House of Lords

Wednesday 12th December 2012 Lords Chamber

Wednesday, 12 December 2012.

15:00

Prayers—read by the Lord Bishop of Bristol.

Driving: Blood Alcohol Limit

Wednesday 12th December 2012 Lords Chamber

Question

15:07

Asked by

[Lord Brooke of Alverthorpe]

To ask Her Majesty’s Government whether they will consider introducing a 50 milligram blood alcohol limit for drivers aged under 21.

[Earl Attlee]

My Lords, the Government have no plans to introduce a lower blood alcohol limit. The North review did not support a lower limit for drivers under 21 and the Government endorsed this. The Department for Transport is considering several options to ensure that newly qualified drivers drive safely.

[Lord Brooke of Alverthorpe]

As the Minister will be aware, I have shifted my position considerably in the spirit of Christmas. I have moved away from a demand for zero tolerance to what seems to be a reasonable compromise to move forward. I am sorry that in his first response he said that the Government will not move, but at least they are prepared to consider some movement for younger drivers. All the evidence indicates that this is required. Will the Minister confirm to the House that the number of drink-driving deaths went up last year for the first time in a number of years, and that we need to take action in the near future?

[Earl Attlee]

My Lords, I confirm that there was some unwelcome news on the number of casualties. However, if one looks at the graph, there continues to be a welcome downward trajectory. None the less, across the House, we all need to work hard to continue that downward trajectory.

[Baroness Sherlock]

My Lords, will the Minister tell the House how many fatalities per year the department believe to have any connection with drink-driving among people under 21?

[Earl Attlee]

My Lords, I am not sure regarding those under 21. The key figure is 280 drink-related fatalities per year.

[Baroness Finlay of Llandaff]

My Lords, will the Minister explain what the measures are to improve the safety of young drivers which he alluded to in his first response?

[Earl Attlee]

My Lords, we are considering all possible options at the moment to continue the downward trend.

[Lord Mackenzie of Framwellgate]

Will the Minister comment on the increasing and worrying trend of people driving under the influence of drugs? Will he tell the House when it is likely that a device will be approved for roadside testing in this regard?

[Earl Attlee]

My Lords, during the passage of the Crime and Courts Bill this afternoon we will be taking the drug-driving provisions through. There are two pieces of equipment to be approved: the station-based drug testing equipment, which is on track to be approved by the Home Office shortly, and the roadside drug testing equipment, which is a little more difficult; we need to wait for the outcome of the expert panel which is looking at the appropriate levels before we can set its specification.

[Lord Swinfen]

My Lords, how long does it take for the blood alcohol level to return to zero from 80 milligrams when the alcohol disperses naturally?

[Earl Attlee]

My Lords, I do not know, but the key point is that there is no safe limit of alcohol in the blood when driving a vehicle. Therefore, we advise that the best option is not to drink at all.

[Lord Harris of Haringey]

My Lords, I note that the noble Earl told us that there was a downward trajectory. Will he give us the figures for the number of fatalities in the past year and for the year before that to demonstrate that? What stance are the Government taking on the BMA’s recommendations on this matter?

[Earl Attlee]

My Lords, the casualty figures were distorted slightly by the number of casualties in 2010, which were slightly lower; we believe that that was due to the bad weather. The key point is that the figures for 2011 were still better than those for 2009.

[Lord Roberts of Llandudno]

My Lords, will the Minister tell us how the United Kingdom’s blood alcohol limit compares with those of the rest of Europe?

[Earl Attlee]

My Lords, many European countries have a 50 milligram blood alcohol limit. However, they also have lower penalties at that level. Our policy is to have an 80 milligram limit but very severe penalties if you exceed the limit. This seems to have the right effect because our safety record is better than that on the continent.

[Viscount Simon]

My Lords, if the noble Earl is saying that 80 milligrams is the correct level for us, what about Scotland and Wales? Presumably they will decrease their level to 50 milligrams.

[Earl Attlee]

My Lords, the noble Viscount is quite right; Scotland has the power to set a lower limit. However, it cannot change the penalties. If it does change its limit, it will be very interesting to see what the effect will be on casualties.

[Baroness Miller of Chilthorne Domer]

My Lords, in France it is now compulsory by law to carry a breathalyser kit in one’s car. Is the UK considering anything like that?

[Earl Attlee]

My Lords, absolutely not. The difficulty with that idea is that it would enable drivers to drink more while believing that they were below the limit. Our policy is that there is no safe level of alcohol in the blood when driving. Therefore, we do not support the compulsory carrying of breathalysers by drivers.

[Baroness Hayman]

My Lords, when the Minister gave the figures for the number of fatalities involving drink, did all of those incidents involve blood alcohol levels above the current limit? My recollection is that one problem with the issue was that no statistics were kept for accidents involving drinkers who were below the 80 milligram limit but above the 50 milligram limit. Is that information now available?

[Earl Attlee]

My Lords, it may well be available but I am not aware of it. However, my point is that there is no safe blood alcohol level when one is driving a vehicle.

[Lord Cormack]

My Lords, my noble friend referred to options and the noble Baroness, Lady Finlay, asked him if he could specify some of the options. Can he give us at least two of them?

[Earl Attlee]

My Lords, one option—and it is only an option—would be to deal with the problem of tragic accidents where several youngsters are killed in one vehicle. These are very distressing accidents and we need to consider whether we should allow a young driver to carry several youngsters. However, there is a contrary argument, which noble Lords opposite articulated when they were Ministers, that that could have an economic effect. It could mean that the system of one sober driver might not work. So we need to consider carefully what the options are to make sure that there are no unintended consequences.

[Baroness Farrington of Ribbleton]

My Lords, will the Minister tell your Lordships’ House which drugs will be detected if the detection equipment is found to be reliable?

[Earl Attlee]

My Lords, we are shortly going to be publishing the review of the expert panel which will tell us which drugs and what levels for each drug will be detected, based on scientific evidence, and the risk associated with them.

Lobbyists: Register

Wednesday 12th December 2012 Lords Chamber

Question

15:15

Asked by

[Baroness Hayter of Kentish Town]

To ask Her Majesty’s Government when they will bring forward proposals for a register of lobbyists.

[Lord Wallace of Saltaire]

The consultation document Introducing a Statutory Register of Lobbyists was published earlier this year to gather evidence from experts in the field and members of the public. It asked a number of specific questions, the multiple answers to which are informing policy developments in this area.

[Baroness Hayter of Kentish Town]

Well, my Lords, it does not sound like much action has been taken. Given that the coalition promised to regulate lobbying through a statutory register—in case the noble Lord needs reminding—can he tell us whether it is going to move on this or is it going to wait for the next big scandal before it does so?

[Lord Wallace of Saltaire]

My Lords, we are certainly intending to move on this but as the noble Baroness will appreciate if she has looked through the replies to the consultation document and the companion report of the Political and Constitutional Reform Committee in the other place, there is a quite remarkable dissensus among respondents. The Government’s summary of replies to the consultation document remarks at one point, in effect, that a lot of those consulted regard themselves as a legitimate part of the political process but regard everyone else as lobbyists. That is part of the problem. The paid lobbyists are a small part of those with whom we are talking, and they wish charities, think tanks, trade unionists and others also to be included on any register of lobbyists.

[Lord Tyler]

My Lords, does my noble friend agree that the overriding objective must surely be greater transparency? In that regard, while we must obviously avoid excessive complexity because the information has to be accessible and digestible, does he agree that all we really need to know is who is lobbying who about what? The register only goes so far in that respect.

[Lord Wallace of Saltaire]

My Lords, the Government have moved some way towards greater transparency in terms of who members of the Government meet. I am amazed by the detail in which I have to account quarterly for who I have met over the previous three months, so at one end we are already being more transparent. Part of the origin of the proposals for a lobbying register during the previous Government was the question of how much money was being paid to these specialist lobbying companies to influence Government. That was the origin of the inquiry. For the first time in my life, I sympathised enormously with the evidence given by the TaxPayers’ Alliance to the inquiry in which it said a narrower definition would be rather better.

[Lord Campbell-Savours]

When the noble Lord fills in the form that he talks about within the department, does he draw a distinction between official and unofficial engagements and does he register them both?

[Lord Wallace of Saltaire]

Yes, and we have discussed whether I should put down everyone I meet at a party conference. There comes a point where almost the entire political process becomes lobbying. For example, the secretariats of most all-party groups are supported by outside bodies. Are those lobbyists? Is that proper? Should we do away with them? One gets into very deep water quite early on in this field.

[Lord Martin of Springburn]

My Lords, would journalists in the press gallery, who are therefore registered journalists, be allowed also to be registered lobbyists? In other words, could they hold two occupations?

[Lord Wallace of Saltaire]

I have to admit that I do not know the answer to that question and will have to write to the noble Lord.

[Lord Hamilton of Epsom]

Does my noble friend agree that if we restricted the activities of lobbyists and it resulted in fewer all-party groups, that would be a very good idea?

[Lord Wallace of Saltaire]

There might be no more cakes and wine, I am afraid. Let us be clear: lobbying is an entirely legitimate part of the political process, which would be poorer if we did not have lobbying. The problem is that we have lobbying from professional companies, advocacy groups—many of which are also charities—the CBI, trade unions and others. It is a very complicated area to try to pin down to a single statutory register.

[The Countess of Mar]

My Lords, when you get a company lobbying, would it be helpful if it were to register on whose behalf it was lobbying, so that when it writes to us, we know who it is lobbying for?

[Lord Wallace of Saltaire]

My Lords, that is the narrowest definition and where the Government started. The replies to the consultation have taken us much wider than many of us originally intended to be taken. Certainly, the concern—and I am very struck by this in the documents that I am looking at—and perception that there is undue lobbying is very much about large sums of money being paid to professional companies, very often by foreign Governments.

[Lord Dubs]

My Lords, on the question of all-party groups, does the Minister agree that if professional lobbyists insinuate themselves into all-party groups, that is a breach of the standards that we ought to expect, both as regards this House and the wider public? Although we have had several goes at cleaning this up, there is a lot still to be done.

[Lord Wallace of Saltaire]

I agree that we have to be very careful about all-party groups. It is a matter for both Houses as much as anything else. However, one might not want to say that Universities UK for example, which happens to assist the All-Party Group for Further Education, Skills and Lifelong Learning, is a lobbying company and should not be allowed to support that group. There is a gradation here; one has to think about what is proper and what is not.

[Lord Hughes of Woodside]

My Lords, when the Minister writes to the noble Lord, Lord Martin, will he also place a copy in the Library?

[Lord Wallace of Saltaire]

Certainly.

[Lord Swinfen]

My Lords, when we have a register of lobbyists, will it be illegal for those not on the register to lobby?

[Lord Wallace of Saltaire]

There is a voluntary register of public relations companies, which was established in the wake of an earlier inquiry in 2009. However, one of the three bodies that joined that register has now left it. Even within the public relations industry, they disagree among themselves as to who exactly one should be regulating.

[Lord Greaves]

My Lords, does my noble friend agree that there is nothing wrong whatever with people and organisations lobbying Members of Parliament and, indeed, lobbying Members of your Lordships’ House, much as though many Members of this House might prefer it not to happen? The important thing is absolute transparency and clear rules about the use of money.

[Lord Wallace of Saltaire]

I agree very strongly. We all need to defend the usefulness of representational groups, advocacy groups, think tanks and others in contributing to our information. We all get lots of e-mails from those groups as we approach legislation and other things. That is a desperately important part of the open, democratic political process—so long as we are sure that we know what is going on and that it is transparent.

Charities

Wednesday 12th December 2012 Lords Chamber

Question

15:23

Asked by

[Baroness Pitkeathley]

To ask Her Majesty’s Government whether they will take steps to encourage giving to the United Kingdom charitable sector in the light of the recent report UK Giving 2012 that reported a drop in donations of 20 per cent in real terms.

[Baroness Pitkeathley]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw attention to my charitable interests as listed in the register.

[Lord Wallace of Saltaire]

My Lords, the report does suggest a worrying drop in giving. However, this is yet to be confirmed as a trend, and there is some debate within the sector about whether this is what charities are experiencing on the ground. The Government remain committed to taking action to ensure that Britain continues to be a generous country, in giving both money and time.

[Baroness Pitkeathley]

The Minister is right that there is some dispute about the figures, but I wonder whether he is familiar with the latest report by the Charities Aid Foundation that one in six charities think that they will have to close over the next year and that half are already using their reserves because of a fall in donations, cuts in public spending and much increased demand for their services. How do the Government think that this will impact on their vision of the voluntary sector and charities being a vital part of the delivery of public services and, indeed, on the Prime Minister’s hopes for the big society?

[Lord Wallace of Saltaire]

My Lords, I have also seen that report and looked at it in some detail. It is interesting, incidentally, that as of September this year there were 2,000 more charities registered than there had been three years before so the trend has not, so far, been downwards, but it is worrying. From my experience of the charities sector, and I have visited a large number of additional charities since I took over this post, I am shaken by some that I meet in Yorkshire that are almost entirely dependent on public funds. That seems unwise. I strongly approve of those that raise some of their money through their own activities. The social enterprise model is very much part of what charities should be doing. The Government are doing a whole range of things to encourage the new generation to give more of their time and money. The National Citizen Service is one of them.

