The noble Lord, Lord Hunt, talked about scientific research. Perhaps I may dwell briefly on the example of Pakistan. Of course, many will know that had Pakistan recognised the achievements of her only Nobel laureate, Dr Abdus Salam, science would have played a much more structured and constructive role in the development of that country, but we continue to work with Pakistan as a key partner.

I am mindful of the time so will move forward. My noble friend Lord Patten raised issues about the roles of NGOs. As my right honourable friend the Foreign Secretary has pointed out, we recognise that we do not have all the answers. It takes a lot for a Government to admit that, but we do not and debates such as this certainly assist. We continue actively to seek views from outside the Government to ensure input from challenging and fresh perspectives. I am therefore delighted to welcome noble Lords to participate in an event that we are planning at the FCO on 26 November. I extend that invitation to all noble Lords and assure my noble friend Lord Patten that NGOs are also being included in such an outreach programme. We will continue to seek views from all informed parliamentarians, whether it concerns the Conflict Pool, the stabilisation unit or of course the important issue of women, peace and security.

Several noble Lords mentioned the UN high-level panel meeting and the post-2015 framework. My right honourable friend the Prime Minister is hosting those meetings. When asking other people within the UN to wake up, he said:

“So to those who say we can't afford to act I say: we can't afford to wait”.

Those words resonate and are testament to the view of the Government. My right honourable friend the Secretary of State, Justine Greening, has also recently met with various Ministers visiting London

I am conscious that time has caught up with me. In conclusion, I assure your Lordships’ House that this Government continue to take this particular issue very seriously. However, we also recognise that we need to work with all interested parties in developing this strategy to the next level. I will continue to listen and work, and I am delighted that we continue to put issues of international development at the centre of our thinking. No one underestimates the scale of the challenge ahead and the surprises in store for us. However, I am confident that we have a range of tools and mechanisms in place and will continue to refine and develop our approach as we implement strategies for building stability overseas. The wisdom, experience and great knowledge that is in your Lordships’ House will of course always be welcome.

House adjourned at 9.03 pm.