[Baroness Barker]

My Lords, given that the number of donations being given online and by text is increasing, does the Minister agree that charities are losing out, because gift aid is not yet fully digitised? Does he agree that it is imperative that the Government help charities to achieve a universal declaration of gift aid so that online giving can be much more beneficial than it is now?

[Lord Wallace of Saltaire]

My Lords, I strongly agree with the noble Baroness. We are also looking at the difficulties of payroll giving. The Government want to encourage it. A small number of, by and large, large companies make that easy for their employees. We would like to see an expansion of payroll giving. The figures suggest that older people are now much more generous than the younger generation, and we do not entirely know the reasons. Again, that is not entirely fitting. I trust that all Members of this House are giving at least 10% of their income to charity.

[Lord Grenfell]

My Lords, I spent some years living in the United States. I was always struck there by the efficacy of the system that they have, in which where contributions to charities are fully deductible. The US Treasury seems to have worked out that the more that is given by individuals, the less the eventual burden on the taxpayers because they are taking up a lot of the strain from the taxpayers. This is not rocket science. Successive Governments here never seem to look at this as a serious proposition. Why not?

[Lord Wallace of Saltaire]

I do not entirely agree with the noble Lord, Lord Grenfell. I have a relative in the United States who managed, by making donations of various sorts to his university library, to avoid paying almost any tax the previous year. One wants to encourage people to be generous. The Small Charitable Donations Bill, which we will be dealing with next week, is part of that. We need to consider how one asks for larger donations and makes them tax-beneficial. I remind people that legacies are also important, but a charity which I was talking to last week said that the problem with legacies is that people offer them to you, then stick around for many years.

[Baroness Berridge]

My Lords, have the Government assessed whether the decline in charitable giving is connected to an increasing rise in the practice of charity mugging, commonly called chugging, where members of the public are approached by representatives, who may be working for agencies, to sign a direct debit? In particular why is it that if they are holding a cash tin they need a licence from the local authority, but if they make an approach for a direct debit they do not?

[Lord Wallace of Saltaire]

My Lords, the noble Lord, Lord Hodgson, dealt with chugging in his review of the Charities Act. We wish to encourage a broader base for giving among small donors. Chugging has been with us for some time. It is not a new phenomenon.

[Lord Best]

My Lords, in terms of the giving of time through volunteering, as well as the giving of money, it is good news that the Government are supporting more volunteering for sports as part of the legacy from those wonderful games makers at the Olympics. Will that same support for volunteering be extended beyond just sporting activity to other kinds of volunteering, such as the work that the WRVS is currently doing in sending volunteers in to help people who are living alone and suffering from loneliness?

[Lord Wallace of Saltaire]

My Lords, the Government’s join in scheme is very much intended to take on the spirit of the Olympics and extend it to a whole range of other activities. I visited a National Citizen Service course this summer. I had been relatively sceptical about National Citizen Service until then, but I was completely bowled over by the young people who were taking the course who were learning how to go out, raise money, help people and develop schemes. I would like to see many more people have the opportunity to learn how they can contribute more actively to society. It was a bunch of people from one of the poorer areas of Bradford, and it was delightful to see that they were learning to give their time and were managing to raise money.

[Baroness Uddin]

My Lords, during the noble Lord’s wide-ranging visits to different areas and charitable organisations, what assessment has he made of the impact of the current economic crisis, particularly on BME women’s organisations, given the Government’s commitment to empowering women and those dealing with domestic violence and increased reports of forced marriages and honour-based violence?

[Lord Wallace of Saltaire]

My Lords, what happens to different charities depends partly on how heavily they depend on public funds and what their donor or social enterprise base is. I am aware of several charities in Yorkshire that deal particularly with women. Their current trajectory is very different depending on their funding base.

NHS: Clinical Networks

Wednesday 12th December 2012 Lords Chamber

Question

15:31

Asked by

[Baroness Thornton]

To ask Her Majesty’s Government how they will address any shortfall in the funding of clinical networks.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, national funding for clinical networks has been maintained at £33.6 million since 2009. Forty-two million pounds has been allocated by the NHS Commissioning Board to support strategic clinical networks and clinical senates in 2013-14. It is for local health communities and the board to determine the number and size of networks, based on patient flows and clinical relationships, and to deploy their resources appropriately.

[Baroness Thornton]

I thank the Minister for that Answer. His boss, the Secretary of State, is on the record as saying that clinical networks funding is increasing and will continue, yet on Monday a freedom of information survey revealed severe cuts to budgets and staff in clinical networks, so I wonder who is right. Cancer networks are cut by 26% and stroke and cardiac by 12% in the same period—2009-13—with the loss of hundreds of experienced and motivated staff. Do the figures that the Minister has given to me also cover clinical senates? Will those cuts be restored? What incentives are the Government putting in place to ensure that local health organisations contribute to the additional funding of cancer networks? Indeed, how will the local diabetes networks be supported in the new commissioning regime? We know that these networks work.

[Earl Howe]

My Lords, I agree with the noble Baroness’s last comment. These networks are extremely valuable. I confirm that the figure I gave her in my Answer of £42 million covers clinical senates as well. It is perfectly correct that the share of the pot which cancer networks will be able to avail of is likely to be smaller next year than it is this year. However, I can categorically confirm that, as I said in my Answer, national funding has not been cut to date and is going up next year very considerably. Furthermore, we should recognise that the Commissioning Board’s announcement amounts to a ringing endorsement of the value of networks in improving patient outcomes. Not only will funding be increased but for the first time there will be nationally supported networks for mental health, dementia and neurological conditions as well as maternity and children’s services. I say to the noble Baroness that recruitment to the networks is proceeding very smoothly and encouragingly.

[Lord Sharkey]

My Lords, I declare an interest as a lay member of a cancer network lung cancer group. I know the Minister is aware that our survival scores for lung cancer need improvement and that early diagnosis is the key to that improvement. In the light of that, what steps are being taken to make absolutely certain that any reduction in the number, staff or funding of cancer networks does not damage the efforts to improve early diagnosis?

[Earl Howe]

My Lords, I am grateful to my noble friend. As regards cancer, it is important to look at what the Government are doing across the piece. As the noble Lord may recall, the cancer strategy that we published a while ago is backed by more than £450 million of investment. This is specifically to target earlier diagnosis of cancer; to give GPs increased access to diagnostic tests; to allow for the increased testing and treatment costs in secondary care; to support campaigns; and so on. That is a large sum of money and it is committed.

[Lord Kakkar]

Does the Minister envisage a role for the to-be-designated academic health science networks in delivering clinical networks in the future? I declare my interest as chair for quality, University College London Partners academic health science partnership.

[Earl Howe]

My Lords, yes. National guidance is being produced by the NHS Commissioning Board, setting out the different areas of focus for academic health science networks, health and well-being boards, local education and training bodies and clinical senates. The defined geographies of the 12 network support teams have been developed precisely to gain close alignment and therefore promote close relationships and co-operation with the other structures in the new system—including academic health science networks.

[Baroness Masham of Ilton]

My Lords, how are clinical network members recruited? Are they advertised?

[Earl Howe]

My Lords, in some cases, yes, but we anticipate that many members of existing networks will be transferred across into the new ones.

[The Countess of Mar]

My Lords, the people with CFSME were greatly heartened in 2008 when the Chief Medical Officer ring-fenced £8 million to set up clinical networks on their behalf. They have become disillusioned as the funding of these networks has gradually been cut. There is also no provision for children in the clinical networks. What priority is given to CFSME?

[Earl Howe]

My Lords, strategic clinical networks are only one category of network in the new system. There is nothing to stop professional groups coming together to share best practice and support professional development. In addition, clinical commissioning groups may well wish to establish networks to support local priorities and ways of working; and providers may use a network model to enable the joint delivery of a service, such as pathology. The noble Baroness, Lady Thornton, rightly referred to the extent to which local providers and commissioners already support strategic clinical networks. So there is a variety of ways of doing this.

[Lord Patel]

Does the Minister recognise that reducing funding for cancer networks will lead to a reduction in staff and therefore a reduction in the effectiveness of cancer networks?

[Earl Howe]

My Lords, Professor Sir Mike Richards, the national cancer director, said the other day:

“Although cancer networks will have a smaller proportion of the budget in the future, there are still backroom efficiencies that can be made to make things work more effectively. Increasing the footprint of each network will make them more cost-efficient”.

I have spoken to him personally and he is confident that the available budget can still be used to ensure that there is at least equal cost-effectiveness of networks.

North Korea

Wednesday 12th December 2012 Lords Chamber

Private Notice Question

15:38

Asked by

[Lord Alton of Liverpool]

To ask Her Majesty’s Government what is their assessment of the impact on regional and world security of North Korea’s recent missile launch.

[Lord Alton of Liverpool]

My Lords, I beg leave to ask a Question of which I have given private notice. I declare a non-pecuniary interest as the chairman of the All-Party Group on North Korea.

[The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)]

My Lords, we condemn North Korea’s satellite launch. This test of its ballistic missile technology is in clear violation of UN Security Council Resolutions 1718 and 1874. This provocative act will only serve to increase regional tensions and undermine prospects for peace in the peninsula. The UK is urgently consulting with the UN Security Council and we have urged North Korea to return to constructive international negotiations.

[Lord Alton of Liverpool]

My Lords, I am grateful to the Minister for her response. Is not this highly provocative act, coming a week before South Korea’s elections, an attempt to undermine any attempts at peaceful moves for reconciliation and progress? It is also a wicked waste of resources, estimated at some $800 million. That is enough to feed the entire population of North Korea for a year, in a country where malnutrition and starvation are commonplace. Will the Minister tell the House whether the Government have called in the North Korean ambassador and, if so, what will they say to him? Does she welcome China’s statement this morning, in advance of the Security Council meeting, that,

“Pyongyang should … abide by relevant UN Security Council resolutions … which demands the DPRK not to conduct ‘any launch using ballistic missile technology’ and urges it to ‘suspend all activities related to its ballistic missile programme’”?

[Baroness Warsi]

I agree with the noble Lord. I think that the timing of this testing is indeed important and relevant, so soon after the US elections and the transfer of power in China and just before the elections in Japan and South Korea. We are looking at the timing of this matter in some detail. I also agree with the noble Lord that for a country with extreme poverty to be using resources on developing what we feel to be further nuclear missile technology is not an appropriate use of funds.

I can confirm that the North Korean ambassador to the UK was called to the Foreign and Commonwealth Office today—indeed, possibly as we speak, he is in a meeting with the Permanent Under-Secretary.

[The Lord Bishop of Hereford]

My Lords, does the Minister agree that in a country where there is so much human suffering, it would behove North Korea rather more to make a priority of alleviating suffering, as well as seeking dialogue and reconciliation, and that this provocative act, as she described it, damages both those targets? Will she ensure that we do not lose sight of the human rights violations in a country where the United Nations estimates that 200,000 people are held in prison camps?

[Baroness Warsi]

The right reverend Prelate is right. In a country where both resource and energy could be spent on so much, whether on alleviating poverty or on human rights, this does not appear to be an act which is in the interests of its own people.

[Lord Triesman]

My Lords, I am grateful to the noble Lord, Lord Alton, for raising the Question today, because we share the concern that this missile test will be destabilising regionally and for the world, and may well provide the grounds for a regional arms race and proliferation.

There have been reports today that part of the missile project has been conducted jointly with Iran. Have the Government any further information on that? Will the process that we will go through on the Security Council resolutions have the same characteristics as were announced about an hour and a quarter ago by the United States: that there should be a full head of steam behind the approach to the United Nations, potentially calling for similar sanctions to those in force on Iran?

[Baroness Warsi]

I can confirm, my Lords, that discussions are ongoing as to how the United Nations Security Council proceeds in this matter: whether it is by way of a further resolution or a presidential statement; whether further sanctions could be applied; and the nature of those sanctions. On the noble Lord’s question about Iran, I do not have any further information at this stage, but if it is something that I can write to him about, I will.

[Lord Guthrie of Craigiebank]

My Lords—

[Baroness Falkner of Margravine]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, there is plenty of time. Perhaps we could hear from my noble friend and then the noble and gallant Lord.

[Baroness Falkner of Margravine]

My Lords, this has been the third serious provocation in less than four years by North Korea. The noble Baroness referred to the potential of the UN Security Council meeting. Will she assure the House that in the conversations that will be had with China with respect to potential Security Council sanctions against North Korea, the energy dependence of North Korea on China will be discussed, and that China will be pressed not to continue to provide oil to North Korea?

[Baroness Warsi]

I will certainly take on the views of my noble friend.

[Lord Guthrie of Craigiebank]

My Lords, having been to North Korea reasonably recently and had less than satisfactory conversations with politicians and the military there, I think that we ought to realise that the one thing that unites North Korea is hatred of the United States. We should do everything that we possibly can to try to get the United States to have a better dialogue with North Korea. Wherever you go in North Korea they remember the Korean War—the monuments are all around the country. It is taught to children from the very first year they go to school. I hope that we can try to influence the Americans to understand this, and they could make a big difference. The Korean War was 60 years ago.

[Baroness Warsi]

The noble and gallant Lord clearly speaks from experience in relation to his own visit and his own dialogue. I can only speak on behalf of our Government. Even in very difficult circumstances we felt it was appropriate to continue our dialogue and our discussions in whatever opportunities present through our embassy in North Korea.

[Lord Soley]

Can the Minister tell us a little more about the way we are trying to draw China into a longer and deeper discussion about how we deal with North Korea? China has an enormous problem on its own border, not just because of the military side but also because of starving refugees trying to get across that border. Surely a large part of this must be our attempt to get China more fully engaged in a longer-term proposal as this regime is one of the most awful and most dangerous in the world.

[Baroness Warsi]

I agree with the noble Lord that China has to be part of the solution in relation to North Korea. The noble Lord will be aware that it is part of the six-nation discussions, which of course also include the United States, Russia and Japan.

[Lord Marlesford]

My Lords, does my noble friend agree that the only long-term solution to the untold misery of the people of North Korea, and the ending of the serious menace that that state poses to regional and indeed world peace, is its absorption into South Korea? Does she agree that the Chinese would not necessarily be averse to that solution?

[Baroness Warsi]

I think that the future of North Korea goes beyond the remit of this immediate Question.

[Lord Grenfell]

My Lords, it is good news that the ambassador of North Korea has been called in. I have not heard many people mentioning South Korea—the Republic of Korea—in this exchange. Are Her Majesty’s Government speaking to the South Koreans to urge them not to try to take any kind of unilateral action and that whatever they do, it should be done through the United Nations?

[Baroness Warsi]

As the noble Lord will appreciate, this was a Private Notice Question. I am not sure if any discussions have taken place immediately, certainly within the past 24 hours, on the specific point that the noble Lord raises. We are, however, in general discussions with the South Koreans on this matter and, as I said earlier, they form part of the six-nation dialogue.

[Lord Harris of Haringey]

My Lords—

[Lord Campbell of Alloway]

Is it not the wish of the Government now to consult with America and China on how to deal with this situation? We cannot deal with it single-handed.

[Baroness Warsi]

My noble friend is right. This is not a matter which the UK would seek to deal with in any way single-handedly.

Statute Law (Repeals) Bill [HL]

Wednesday 12th December 2012 Lords Chamber

Order of Recommitment Discharged

15:49

Moved by

[Lord McNally]

That the order of recommitment be discharged.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.

Motion agreed.

Patrick Finucane

Wednesday 12th December 2012 Lords Chamber

Statement

15:50

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, I would now like to repeat a Statement that was made by the Prime Minister earlier this afternoon in the House of Commons on the murder of Patrick Finucane.

“The murder of Patrick Finucane in his home in North Belfast on Sunday 12 February 1989 was an appalling crime. He was shot 14 times as he sat down for dinner with his wife and three children. His wife was injured, and Patrick Finucane died in front of his family.

In the period since the murder, there have been three full criminal investigations carried out by the former Metropolitan Police Commissioner, Lord Stevens. Taken together, they amount to the biggest criminal investigation in British history, led by the most senior police officer, and consisting of more than 1 million pages of documents and 12,000 witness statements obtained with full police powers. As a result of the third Stevens investigation, one of those responsible, Ken Barrett, was tried and convicted in 2004 for the murder of Patrick Finucane.

There was a further report by Judge Cory. Both Lord Stevens and Judge Cory made it clear that there was state collusion in the murder. This itself was a shocking conclusion, and I apologised to the family on behalf of the British Government when I met them last year. But despite these reports, some 23 years after the murder, there has still been only limited information put into the public domain. The whole country, and beyond, is entitled to know the extent and nature of the collusion, and the extent of the failure of our state and Government. That is why, last October, this Government asked Sir Desmond de Silva to conduct an independent review of the evidence to expose the truth as quickly as possible.

Sir Desmond has had full and unrestricted access to the Lord Stevens archive and to all government papers. These include highly sensitive intelligence files and new and significant information that was not available to either Lord Stevens or Justice Cory, including Cabinet papers, minutes of meetings with Ministers and senior officials, and papers and guidance on agent handling. He has declassified key documents, including original intelligence material, and he has published them in volume 2 of his report today. The decision over what to publish was entirely his own—it was entirely a matter for Sir Desmond de Silva. Sir Desmond’s report has now given us the fullest possible account of the murder of Patrick Finucane and the truth about state collusion. The extent of disclosure in today’s report is without precedent.

Nobody has more pride than me in the work of our Armed Forces, our police service and our security forces. I see at close hand the work they do to keep us safe. As Sir Desmond makes clear, he is looking at,

“an extremely dark and violent time”,

in Northern Ireland’s history. I am sure the House will join me in paying tribute to the police and security forces that served in Northern Ireland, but we should be in no doubt that this report makes extremely difficult reading. It sets out the extent of collusion in areas such as identifying, targeting and murdering Mr Finucane; supplying a weapon and facilitating its later disappearance; and deliberately obstructing subsequent investigations. The report also answers questions about how high up the collusion went, including the role of Ministers at the time. Sir Desmond is satisfied that there was not,

“an over-arching State conspiracy to murder Patrick Finucane”,

but while he rejects any state conspiracy, he does find quite frankly shocking levels of state collusion. Most importantly, Sir Desmond says he is,

“left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA”—

the Ulster Defence Association—

“in February 1989 had it not been for the different strands of involvement by elements of the State”.

He finds that,

“a series of positive actions by employees of the State actively furthered and facilitated his murder”,

and he cites five specific areas of collusion.

First,

“there were extensive ‘leaks’ of security force information to the UDA and other loyalist paramilitary groups”.

Sir Desmond finds that,

“in 1985 the Security Service assessed that 85% of the UDA’s ‘intelligence’ originated from sources within the security forces”.

He is,

“satisfied that this proportion would have remained largely unchanged by … the time of Patrick Finucane's murder”.

Secondly, there was a failure by the authorities to act on threat intelligence. Sir Desmond describes,

“an extraordinary state of affairs ... in which both the Army and the RUC SB”—

Royal Ulster Constabulary Special Branch—

“had prior notice of a series of planned UDA assassinations, yet nothing was done by the RUC to seek to prevent these attacks”.

When you read some of the specific cases in the report —page after page in chapter 7—it is really shocking that this happened in our country. In the case of Patrick Finucane, he says that,

“it should have been clear to the RUC SB from the threat intelligence that ... the UDA were about to mount an imminent attack”,

but,

“it is clear that they took no action whatsoever to act on the threat intelligence”.

Thirdly, Sir Desmond confirms that employees of the state and state agents played “key roles” in the murder. He finds that,

“two agents who were at the time in the pay of … the State were involved”—

Brian Nelson and William Stobie—

“together with another who was to become an agent of the State after his involvement in that murder”.

It cannot be argued that these were rogue agents. Indeed, Sir Desmond concludes that Army informer Brian Nelson should,

“properly be considered to be acting in a position equivalent to an employee of the Ministry of Defence”.

Although Nelson is found to have withheld information from his Army handlers,

“the Army must bear a degree of responsibility for Brian Nelson's targeting activity during 1987-89, including that of Patrick Finucane”.

Most shockingly of all, Sir Desmond says that,

“on the balance of probabilities … an RUC officer or officers did propose Patrick Finucane … as a UDA target when speaking to a loyalist paramilitary”.

Fourthly, there was a failure to investigate and arrest key members of the West Belfast UDA over a long period of time. As I said earlier, Ken Barrett was eventually convicted of the murder, but what is extraordinary is that back in 1991, instead of prosecuting him for murder, as the RUC CID wanted to, the RUC Special Branch decided instead to recruit him as an agent.

Fifthly, this was all part of what Sir Desmond calls a wider,

“relentless attempt to defeat the ends of justice”,

after the murder had taken place. Sir Desmond finds that,

“senior Army officers deliberately lied to criminal investigators”.

The RUC Special Branch, too,

“were responsible for seriously obstructing the investigation”.

On the separate question of how certain Ministers were briefed, while Sir Desmond finds no political conspiracy, he is clear that Ministers were misled. He finds that,

“the Army and Ministry of Defence (MoD) officials provided the Secretary of State for Defence with highly misleading and, in parts, factually inaccurate advice about the … handling of … Nelson”.

On the comments made by Douglas Hogg, Sir Desmond agrees with Lord Stevens that the briefing he received from the RUC meant he was “compromised”. But he goes on to say that there is,

“no basis for any claim that he intended his comments to provide a form of political encouragement for an attack on any solicitor”.

More broadly on the role of Ministers, Sir Desmond says that there is,

“no evidence whatsoever to suggest that any Government Minister had foreknowledge of Patrick Finucane's murder, nor that they were subsequently informed of any intelligence that any agency of the State had received about the threat to his life”.

He says that the then Attorney-General, Sir Patrick Mayhew deserves,

“significant credit for withstanding considerable political pressure designed to ensure that Brian Nelson was not prosecuted”.

As a result, of course, Nelson was prosecuted in 1992, following the first investigation from Lord Stevens.

The collusion demonstrated beyond any doubt by Sir Desmond, which included the involvement of state agents in murder, is totally unacceptable. We do not defend our security forces, or the many who have served in them with great distinction, by trying to claim otherwise. Collusion should never, ever happen. So on behalf of the Government, and the whole country, let me say again to the Finucane family, I am deeply sorry.

It is vital that we learn the lessons of what went wrong, and for Government in particular to address Sir Desmond's criticisms of,

“a wilful and abject failure by successive Governments to provide the clear policy and legal framework necessary for agent-handling operations to take place effectively and within the law”.

Since 1989, many steps have been taken to improve the rules, procedures and oversight of intelligence work. There is now a proper legal basis for the security services, and the Regulation of Investigatory Powers Act 2000 has established a framework for the authorisation of the use and conduct of agents. In addition, the activities of individual agents are now clearly recorded, along with the parameters within which they must work. The Intelligence Services Commissioners and the Office of Surveillance Commissioners now regulate the use of agents and report publicly to this House. Taken together, these changes are designed to ensure that the failures of 1989 could not be made today.

Policing and security in Northern Ireland have been transformed, reflecting the progress that has been made in recent years. The Force Research Unit and the Special Branch of the RUC have both gone, and the Police Service of Northern Ireland is today one of the most scrutinised police forces anywhere in the world. It is accountable to local Ministers and a local policing board and it commands widespread support across the whole community.

Through all these measures, both this Government and their predecessors have shown a determination to do everything possible to ensure that no such collusion ever happens again. We will study Sir Desmond’s report in detail to see what further lessons can be learnt, and I have asked the Secretaries of State for Defence and Northern Ireland and the Cabinet Secretary to report back to me on all the issues that arise from this report. I will publish their responses. Other organisations that are properly independent of Government—police and prosecuting authorities—will want to read the report and consider their own responses.

Sir Desmond says that his conclusion,

“should not be taken to impugn the reputation of the majority of RUC and UDR officers who served with distinction during what was an extraordinarily violent period”.

He goes on to say that,

“it would be a serious mistake for this Report to be used to promote or reinforce a particular narrative of any of the groups involved in the Troubles in Northern Ireland”.

I am sure that those statements will have wide support in this House. We should never forget that over 3,500 people lost their lives and there were many terrible atrocities. Sir Desmond reminds us that the Provisional IRA,

“was the single greatest source of violence during this period”,

and that a full account of the events of the late 1980s,

“would reveal the full calculating brutality of that terrorist group”.

During the Troubles, over 300 RUC officers and 700 British military personnel were killed, with over 13,000 police and military injured. I pay tribute to them and to all those who defended democracy and the rule of law and who have created the conditions for the progress we have seen. We must not take that progress for granted, as we have seen this week, and I pay tribute again to those in the PSNI who are once again in the front line today. We must not and we will not allow Northern Ireland to slip back to its bitter and bloody past.

The Finucane family suffered the most grievous loss and they suffered it in the most appalling way imaginable. I know they oppose this review process and I respect their views. However, I respectfully disagree with them that a public inquiry would produce a fuller picture of what has happened and what went wrong. Indeed, the history of public inquiries in Northern Ireland would suggest that had we gone down that route, we would not know now what we know today.

Northern Ireland has been transformed over the past 20 years and there is still more to do to build a genuinely shared future. One of the things this Government can do to help is to face up honestly when things have gone wrong in the past. If we as a country want to uphold democracy and the rule of law, we must be prepared to be judged by the highest standards, and we must also face up fully when we fall short. In showing once again that we are not afraid to do that, I hope that today’s report can contribute to moving Northern Ireland forward. In that spirit, I commend this Statement to the House”.

My Lords, that concludes the Statement.

16:05

[Baroness Royall of Blaisdon]

My Lords, I thank the Leader of the House for repeating the Statement on Patrick Finucane given by the Prime Minister earlier in the other place. In addition, from the Opposition Benches in this House, I also thank Sir Desmond de Silva for his work and how he went about his task. He has produced a serious report within the terms of reference that he was set. It will take time to absorb its full details. I welcome the Prime Minister’s apology, which was set out in the Statement repeated by the Leader, to the Finucane family. It is the right thing to do.

We should begin by remembering the unimaginable horror of Pat Finucane’s murder. This was a husband, a father, a brother who was murdered in his own home as he sat with his family on a Sunday evening. Some 23 years after this appalling crime, his family still searches for the truth with courage and dignity.

This report provides disturbing and uncomfortable reading for all of us. It makes clear that there was collusion in the murder and a cover-up. Furthermore, it states that,

“agents of the State were involved in carrying out serious violations of human rights up to and including murder”.

Of course, this should not diminish the service of thousands of police officers, soldiers and Security Service personnel who were dedicated to protecting and serving people in Northern Ireland, and who have my admiration and that of all of us in this House today. They will be as appalled as we all are by the findings.

As we examine and assess the findings of this report and whether it is adequate, it is essential that we remember the background. An investigation into the murder of Pat Finucane in which the public had confidence was an important part of the peace process, a process which is held in trust from Government to Government, which began under Sir John Major and has continued since.

In 2001, at Weston Park, the Irish and British Governments agreed to appoint a judge of international standing to examine six cases in which there were serious allegations of collusion by the security forces. This applied in both jurisdictions: the UK and Ireland. It was agreed that in the event that a public inquiry was recommended in any of the cases, the relevant Government would implement that recommendation.

Judge Peter Cory was appointed and recommended that public inquiries were necessary in five cases. Three of those on the UK side have been completed and the one inquiry recommended on the Irish side is expected to report next year. The only outstanding case in which a public inquiry was recommended but has not taken place is that of Pat Finucane.

The previous Government could not reach consensus with the Finucane family on arrangements for an inquiry but, towards the end of our time in office, the Finucane family indicated that they would support a public inquiry under the Inquiries Act 2005 and had begun to discuss a way forward. We on this side continue to believe that we should abide by our obligations under the Weston Park agreement.

First, do the Government recognise the concern that the failure to hold a public inquiry is in breach of agreements that were an essential part of the peace process? Secondly, Sir Desmond has accepted the assurances of the state that he has been given all relevant material. But this is the same state the agents of which were involved in what the report describes at paragraph 116 as,

“carrying out serious violations of human rights up to and including murder”,

and the same state whose previous criminal investigations into this matter were the subject of “serious obstruction”.

Do the Government therefore recognise the concern about the limits to what the de Silva inquiry could do? Will the Leader of the House explain why the Prime Minister believes that a public inquiry would not have produced a fuller picture in which the public could have had confidence, as Mr Justice Cory recommended, not least because of the opportunity to cross-examine witnesses? In his Statement repeated by the Leader, the Prime Minister said he disagreed with the Finucane family that,

“a public inquiry would produce a fuller picture of what happened and what went wrong”.

I respectfully disagree with him.

Thirdly, the de Silva report concludes that,

“a series of positive actions by employees of the State actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice”.

What do the Government propose to do in response to these serious findings?

Fourthly, the British and Irish Governments have been as one on this issue. Will the Leader of the House say what discussions the Government have had with the Irish Government about the de Silva review, and what the position of the latter is today?

That takes me to the final issue: public confidence. That we continue to build trust and confidence among the communities of Northern Ireland remains crucial. The appalling violence we have seen on the streets of Northern Ireland in recent days should remind us of that. Judge Cory said that a public inquiry was needed into the murder of Pat Finucane because,

“without public scrutiny doubts based solely on myth and suspicion will linger long, fester and spread their malignant infection throughout the Northern Ireland community”.

Can the Government really say with confidence that the whole truth has been established in the case of Pat Finucane? How can we say that when the report is dismissed by his family and many others in Northern Ireland?

We, as the United Kingdom, must accept that sometimes our state did not meet the high standards we set ourselves during the Northern Ireland conflict. The past is painful and often difficult. We believe that we must establish the full and tested truth about Pat Finucane’s murder. We therefore continue to believe that a public inquiry is necessary for his family and for Northern Ireland.

16:10

[Lord Strathclyde]

My Lords, I thank the noble Baroness the Leader of the Opposition for her response to the Statement. She is right that it is essential that we should remember the background against which we operated at that time and, following on from that, she is right to note the enormous changes that have taken place during the course of the past 25 years, most of all during the peace process in the past 20 years. The noble Baroness asked a number of questions, to which I shall try to reply.

Perhaps I can deal with one question relatively quickly, on the Irish Government and their likely position. I can confirm that the Prime Minister spoke this morning to the Taoiseach, Enda Kenny. The position of the Irish Government, that they have been in favour of a public inquiry, has been widely known for a long time. However, they understand why we have taken the decision that we have taken, and they respect that we have been entirely open and frank. I hope that they, like everybody else who has an interest in this issue, will find some comfort in the integrity of the process once they have considered Sir Desmond’s report. The position of the Irish Government is, of course, one for them to determine.

I am well aware that the decision not to hold a public inquiry was controversial. However, our ambition and motivation as a Government was to frame a real question: what is the fastest way to get to the truth and to lay out what happened? We know what has happened in the past with public inquiries; some of them took five or six years, or even longer, cost tens of millions of pounds and perhaps did not even get closer to the truth than de Silva has got in his report today. We therefore very much support our decision to have this inquiry led by Sir Desmond de Silva.

At the time of the general election, this went to the core of the point made by the noble Baroness about confidence in Northern Ireland and in the process that we have conducted. In answer to whether we can say with full confidence that the whole truth has been uncovered, this is a very long report and individual noble Lords will want to review and read with care what has been said. However, it is clear that Sir Desmond de Silva has done the whole nation a tremendous service in trying to get to the heart of the matter and uncover the truth, building on the work that had been done by previous individuals. This was a fast way to find the truth. That is a good thing for Northern Ireland.

With the greatest respect to the noble Baroness, her Government had nine years between Weston Park and the general election to decide to go ahead with a public inquiry. It is not a decision that they took, possibly because they understood as much as we have done the problems of time and expense. The key thing is to get to the truth. I venture to suggest that very few countries would have set it out in so much detail or laid out what went wrong as comprehensively as we have done today. We should all take some pride in a country that is willing to do that. It is an agony in many respects to read what has been said, but it is right to publish and to ensure that people who have been affected can see the work that Desmond de Silva has done. That is very much the basis of the decision that we took and we stand by it.

[Earl Attlee]

My Lords, I remind the House of the benefit of short questions for my noble friend the Leader of the House, so that he can answer as many as possible.

16:16

[Lord Alderdice]

My Lords, I thank my noble friend for repeating the Statement. I thank the Prime Minister for instituting the de Silva inquiry and for his apologetic and sympathetic response to the Finucane family.

No Member of this House could listen to the Leader of the House reading out the Statement without being deeply shocked and dismayed at its horrifying content. This cannot be other than a source of national shame. One of our citizens was murdered in his own home with the collusion of state agents, and subsequently, for 23 years, there has been obstruction of the proper authorities in the investigation of these matters, including by senior officials in the Ministry of Defence, the police and security services, to the point, according to this report, that Ministers were lied to and misled, and they then misled Parliament. How is it possible to hold our own authorities to account if they are being so grossly misled in this way? This is a time for deep national shame and self reflection because it begs real questions.

It does no credit to our House to refuse to accept the clear reality of what went on. Authorities here must learn that you do not defend democracy by undermining the very principles of democracy, decency, honesty and of abiding by the proper law. I trust, although I frankly do not believe it, that some elements of government in Northern Ireland understand that playing footsie with paramilitaries and colluding with them, including in threats to some of my own friends recently, is no way to promote democracy. It is a travesty of democracy. How can we assure ourselves that these things will not happen in the future? We will not do so merely by responding to this Statement; I trust that there will be a full debate in your Lordships’ House and that we will properly learn the lessons, not by more inquiries but by more decisions as to how we hold these matters to account in the future.

[Lord Strathclyde]

My Lords, I understand exactly what my noble friend is saying and the force with which he says it, with all the experience and knowledge that he has in his personal background and the part that he has played in Northern Ireland. He is right in saying that none of us could hear the Statement made by the Prime Minister without being deeply shocked and dismayed by what has happened—the level of collusion and the cover up that took place thereafter.

He said that it was a national shame and he is right, but part of dealing with that is to confront it by having the review that we have taken, publicising it and apologising for what happened. There is also the second point, which I think my noble friend was referring to, about what has changed and how to ensure that these things do not happen again. The background within which the security services operate is so entirely different from that existing in the late 1980s when there was no legal framework against which they operated.

RIPA 2000 created a proper legal and policy framework within which to gather intelligence. There is now therefore an unambiguous framework which puts all work relating to agents on a statutory footing and is designed to prevent the same mistakes and abuses being made today. RIPA is also underpinned by a range of non-statutory frameworks and codes of practice which set out clear processes for the day-to-day management of agents by relevant agencies. Managers, the PSNI and the security services are required to ensure that staff comply with this legislation. The Statement referred to the PSNI now being the police force with more scrutiny that any other in the world. I think that that is right.

[Lord Maginnis of Drumglass]

My Lords, as somebody who has been fortunate to survive 10 murder attempts by the Provisional IRA, I find this isolated apology quite ridiculous. The reality is that the Finucane family were an IRA family. I illustrate this by saying that when I made that allegation publicly and was being sued for libel, the family retracted and paid my legal expenses. Let us not therefore fool ourselves about the “Godfather” Finucane who was killed. If there was connivance, let me say that all of us who served through the heart of the Troubles in Northern Ireland served in such a way that it was impossible to have a secret. Why were there 10 attempts on my life? Why was the noble Lord, Lord Kilclooney, shot? It was because there was conspiracy.

I point out that less than 1% of all terrorist suspects involved in proactive security force operations were killed by the security forces, and that 99% of cases ended in arrest. There were no incidents of unlawful killing in a Special Branch-led operation in Northern Ireland, and the security-force response was totally human-rights compliant. Let us not forget all those years of terrorism and become compelled by a single incident which may in fact—and I will not deny it—have involved conspiracy. If one sought justification—and I do not justify it—it was not without a godfather. Godfathers were responsible for so many murders in Northern Ireland, it should not be forgotten.

[Lord Strathclyde]

My Lords, the noble Lord, Lord Maginnis, brings his own particular view of these issues. Indeed, Sir Desmond looked at the accusation that Patrick Finucane was a member of PIRA, and on the basis of the evidence that he saw he concluded that he was not. I know that that was not the entire point that the noble Lord was making, but the Government have nothing to add to Sir Desmond’s conclusions on this point.

I am bound to say that the question of PIRA membership is not in this case particularly relevant. The point that was made in the Statement and as a result of the review is that the state should not have been involved in Patrick Finucane’s murder. It is on that basis that the state has made the apology.

[Lord King of Bridgwater]

My Lords, I declare an interest. I was Secretary of State for Northern Ireland when Patrick Finucane was murdered and I was Secretary of State for Defence when the possible prosecution of Brian Nelson arose. I join my noble friend in recognising —as he did in repeating the Prime Minister’s Statement, and as we all must—that this was an appalling crime of which we should all be ashamed. It should not have happened and it is particularly appalling because there is clear evidence of significant collusion. It was an appalling crime at what the Statement calls a dark and violent time in Northern Ireland. I was not surprised at the contributions of the noble Lords, Lord Maginnis and Lord Alderdice. The House has had the opportunity to sense some of the tensions that so rapidly rise to the surface, and which one can now see on the streets of Belfast.

That is in no sense an excuse for what happened. One of the things that I most resent about this is that the appalling things that happened in this case sully the reputation of very brave security forces who, over all those years and with huge personal suffering to them and their families, stood to protect the Province of Ulster, Northern Ireland, against the risk of total disaster. We should recognise that.

I take exception to one element of the Statement repeated by my noble friend: namely, the phrase “state involvement”, which is now current. I understand why it has arisen. It gives the impression that somehow the Government planned the murder of Patrick Finucane. It is an appalling concept that I as Secretary of State somehow authorised it. Of course, that is totally untrue. In my time I committed myself to trying to save every life that I possibly could on both sides of the community, however people were involved.

What is also clear is that there were incidents in which people were in clear breach of their orders or instructions. The Statement claims that there was no co-ordinated legal basis for the employment of agents. I draw the attention of the House to something in Sir Desmond de Silva’s report which states that agents were being handled at that time under the strict instruction of the Commander Land Forces Northern Ireland, Tony Jeapes, that it was unlawful for any person to authorise any illegal act, and that if there was any possibility of an agent becoming involved in criminality, the assistant chief of staff was to be informed through the commanding officer of the FRU so that preventive measures could be taken. Mr Nelson’s handler was acting in total breach of that instruction at the time. I should say that some of the agents, informers or touts—they go under different names in Northern Ireland—were incredibly brave people who saved an enormous number of lives. The difficulty of handling them should not be underestimated.

This is an impressive report. One or two people have already passed judgment on it. Nobody can have read it yet except the Prime Minister, who obviously was briefed on it. I have only managed to read the executive summary. There is an enormous amount in the report. It needs further study and I will not pay great attention to any comments until people have had a chance to read the report through and then address the issue of whether there should be a further public inquiry. I have great respect for the noble Baroness and understand why she said that a public inquiry might ensure that we would get to the truth. There are no grounds for saying that until we have seen how close we think Sir Desmond de Silva has got to the total truth of the matter, and considered what could be achieved by going for a further public inquiry. This is what challenged the previous Government and why, nine years on, there has been no progress. This is what they were wrestling with. It is difficult to see what the benefit of a public inquiry would be, and I can see some real disadvantages, not least because there should be prosecutions arising from some of the things in the report. If we go for public inquiry, it would probably prevent that being possible.

[Lord Strathclyde]

My Lords, I very much agree with what my noble friend said about the public inquiry. He has heard what the Prime Minister and I said on that question. My noble friend started by saying that this was an appalling crime. He is right. The key thing for us to remember—this is another thing he said—is that the accusation of state collusion sullies the memory of all those individuals who fought to defend democracy without having to go down this route. That is what makes this so appalling.

Of course I entirely agree with my noble friend that this is a lengthy report that has taken many months to compile. It builds on the work of previous investigations, including that of a distinguished Member of this House. There were a million pages of documents. This is the most comprehensive of comprehensive reports and it requires time to look at it.

On the question of Ministers’ knowledge, de Silva is very clear. He says there is:

“no evidence whatsoever to suggest that any Government Minister had foreknowledge of Patrick Finucane's murder ... nor that they were subsequently informed of any intelligence that any agency of the State had received about the threat to his life”.

There is no evidence at all that any Ministers had any knowledge at the time of Nelson’s targeting activity, or that they were encouraged or directed in any collusive activity with the UDA. That is a very strong statement.

[Baroness O'Loan]

My Lords, the de Silva report is profoundly disturbing with its statement that Sir Desmond is satisfied that Patrick Finucane was identified by a police officer for targeting, that he was targeted, that he was not warned of the risks to him—risks which existed in 1981, 1985 and 1989—despite the extent of the knowledge of the activities of these UDA men, and that the investigation into his murder was repeatedly obstructed—all examples of state collusion. The Prime Minister has rightly apologised yet again to his family for what the Prime Minister described as,

“shocking levels of state collusion”.

Mr Finucane was not involved in IRA activity. He was a lawyer carrying out his professional duties in profoundly difficult and dangerous circumstances. I am sure that Members of this House will again wish to express their sympathy to the Finucane family, just as I am sure that all those upright officers with integrity in the army, the police and the security services will wish to share their sympathy at the pain that the Finucane family must be experiencing again today.

But this was not an isolated situation. Investigation has shown that this pattern of activity was not unique to the UDA in west Belfast. The Prime Minister has stated, and the noble Lord has repeated, that the Regulation of Investigatory Powers Act has established a framework for the authorisation and conduct of agents. However, as Police Ombudsman I found as recently as 2003 that the Surveillance Commissioner was not being properly informed about UVF agents who were engaged in murders, attempted murders and other very serious crimes. Given the very small office of the Surveillance Commissioner, the pattern and nature of the investigations and inspections which are carried out by the Surveillance Commissioner, and particularly the resources available to the Surveillance Commissioner, is the Minister satisfied that there is adequate funding to enable the identification of any police failures in the handling and management of state agents?

This remains a profoundly important question. We have in Northern Ireland ongoing activities of republican paramilitaries, including the recent bomb in Derry. We have ongoing loyalist paramilitary activity. We have the current loyalist disturbances, which have caused huge distress and damage in Northern Ireland. And most recently we have had threats, not least death threats to a Member of the other place, Naomi Long, who serves constituents in East Belfast. This is a profoundly important matter for the future security of the United Kingdom. I thank the Government for what has been achieved thus far. Having read some of the report this morning, I will consider it further.

[Lord Strathclyde]

I am very grateful for what the noble Baroness has said. Again it demonstrates what my noble friend Lord King said about the very real tensions that brought about what happened during that dark and miserable period in Ulster. We are all part of a process of moving on from that. Let me deal with the nub of what the noble Baroness said about other cases. If there was collusion here, what else was going on? The Government will carefully consider the conclusions of the report to assess whether it impacts on any other cases. There have been public inquiries, as the noble Baroness knows, into a number of other cases where collusion was alleged. What we have tried to do here is demonstrate that we are prepared to leave no stone unturned in examining these cases and that, where there has been wrongdoing, the Government are prepared to apologise.

[Lord Dubs]

My Lords, the Leader of the House was slightly unclear when talking about the attitude of the Irish Government. Given that there was a firm agreement between the British and Irish Governments at Weston Park, what is the attitude of the Irish Government to this issue?

[Lord Strathclyde]

I think what I said was that the position of the Irish Government has been well understood, and that they were in favour of a public inquiry. My right honourable friend spoke to the Taoiseach this morning. They will want to read the report as well and come to their own conclusions, but those conclusions are a matter for the Irish Government.

[Lord Empey]

My Lords, I have been reading the report since 8.30 am. I do not understand how the Official Opposition can come to the conclusion that another inquiry is needed when there are over 500 pages to be gone through. The inquiries into the six cases that flowed from Weston Park have required very substantial amounts of expenditure and effort put into finding the truth. Is the Leader of the House aware that if there is to be another inquiry into this case—and I am seeking his assurance now that that will not happen—I have a list of at least 13 other cases involving multiple deaths over a very long time that have just been completely airbrushed out of history? Can the Minister give an assurance that we are going to stop this process of ongoing and never-ending inquiries and concentrate on building a genuinely shared future, where we move forward instead of raking over the coals of the past for ever?

[Lord Strathclyde]

My Lords, the noble Lord is entirely correct in what he says. I understand the way that he says it and the reasons for it. We can spend a great deal of time, energy and money raking over the coals of the past. What we sought to do in setting up this review was to find a distinguished individual with the greatest possible reputation to conduct it. Sir Desmond’s report has now given us the fullest possible account of the murder of Patrick Finucane and the truth about state collusion.

I confirm to the noble Lord that we would not expect any further report to yield more information—it is fully in the public domain. Of course, I recognise that, on all sides, dealing with the past is still a live issue in Northern Ireland. However, there are other opportunities for families who lost loved ones to find out more, beyond inquiries, such as through the work of the historical inquiries team and the coronial inquests. I repeat again what I said a few moments ago: there is a time for us to deal with the past but it is even more important for us to deal with the problems of the future and to engage more and more in maintaining a level of peace for the people for Northern Ireland—all the people of Northern Ireland—so that they can prosper.

Crime and Courts Bill [HL]

Wednesday 12th December 2012 Lords Chamber

Report (4th Day)

16:38

Schedule 17 : Deferred prosecution agreements

Amendment 116DA

Moved by

[Lord Beecham]

116DA: Schedule 17, page 262, line 43, at end insert—
“( ) The Code shall not come into effect until it has been laid before Parliament, and debated by both Houses.”

[Lord Beecham]

My Lords, I cannot claim the prophetic prescience of my biblical near-namesake, so it is entirely fortuitous that the three amendments to which I speak will be debated the day after the announcement of what the media have described as a $1.9 billion, or £1.2 billion, fine imposed by the US authorities on HSBC in relation to charges of money laundering and sanctions busting. I observe in parenthesis that the financial penalty on the company, like those imposed on other banks, is in reality a penalty inflicted on its shareholders and, arguably, its customers. Be that as it may, the relevance of yesterday’s news is that the fine was imposed by way of a deferred prosecution agreement, which embodied other terms, including greater scrutiny of the bank’s affairs—and the involvement of a monitor to be appointed to that effect—and restrictions on bonuses for its top executives.

All three amendments touch on issues that relate to how such matters might be dealt with in the UK once this Bill is enacted. I referred before to the need to carry public opinion with us as we embark on this significant change to the legal system and the way that we deal with corporations whose activities attract breaches of the law and the possibility of substantial proceedings. Amendments 116DA and 116DB facilitate that by requiring a code of practice for prosecutors and any amended code, drawn up, as they will be, by the Director of Public Prosecutions and the director of the Serious Fraud Office, to be laid before Parliament and debated by both Houses. Again I stress that I am not proposing, as I did in Committee, that the code should be subject to the affirmative procedure, merely that it should be debated. I agree with the Minister’s assertion in his letter to me of 7 November that:

“The fundamental principle of prosecutorial independence means that it is appropriate for the code to be issued by the DPP and DSFO rather than it being put on a statutory footing in regulations by a government Minister”.

My concern is that Parliament should be able to contribute to the consultation that the directors have undertaken to conduct rather than that the code should be included after the event in the DPP’s annual report to the Attorney-General. Given the scale of the wrongdoing in the HSBC case and the amount of the financial penalty, this seems to be a sensible way forward, since the public will obviously draw comparisons between what is likely to happen in this country and what happened in America. It reinforces the similar suggestion that I made, but did not press to a vote, in relation to the Sentencing Council’s guidelines on financial penalties. It will be interesting to learn in due course whether the approach adopted under this measure is likely to leave open the possibilities of penalties approaching the scale recorded in the HSBC case. Perhaps the Minister will indicate, without pre-empting the role of the Sentencing Council, what his view is. I do not intend to seek a vote on these amendments, but I hope that the Government will give further consideration to this issue, especially in the light of these recent developments.

The third amendment stems directly from the American experience and legal system. I am indebted to my honourable friend Emily Thornberry, the shadow Attorney-General, for the information that she supplied before and after a recent visit about the practice of the US Justice Department. I spent 35 years briefing counsel, and it has been a unique and pleasant experience to have undergone this role reversal.

Amendment 119A seeks to adopt the practice and wording set out in the United States Attorneys’ Manual. It is a probing amendment. The US law on corporate criminal liability enhances the prospects of successful prosecutions for fraud because corporations are deemed to be vicariously liable for offences committed by their employees during the course of their duties. Here, by contrast, the prosecution must prove that, to quote the legal phrase, the “directing mind and will” of the company was guilty of the offence, and the concept of the directing mind would imply that a board member or senior manager was involved in the illegality.

I assume that the noble Lord, Lord Green, in his former role as chairman and chief executive of HSBC would, of course, have never countenanced, let alone been involved in, the activities that were the subject of the deferred prosecution agreement in America. I assume that the same will be true of other directors of the company and its managers. In this country, a criminal prosecution of the company would have been much more difficult to mount and the incentive to reach a DPA correspondingly reduced if that principle of the directing mind had been applied.

For this reason, Jonathan Fisher QC of Policy Exchange stated in an article in the Times following the publication of the Government’s consultation paper that:

“it is crucial that the proposed legislation provides that a company is vicariously liable for the acts of employees where a prosecutor can show there was fault or dishonesty by the employees concerned. Unless the Government addresses this critical point, the DPA initiative will be a damp squib”.

There is a precedent for making exceptions to the directing mind principle in the analogous field of bribery law. The Bribery Act 2010 establishes strict liability on a company whose employees or associated persons commit an offence in order to obtain business or a commercial advantage for the company. The company can plead by way of a defence that it has adequate systems and controls to prevent the bribery. There are, of course, other examples where companies could be held liable for breaches of statutory duty.

I should perhaps add that the American experience reinforces the view propounded by my noble and learned friend Lord Goldsmith, who is not in his place this afternoon, that the deferred prosecution agreement procedure should apply to individuals, although I would remain reluctant to see such an extension initially, otherwise than in cases where this might facilitate the application of DPAs to cases of economic crime and fraud.

The outcome of the HSBC case throws into stark relief the difference between the US system and what the Bill in its present form envisages, let alone the current state of the law. In particular, of course, there is every incentive in the US system for a corporation to come to terms on a deferred prosecution agreement because there is the ultimate sanction of a criminal prosecution on the basis of vicarious liability if it does not take that course. Since we all wish to see a sufficient incentive to facilitate the introduction of this new system, I hope that that will appeal to Ministers.

It is asking too much of the Minister to come back with a considered response either today or in the very limited time available before Third Reading, but I hope that the Government will take the opportunity to review and, if need be, to consult further on this issue during proceedings in the House of Commons. The proposal would extend beyond the realm of economic fraud but, as has been demonstrated in America, it can contribute to the success of the innovation which the Bill seeks to create. I beg to move.

16:46

[Lord Mackay of Clashfern]

My Lords, I support the change in position made by the noble Lord, Lord Beecham, between Committee and today regarding allowing Parliament to discuss the prosecution code without it being incorporated in a statutory instrument. It might help the Director of Public Prosecutions, the director of the Serious Fraud Office and the prosecuting authorities generally to have the views of Parliament expressed in a debate in Parliament before the code is finally adopted.

[Lord Ahmad of Wimbledon]

My Lords, Amendments 116DA and 116DB revisit an issue that we considered in Committee: namely, parliamentary scrutiny of a code of practice for prosecutors to support the DPA scheme. However, as the noble Lord, Lord Beecham, said, the issue has changed somewhat. In providing for a code of practice for prosecutors in relation to DPAs, the Government have been clear that the intention is to ensure consistency with other statutory provisions relating to guidance for prosecutors on operational matters. The noble Lord, Lord Beecham, referred to HSBC and the related US experience. As has been said previously, the DPA is a new addition to the UK system, and we will be looking to apply it at a future point. However, for now the Government’s position has been made clear.

The code of practice for DPAs, in the same way as the code for Crown prosecutors, will provide guidance on the exercise of prosecutorial discretion in making decisions and on key procedural and operational matters concerning DPAs. The independence of prosecutors is fundamental to the effective operation of DPAs. Therefore, it is entirely appropriate for the code for DPAs to be issued by the Director of Public Prosecutions and the director of the Serious Fraud Office. The Government have absolute confidence in the directors.

I hear what my noble and learned friend Lord Mackay mentioned in support of the points made by the noble Lord, Lord Beecham. However, the Government do not consider it necessary to make the code subject to parliamentary scrutiny. As DPAs become enshrined in UK law, I am sure that we will return to these issues. Indeed, the opportunity remains for any noble Lord to raise this issue through appropriate parliamentary procedures, be they QSDs or any other.

The approach to publication of the code provided in the schedule is wholly consistent with that under Sections 9 and 10 of the Prosecution of Offences Act 1985 in respect of the code for Crown prosecutors. The code of practice for DPAs, both the first and any future versions, will be provided to the Attorney-General by way of the Director of Public Prosecutions’ annual report, and he will in turn lay it before Parliament. The Delegated Powers and Regulatory Reform Committee did not raise any concerns about this proposed approach for the code of practice. The code is an operational document that needs to be responsive to the context in which it operates. The proposed amendments would, in particular, restrict the directors’ ability to amend or update the code as necessary to reflect timely changes in the law or lessons learnt having utilised the DPA process. The key elements of a DPA are clearly set out in the Bill. The code of practice will support the operation of the process, and the directors have committed to consult on its contents.

Amendment 119A would introduce a new and very broad basis for corporate criminal liability. Currently, there is a statutory basis for dealing with specific offending on the part of corporate bodies, for example, statutory provisions exist for dealing with corporate manslaughter, bribery and regulatory offending, such as health and safety rules. There is, however, no legislation which expressly creates general criminal liability for companies. Wider corporate liability is founded upon common law rules which attribute liability to a corporate body where the conduct is on the part of the directors, officers and those who occupy roles at the corporate centre. However, reliance is often placed on individual liability where there are many punishments and sanctions available to deal with economic or financial wrongdoing. This is, to a degree, due to the fact that corporate prosecutions are much more difficult and complicated than individual prosecutions and furthermore cases often involve lengthy and costly investigations.

The noble Lord, Lord Beecham, also referred to this point in relation to the Bribery Act 2010. The extent to which the current law of corporate criminal liability can be improved upon by employing the new “failure to prevent” formulation incorporated in the Bribery Act 2010—which the noble Lord’s amendment seeks loosely to emulate—is a matter for long-term examination. As I am sure the noble Lord, Lord Beecham, appreciates, the Bribery Act has been in force for less than 18 months. It is appropriate to allow the provision in the Act to bed down before we examine the extent to which the formulation could be usefully rolled out into other areas. However, I assure the House that the Government are committed to ensuring that investigators, prosecutors and the courts have the right tools to address financial and economic crime effectively, as is evidenced by Schedule 17.

DPAs have been specifically designed to ensure that corporate bodies are held responsible for alleged financial or economic wrongdoing on their part by providing an alternative means of disposal and a broader scope of sanctions. We remain satisfied that it is correct for the Government to focus on offering an additional route for holding to account organisations that are willing to engage in the process or otherwise face prosecution rather than on the basis of the liability itself. The noble Lord, Lord Beecham, also asked me to speculate on any level about the Sentencing Council and what it may arrive at. I am sure he appreciates that it would be totally inappropriate for me to speculate in that regard. In light of my explanations, I hope that the noble Lord, Lord Beecham, will withdraw his amendment.

[Lord Beecham]

My Lords, I find that slightly disappointing. The Minister did not address the issue of incentivising the DPA process, which is precisely what Amendment 119A would achieve. However, as I indicated, this is a probing amendment. The probe does not seem to have gone in very far, but in the circumstances, I prefer to withdraw both it and the amendment.

Amendment 116DA withdrawn.

Amendment 116DB not moved.

Amendment 116E not moved.

Amendment 117

Moved by

[Lord Taylor of Holbeach]

117: Transpose Schedule 17 to before Schedule 14

Amendment 117 agreed.

Amendment 118

Moved by

[Lord Taylor of Holbeach]

118: Before Clause 26, insert the following new Clause—
“Immigration cases: appeal rights; and facilitating combined appeals
(1) In section 84(1)(b) of the Nationality, Immigration and Asylum Act 2002 (grounds of appeal: decision unlawful because of race discrimination etc by Northern Ireland public authority) after “1997” insert “or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act”.
(2) In section 99 of that Act (pending appeals lapse on issue of certificates)—
(a) in subsection (1) (list of provisions under which certificates may be issued) omit “96(1) or (2),”, and(b) in the title, for “96 to” substitute “97 and”.(3) For section 47(1) of the Immigration, Asylum and Nationality Act 2006 (decision that person is to be removed from the United Kingdom may be made while person can bring appeal) substitute—
“(1) Where the Secretary of State gives written notice of a pre-removal decision to the person affected, the Secretary of State may—
(a) in the document containing that notice,(b) in a document enclosed in the same envelope as that document,(c) otherwise on the occasion when that notice is given to the person, or(d) at any time after that occasion but before an appeal against the pre-removal decision is brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002,also give the person written notice that the person is to be removed from the United Kingdom under this section in accordance with directions given by an immigration officer if and when the person’s leave to enter or remain in the United Kingdom expires.(1A) In subsection (1) “pre-removal decision” means—
(a) a decision on an application—(i) for variation of limited leave to enter or remain in the United Kingdom, and(ii) made before the leave expires,(b) a decision to revoke a person’s leave to enter or remain in the United Kingdom, or (c) a decision to vary a person’s leave to enter or remain in the United Kingdom where the variation will result in the person having no leave to enter or remain in the United Kingdom.””

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I shall speak also to Amendment 124, which is in the group.

The new clause to be inserted by Amendment 118 makes three separate changes to the legislation governing immigration appeals. The first two respond to amendments tabled in Committee by my noble friend Lord Avebury.

Subsection (1) of the new clause will reinstate a ground of appeal against an immigration decision on race relations grounds. Such a ground of appeal existed prior to the commencement of the Equality Act 2010, but was removed by the consequential amendments made under that Act. The Government’s stated policy remains that there should be a ground of appeal on race relations grounds and we have therefore brought forward this amendment to reinstate a ground of appeal on those grounds.

Subsection (2) of the new clause corrects an anomaly in Section 99 of the Nationality, Immigration and Asylum Act 2002 identified by my noble friend Lord Avebury in Committee. Sections 96 and 99 of that Act are designed to stop repeated appeals being used to frustrate the immigration system. Where the Secretary of State makes an immigration decision that carries a right of appeal, she may also certify that decision on the basis that the application relies on issues that were, or could have been, raised earlier or dealt with at a previous appeal. The effect of certification is to prevent an appeal being brought. However, there is a lack of clarity within the 2002 Act about the effect of certification on appeals that are already under way.

Section 96(7) of the 2002 Act states that a certificate has no effect in relation to an appeal that is already under way, but Section 99, which makes provision for the interaction between certification and appeals in progress, states that a certificate would cause the appeal to lapse. It is government policy that a decision to certify should not cause an appeal that is already under way to lapse, and the contradiction needs to be resolved so that the effect of the legislation is clear. This technical amendment to Section 99 of the Nationality, Immigration and Asylum Act 2002 therefore seeks to clarify that certifying a decision under Section 96 of that Act does not cause a pending appeal to lapse. I thank my noble friend Lord Avebury for bringing that issue to the attention of the House.

Subsection (3) of the new clause will clarify when a decision to remove a person from the United Kingdom can be given in relation to a decision to refuse to vary leave, to curtail leave or to revoke leave. As noble Lords will be aware, this House has considered this issue before. In 2006, the House supported an amendment which then became Section 47 of the Immigration, Asylum and Nationality Act 2006. It provided a power to make immigration removal decisions where a person has statutorily extended leave to remain in the United Kingdom. Statutorily extended leave is leave which continues where an appeal can be brought against a decision to refuse to vary, to curtail or to revoke leave.

The intention behind Section 47 was that decisions should be made simultaneously, thereby allowing any appeal against removal to be heard at the same time as the appeal against the variation or curtailment decisions.

However, the Upper Tribunal in the recent case of Ahmadi concluded that secondary legislation prevents the simultaneous service of these two decisions. It concluded that the removal decision cannot be made until written notice of the decision to refuse to vary a person’s leave to remain has been given to that person. The impact of this decision is that Section 47 no longer works as it was intended, with the consequence that a removal decision can only be made after the initial appeal against a refusal to vary leave, or a decision to curtail leave or revoke leave, had been heard. The removal decision itself would then generate a second right of appeal. The effect will be to add in unnecessary, and indeed unacceptable, delays and costs into the appeals and removal process.

We are challenging the Upper Tribunal’s decision before the Court of Appeal but we have concluded that we should act swiftly to put the effect of Section 47 beyond doubt and restore the construction of that section which Parliament intended when enacting the 2006 Act. The consequential amendment to Clause 33 ensures that the provisions made by the new clause can be extended to any of the Channel Islands or the Isle of Man by Order in Council. I beg to move.

17:00

[Lord Avebury]

My Lords, I am most grateful to the Government for considering the matters raised in my Amendments 148B and 148D in Committee, and for coming up with this new clause which addresses them—as the Minister has explained—in subsections (1) and (2). It appears that subsection (3) of the new clause deals with the problems identified by the Upper Tribunal in the case of Ahmadi, as my noble friend the Minister said, and also that of Adamally and Jaferi. In Ahmadi, Upper Tribunal judge Mr Lane said:

“It would clearly be possible for Parliament to amend s.47 of the 2006 Act, so as to enable the respondent to make simultaneous decisions ... Unless and until that is done ... In practice ... the present usefulness of s.47 is highly questionable”.

This is, I suggest, a good example of the complexity of our immigration law, and the risks incurred by getting the language wrong. If the original Section 47(1) of the Immigration, Asylum and Nationality Act 2006 is being amended, it has taken senior judges and Parliament six years to remedy the flaws that made this particular section unworkable so that it was impossible to remove the persons concerned who had no right to remain in the UK.

We do not even know whether it is indeed the original Section 47(1) that we are amending because the website that is intended to provide your Lordships with the text of Acts as amended carries the warning message:

“There are outstanding changes not yet made by the legislation.gov.uk editorial team to Immigration, Asylum and Nationality Act 2006”.

This is an unsatisfactory situation, which does not apply only in this instance, and I hope that my noble friend might say something about the steps being taken to ensure that legislation.gov.uk is brought up to date, so that your Lordships and another place know what they are being asked to amend.

[Lord Lester of Herne Hill]

My Lords, perhaps I may add to what my noble friend has just said. My wife is an immigration and asylum judge and from time to time she and her colleagues are sent for training in order to try to understand what the Home Office is producing. I hope that she does not mind my mentioning this, but she and her colleagues find themselves in a quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office. There are two people in the Chamber who will understand these amendments—one is the Minister and the other is my noble friend Lord Avebury. I do not understand them. For me to understand them I would have to read the three different Acts of Parliament, all of which are put in play in these amendments, and I would have to listen to and read again what has been said by the Minister. The net result would be that we will continue to have a network of regulations that it is quite impossible for ordinary men and women, including Members of this House, to understand unless and until the Home Office does what we have repeatedly asked it to do for the past many years—to consolidate the legislation into a single measure that can be understood by users, whether they be would-be immigrants, refugees or asylum seekers, or lawyers, NGOs or the public. At the moment it is almost incomprehensible and lacks, therefore, legal clarity. I very much hope that, when I do understand these amendments, what I have just said may be listened to by the Home Secretary and other Ministers who will instruct their officials, please, to come up with consolidating legislation that we can understand.

[Lord Taylor of Holbeach]

My Lords, I would like to comment on that because one of my responsibilities within the Home Office is regulatory reform. I agree with my noble friend that no area is more complex than the whole business of the Immigration Rules and the procedures surrounding them. The noble Lord, Lord Curry of Kirkharle, is aware of my involvement in this—indeed, the Better Regulation Executive is seeking to support the Home Office in this endeavour. I will bear in mind the comments of my noble friends because I am a great believer in the law being as simple and as clear as possible so that people can understand and operate it in the most effective way. I note very much what my noble friend has said. I hope he will understand that these amendments are designed to achieve the purpose of clarifying the law in areas of ambiguity.

Amendment 118 agreed.

Clause 26 : Appeals against refusal of entry clearance to visit the UK

Amendment 118ZA

Moved by

[Baroness Smith of Basildon]

118ZA: Clause 26, page 23, line 26, at end insert—
“(6A) After section 50(2)(c) of the 2006 Act (procedure), insert—
“(2A) In respect of any application or claim in connection with immigration (whether or not under the rules referred to in subsection (1) or any other enactment) the Secretary of State may make provision for the communication of an immigration officer with the applicant before a decision is taken in respect of that application or claim.
(2B) Provisions under subsection (2A) may include communication with the individual so as to obtain additional information relevant to their application or claim.”
(6B) Before the coming into force of this section, the Secretary of State must make provision for communication between an immigration officer and the applicant for the purposes of obtaining further necessary information not included in the original application, as provided for under section 50(2A) and (2B) of the 2006 Act.”

[Baroness Smith of Basildon]

My Lords, perhaps this is a timely amendment in the context of the debate that we have just had and the comments from the noble Lord, Lord Lester of Herne Hill, about having some sort of common-sense approach so legislation could be easily understood. I have called Amendment 118ZA the common-sense amendment, which I hope encourages noble Lords to support it. As the noble Lord, Lord Lester of Herne Hill, says, there is sometimes precious little common sense in how we look at legislation.

This amendment would require the Secretary of State to set in place a procedure to allow for entry clearance officers to communicate—I know that that is a radical step—with applicants during the application process, particularly if the applicant has not provided all the information needed in applying or if there is a need to clarify what may be a minor technical detail. The amendment was inspired by the details of the many cases of visa applications that have been sent to me by individuals over the past few months following debates we have had in this House, and indeed in Committee, on immigration issues.

Many of those who have contacted or written to me have been exasperated by their experience with the UK Border Agency. Whether or not their case has merit, and whether or not their case has been or will be successful, the bureaucracy that should be in place to create logic and order to the process can have the opposite effect. Ministers have said that one of the reasons for the changes they are proposing to the legislation is that applicants do not provide all the information that they should be aware of. However, the fact is that, for the vast majority of people who make such applications, there is confusion and a lack of clarity around the rules. This means that applicants can be refused on the most minor of technicalities or simply because they have not included a single document.

The Independent Chief Inspector of Borders and Immigration, John Vine, raised this very point in his review last year. His report, Entry Clearance Decision-making, noted that in 16% of the cases won on appeal that he reviewed, applicants had been refused on the basis of failure,

“to provide information which they could not have been aware”,

was required at the time of making their application. Even though Ministers consider that they should have been aware, clearly they were not aware. That is a definite example of the lack of clarity about what is required. For further evidence as to why clarity is required, in 33% of the successful appeals that John Vine reviewed, the entry clearance officer had not properly considered the evidence that had been submitted.

Family members of British citizens who want to come over for a visit—perhaps for a wedding or to visit a sick or ailing relative—are being refused entry because of poor decision-making and a lack of clarity over the application process. The Government’s proposal to scrap the right of appeal leaves applicants without any indication of how they should amend their application the second time around, or even whether the same errors of omission or mistakes will continue to be made. That will do nothing to address the problems that the Government have identified. It is also difficult to see how it will reduce costs.

The Government have also conceded this argument. The former Minister for Immigration, now the Minister for Crime and Policing, the right honourable Damian Green, based the argument for scrapping appeals for family visas on the fact that 63% of appeals,

“are lost entirely because of new evidence introduced at the appeal stage”.

Obviously, if the applicant had been clear in the first place as to what was required, he or she would have submitted that information or evidence the first time round. Applicants do not want their application delayed or the uncertainty increased; they want to provide the accurate information. They have not provided it only because of a lack of clarity about what is required.

This problem has got worse. The success rate of appeals against family visit refusals has risen from 19% in 2004 to 37% in 2010. The latest report from the independent chief inspector about the backlog of 147,000 immigration and asylum claims at the UK Border Agency shows that at one point there were 100,000 items of unopened post, including 14,800 recorded delivery letters. This is a shocking state of affairs. It shows that the information being sent on is not being examined adequately.

I stress that I am not laying the blame on entry clearance or immigration officers. I have enormous sympathy with them; they are under huge strain. The Government have cut 5,000 staff from the UK Border Agency, so the workload of individual officers is increasing. The increasing backlog is putting on additional pressure. However, instead of seeking to deal with the chronic problems in the decision-making process, the Government have chosen to scrap appeals entirely. It could be argued that this is an easy option, rather than an effective one. One of the things that I was most struck by in the letters and e-mails I have received—and there have been a very large number of them—is that so many of those errors could have been sorted out relatively easily and more straightforwardly through better communication between the UK Border Agency and the applicant.

I have permission to give an example from one man who has contacted me. I will call him Mr H. However, I can give the Minister the details—he has had information from this gentleman previously. He is an intelligent and articulate British citizen, married to a lady from overseas. They could not understand why their application had been rejected, because they had passed the many hurdles that had been set for them, including the language test. They are now desperate to be living together as man and wife. It was only after I passed the information to the Minister’s office—for which I am grateful; he passed it on to the Minister for Immigration, and the noble Lord, Lord Avebury, also took up this particular case—that Mr H was told what information he had not included. He has since submitted that. However, the lack of clarity about what exactly was required meant that before he received that clarification—and he sent numerous e-mails to the UKBA asking for clarification of what was required—he scanned and sent hundreds of pages because he was so nervous about not including the correct information. He wanted to ensure that the right information was received but he could get no guidance from the UK Border Agency. He then wrote to me that the border agency had lost the appeal. I am pleased to say that it has now been found and he is hoping for a decision before 22 December, when he is returning home to the UK. He hopes that his wife will be able to return with him. Not only has that whole process involved a great deal of stress and worry for him and his wife, but think of the pressure on the overworked immigration officers who have had to consider his first application, deal with his inquiries about what was required for the appeal, and then consider the appeal, which apparently included hundreds of pages of unnecessary information because no one told him what information was required, and he was anxious so he included far too much. His frustration about the whole process is very clear.

Would it not have been easier and cheaper for all concerned if the entry clearance officer had been in a position to contact Mr H originally to let him know what information was missing and give him a certain number of days in which to supply it? That is why we call this a common-sense amendment—it would save time, money and stress.

17:15

One of the reasons why so many people are so concerned about the scrapping of the appeal process is that by appealing the decision the applicant can keep the case alive with the UK Border Agency, and that often allows them to get the support of their Member of Parliament who can communicate with the Home Office on their behalf to get to the bottom of a refusal decision and why it has been made. The noble Baroness, Lady Hamwee, made this very same point in Committee:

“Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort”.—[Official Report, 4/7/12; col. 696.]

The amendment seeks to implement such a mechanism before appeals for family visit visas are scrapped altogether by the Government. I understand that they are looking to cut the cost of the process, but I am concerned that they are just taking the easy way out without dealing with the chronic problems crippling UKBA’s decision-making. The amendment seeks to ensure a fairer and more accurate system so that when appeals have been scrapped, applicants can feel confident that they will not be refused out of hand for simply failing to include one document or for a simple error on a form, but rather there will be a process by which they can talk to someone, or someone else can contact them and tell them what the problem is, and it can be far more easily resolved. I beg to move.

[Lord Avebury]

My Lords, I agree with the noble Baroness. A great many of the refusals of applications for leave to enter have been due to misunderstandings about what information is required, and there ought to be a simple procedure for rectifying elementary omissions. I think that I recognise the particular case that she mentioned, because that person has already been in touch with me as well. He made every effort by sending numerous e-mails to the people dealing with the case to try to find out exactly what omission he was guilty of, but was never successful in establishing what further information he needed to provide.

Clause 26 removes the right of appeal against the refusal of a visa to visit family members, except where the appeal is brought on racial discrimination or human rights grounds. I had hoped that in the five months since we considered this matter in Committee, and in the light of the arguments that we advanced then, the Government would have had second thoughts about this clause. It is disappointing to see no sign of that on the Marshalled List.

I shall explain why we felt the need to return to this matter. The Government’s hostility to the right to family life is exemplified by the making of new Immigration Rules making it far more difficult and expensive for spouses and elderly dependent relatives to join heads of households in the UK, reducing the number by an expected 35%, over which the Immigration Minister is already crowing. Clause 26 turns the screw further by preventing appeals that would have been successful under the law as it now stands. I pointed out in Committee that if the argument for Clause 26 was that the number of appeals had risen to far greater levels than were expected when the right of appeal was restored in 2000, as was argued before the Home Affairs Select Committee, the obvious remedy was to get UKBA’s decisions right in the first place. Almost one-third of them are overturned, according to my noble kinsman Lord Henley in Committee, involving the taxpayer in a great deal of unnecessary expense. My noble kinsman said that taking away the right of appeal would lift the burden of processing 50,000 appeals from visa staff, but that was based on the assumption that officials would continue to reject bona fide applications at the same rate as they have in the past. We are told constantly that UKBA is undergoing processes of reform, which will enable them to be more accurate in the first decisions that they make.

After the case of Alvi, which your Lordships have discussed, the information required to be submitted with the visa application is now set out in detail in the rules themselves, so that in theory, there should be fewer cases where an applicant has omitted a particular document. However, considering the volume and complexity of the rules, which was mentioned by my noble friend Lord Lester on the previous amendment, it is inevitable that some applications will be refused for that reason. The Government suggest that persons who have omitted a document should put in a new application rectifying the omission at a cost of £78. That may be a trivial sum to my noble friends on the Front Bench, but it is a lot of money to a poor farmer in Gujarat or Sylhet.

I take the point that a new application is less expensive and faster than an appeal; but where the decision-makers have made an obvious mistake, I do not accept that a genuine family visitor should have to pay twice, and suffer the complications affecting future travel, because the refusal has to be declared not only in the UK but to any other intended destinations to which the applicant may travel. Therefore, it is a blot on the person’s copybook that he will want and need to remove if he is to go anywhere without hindrance.

If a person wins the appeal, it is likely that the tribunal will make a costs order against the Secretary of State, so that the appeal will be free in the end. Moreover, if the refusal was due to disbelief that the applicant would return home at the end of the visit, it is only too probable that a fresh application would yield the same result. Only by appealing can the person attack the errors that led to the original refusal, and it was for that reason that I advised Mrs N from Beirut—whom I think was the person that the noble Baroness was talking about a few minutes ago and whose case I mentioned in Committee—to appeal as well as to ask for the original decision to be reviewed.

Therefore, I am afraid that the reasons that were given by my noble kinsman for thinking that an appeal may not be the best remedy for an unjustified refusal do not hold water. I hope that in the light of that consideration, there should be a simple process that would enable the applicant to lodge supplementary evidence supporting the validity of any document or statement which is challenged, rather than having to start again from scratch.

[Lord Lester of Herne Hill]

My Lords, many years ago, in 1967, I did the first case in Strasbourg against the United Kingdom: a case called Mohamed Alam & Mohamed Khan. Sir Roy Wilson had produced his report advocating an appeal system. It was as a result of the Strasbourg case and Sir Roy Wilson’s report that the immigration appeals system was first introduced —a system which has gone on until now. I strongly support the explanations and powerful speeches given by the noble Baroness, Lady Smith, and my noble friend Lord Avebury.

What is the situation at the moment? Instead of there being a proper process at first instance before there is an appeal—a process of proper decision-taking based upon the kind of common-sense approach that the noble Baroness, Lady Smith, is advocating—mistakes are made quite frequently. When the appeal comes to someone who is an immigration and asylum judge, often no presenting officer is produced by the Home Office to present the government case or there is no one to represent the applicant. My wife will come home at the end of the day and say, “I have now for the first time to take a proper decision myself as though I were doing it at first instance because I have nobody to help me on either side and I find that the initial decision is defective. I now, on appeal at great public expense, have to correct mistakes which should not have been made in the first place at first instance. The only way in which those mistakes can be corrected is by having an appeal system. It is the only safeguard”.

The system now resembles the fairy story, The Little Prince, which noble Lords may remember, in which the boa constrictor swallows a sheep. One sees the lump of the sheep passing along the boa constrictor. The sheep is the process of taking decisions in this area. Instead of the process being properly determined at first instance and making the need for appeals rare, a great lump, the creature, passes along the snake, which leads to a first-instance appeal, an upper-tier appeal and judicial review.

The remedy is simply the common-sense one. One has at first level as much information as possible for a well informed decision. The advantage of the amendment tabled by the noble Baroness, Lady Smith, is that it would at least enable proper communication between the officer and the applicant or the applicant’s representative. I can see no argument against that, especially if we were to abolish appeals, which I very much hope will not be the case.

[Lord Taylor of Holbeach]

My Lords, I will address Amendment 118ZA in the name of the noble Baroness, Lady Smith. Before I do so, perhaps I may say that I understand that the contributions made by the noble Baroness and my noble friends Lord Avebury and Lord Lester are designed to build a more efficient system. In my response, I hope that I can demonstrate that that also is the Government’s intention.

The UK Border Agency publishes supporting documents guidance specifically for family visitors. It provides extensive guidance in several languages on the type of documents that customers should consider submitting. Perhaps I may elaborate on that. The UKBA provides guidance on how to fill in the visa application form. It is translated into six languages—Arabic, Chinese, Hindi, Russian, Thai and Turkish. Improvements are also being made to the online visa application process, which will be completed in May 2013. All that is available on UKBA’s website for those wishing to make applications. I should also tell noble Lords that if a refused application is received, the UKBA writes to the refusee to tell them what is missing from their documentation. I believe that this is a valuable way to make sure that the process is as user friendly as possible.

If the amendment in the name of the noble Baroness, Lady Smith, was successful it would put a significant resource burden on entry clearance officers to make inquiries with the minority of applicants—it is a minority of applicants—who do not provide sufficient information with their application. The Government have not been persuaded by the noble Baroness that this is right. Of course there is work to do on continuing to improve the application process. However, the onus must be on applicants to satisfy visa officers that they meet the requirements of the Immigration Rules and to ensure that they have prepared the application properly before submitting it.

17:32

As drafted, the amendment would not just affect visit visa applications, but all applications, including those where the claimant still has the full right of appeal. That would place an unreasonable burden on the UK Border Agency and would have the effect of transferring the costs of incomplete applications on to the taxpayer. I hope that the noble Baroness will also be informed by my comments on the amendments proposed by my noble friend Lord Avebury.

It is important that I stress that the Government understand that family visit visas can help maintain family links, which is why we granted around 370,000 family visit visas in 2011. However, I do not agree that Clause 26 should be removed from the Bill. For a start, the appeal right is not of great benefit when people seek to come to the UK for specific family events. Based on the short-term nature of the visa, it seems logical that a large proportion of applications will be for specific family events. The appeal process at present can take up to eight months to be concluded, by which time that event is more than likely to have passed. In contrast, a reapplication procedure to the UK Border Agency will typically result in a decision within 15 days. Furthermore, every refusal is accompanied by a detailed letter, as I have said, which sets out the reasons for that refusal, and which can be addressed in a reapplication. As long as no deception was involved, each subsequent application is treated entirely on its own merits.

The amounts involved are considerable. For the taxpayer, removing the full right of appeal will result in savings of £107 million over 10 years from enactment. It will free up resource in the UK Border Agency and in Her Majesty’s Courts and Tribunals Service, allowing greater priority to be given to cases that have far-reaching impacts for the individuals involved and for society in general, such as asylum claims or the deportation of foreign criminals.

In Committee, and today, noble Lords have said that this appeal right should be retained because decision-making by entry clearance officers is poor. As my noble friend Lord Henley pointed out in Committee, we do not accept that this reflects our performance on family visa visit cases. Our analysis suggests that the vast majority—over two-thirds—of family visit visa appeals that were allowed were successful partly on the basis of new evidence submitted after the original application was made.

Quite simply, the tribunal makes a different decision based on different information. That is not a sensible or proportionate use of the appeals system, which is more time-consuming and protracted than a fresh application system. If applicants have additional information that they wish to provide in support of a visa application, they should reapply. The appeals system should not be used as a second application, not least as it is more time -consuming, as I have said, and can be more expensive.

[Lord Avebury]

Will my noble friend deal with the point I made? The exercise of the right of appeal is not only for the purpose of getting the decision reversed but to prevent there being a blot on a person’s record, which may seriously hinder their future ability to travel anywhere?

[Lord Taylor of Holbeach]

I do not accept that at all. If someone’s application to visit this country is refused, then I regret to say that it must be because either they have failed to fill in the application correctly or there are substantial reasons why they should not be allowed to make that visit. I cannot accept the premise of my noble friend’s argument.

The Government are not persuaded by the case for my noble friend’s Amendment 118A. To accept it would introduce a right of appeal for people who have, for example, practised criminal or other dishonest behaviour, while those who have acted honestly would not have an appeal. It cannot be right that that type of behaviour is rewarded.

Regardless of whether an application is refused, relying on a general ground of refusal, the applicant is free to re-apply setting out why the previous refusal was unjustified. All refusals on general grounds are authorised or reviewed by entry clearance managers before being served. If refused under general grounds, it is also open for an applicant to make a fresh application by providing new evidence which an entry clearance officer will take into account. A refusal under paragraph 320 of the Immigration Rules may also be challenged by a judicial review. Prior to making decisions, all entry clearance officers have to pass a three-week training course, part of which focuses on making decisions using paragraph 320 of the Immigration Rules. There is also an e-learning package specifically relating to the sub-paragraphs of paragraph 320 that may lead to an applicant’s future applications being automatically banned. This package is completed by entry clearance officers during their induction training on arrival at their decision-making post.

I think I have demonstrated that the process is thorough and that there will be considerable advantage to the efficiency of the system and, indeed, to applicants themselves if the Government’s proposals are approved. I trust that I have been able to satisfy my noble friend.

[Baroness Smith of Basildon]

My Lords, the Minister has always been generous with his time and courteous in his response, but I am sad that he is also disappointing. He seems to have relied on existing guidance being adequate and user-friendly. I thought that my comments that the genuine mistakes that are made could be more easily rectified than they are under the current process or the process proposed by the Government indicated that it is not quite user-friendly. No matter how many languages are used, if people do not understand what is required of them they cannot provide it. Perhaps the Minister thinks the guidance is adequate. If it were adequate, applicants would submit all the information required. There is no interest for applicants to make a mistake or not to supply something that they should.

It beggars belief and is against natural justice that the appeal process can be scrapped and that the Government are not taking steps to improve the original decision-making when the figures show that 37% of appeals are successful.

[Lord Taylor of Holbeach]

The allegation that we are not taking steps to improve the original decision-making has been refuted by what I said in my response to the amendments. I do not want to make an argument out of this issue, but the Government are very much focused on trying to ensure that the decision-making process is efficient and fair to applicants, as well as to taxpayers.

[Baroness Smith of Basildon]

I do not doubt that that is the Minister’s intention, but when we hear that the success rate of appeals against family visit visa refusals has risen from 19% in 2004 to 37% in 2010, that does not sound as if the system is getting more efficient, rather that the system is less efficient.

The point I am making is about removing the appeal process at that time. We heard from Sir John Vine about the huge backlog of cases that are currently in the system. There are 100,000 envelopes unopened, including 14,000 containing recorded delivery information. I think that our amendment is a common-sense approach. Remarkably, even the noble and learned Lord, Lord Lester of Herne Hill, who takes a legal approach to these things, agrees with me on this point. I am seeking to be helpful to the Minister and the Government. He may think there are times when I am not, but on this occasion I am seeking to be helpful.

The Minister spoke of the letter which is sent to applicants on reasons for refusal. That reason for refusal may be one very minor, technical matter that can easily be resolved via a phone call. I am extremely disappointed by the Minister’s response. I hope he will take this away and consider further the points that I have made. I beg leave to withdraw the amendment.

Amendment 118ZA withdrawn.

Amendments 118A and 118B not moved.

Clause 27 : Restriction on right of appeal from within the United Kingdom

Amendment 118C

Moved by

[Lord Avebury]

118C: Clause 27, page 24, line 17, at end insert—
“(4) This section does not apply if—
(a) the person concerned is stateless,(b) the person concerned has previously made an asylum claim or a human rights claim and been granted leave on that basis, or(c) the person concerned asserts in his or her grounds of appeal an asylum claim or a human rights claim.”

[Lord Avebury]

My Lords, leaving out this clause would ensure that a person who is outside the country when his or her leave is cut short by the Secretary of State retains the right to return to the UK within the time limit for appeal and thus the right to exercise an appeal in country. At issue are cases where a person’s leave is cut short by the Secretary of State under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 when he is outside of the UK at the time of the refusal.

It happens frequently and not by accident that the Secretary of State takes advantage of a person’s absence to issue the notice, knowing that that person will not be able to return to the UK to exercise the right of appeal. At the moment, that person has an in-country right of appeal against refusal. The courts have had to consider what happens when an individual is outside the UK at the time of the refusal. As I say, these circumstances will not arise by chance. The Secretary of State will have waited until the person is outside the country to serve the notice cancelling their leave. The courts have held that the person has the right to return to the UK and to lodge an appeal within the time limit for appealing if he had been within his previous leave to remain.

Clause 27 provides that such a person will be given no opportunity to return to the UK, reversing the decision of the court in the case of MK. I referred to this case in Committee so there is no reason to repeat the details now. I simply remind your Lordships that MK was a Tunisian refugee in the UK, but was in Italy when his status was revoked by the Home Secretary. His right to contest that decision in the UK was upheld by the court. It is that decision which is reversed by Clause 27.

The clause has been amended to restrict the Secretary of State’s power to exclude an in-country right of appeal to those cases where she exercises the power before the person brings his or her appeal. However, this does not address the fundamental injustice in the clause. In Committee, my noble kinsman said that it was,

“wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom”.—[Official Report, 4/7/12; col. 719.]

He ignored the fact that a person stranded abroad without access to legal advice and unable to consult face-to-face with his lawyers or to approach witnesses who might testify on his behalf is generally going to be at an overwhelming disadvantage in challenging the Home Secretary’s decision. My noble kinsman said that legal aid would remain available for most applications for judicial review of immigration decisions, and I would be grateful if the Minister would confirm that it will be available in these cases as well.

I mentioned also the Court of Appeal’s finding in the case of MK that the right to an in-country appeal was “valuable” and the fact that pursuing an appeal that turns on character may depend critically on how the litigant appears in court. I submit that it is wholly unreasonable for persons who may have resided in the UK for many years to be put in this position. We are not seeking to undermine what my noble kinsman referred to as,

“the operational integrity of the Home Secretary’s power to exclude an individual from the United Kingdom”.—[Official Report, 4/7/12; col. 721.]

We simply seek to ensure that in exercising this power to change someone’s life drastically for the worse, the Home Secretary must abide by the rule of law.

If the repercussions of Clause 27 are serious for those to whom it applies in general, they would be exceptionally so for stateless persons, refugees and persons granted humanitarian protection. Therefore, retaining for these persons the right to return to the UK within the time limit for appeal and to exercise an appeal in country is only fair. They will find themselves, and possibly their families also, stranded outside the UK and with no other country to which they can legally resort in safety if this clause goes through.

My noble kinsman said in Committee in response to this amendment that it could provide every individual refused under the provision with an in-country right of appeal, as they would merely need to raise human rights or asylum grounds in their appeal. Proposed new subsection (4)(c) would have this consequence, but of course the appeal would succeed only if the asylum or human rights claim was found on appeal to be justified.

The Government are proposing a hugely oppressive measure of stripping a person of their leave to remain while they are outside the UK and leaving them in limbo. They must accept the need to put in place safeguards. It may not be possible to ensure that no one other than those in genuine need of the safeguards benefit, but if that is the only objection to the amendment, my noble friend should say so and we can preserve at least proposed new subsections (4)(a) and (4)(b) on Third Reading. Those who are already stateless or who have been granted leave to remain on the basis of an asylum or human rights claim are surely not to be deprived of a meaningful right of appeal against a decision that will ruin their lives for ever. I beg to move.

17:45

[Lord Pannick]

My Lords, I support the noble Lord, Lord Avebury. As he said, it is very difficult effectively to pursue an appeal from abroad. As I understand the clause that the noble Lord seeks to amend, the Secretary of State may take advantage of the temporary absence abroad of an individual. He or she may wait for the individual to go abroad, and may act even though the individual may be abroad—as often happens—for compassionate reasons such as the ill health of a child or an aged relative. The clause is very unjust and very arbitrary.

[Baroness Smith of Basildon]

My Lords, when the noble Lord, Lord Avebury, raised this issue in Committee, I raised with the Minister some questions about the process that the Government were seeking to introduce. Like the noble Lord, Lord Avebury, I was not entirely satisfied with the replies I received. In fact, I did not receive responses to some of the questions that I raised. I hope that in the time that has expired since 4 July this year the Home Office has been able to provide some answers to those questions.

The point was raised about someone’s leave to remain being cancelled while they were out of the country. I am still unclear—because I have not had a satisfactory response—about the criteria for cancelling someone’s leave to remain while they are out of the country. Is it a purely administrative decision because the decision-making time has come up for that person—they were going to be denied leave to remain and they happened to be out of the country—or is it the case, as the noble Lords, Lord Pannick and Lord Avebury, suggested, that the Home Secretary will lie in wait for somebody to leave the country, possibly on compassionate grounds, whereupon their leave to remain will be cancelled? It would be helpful to know what the criteria will be and how the decision will be made.

It would also be useful to have information on what proportion of cancelled leave to remain is cancelled when the subject is outside the country as opposed to when the subject is in the country. I asked that in July in Committee and did not receive an answer. There has been some time since July to get that information; I hope that the noble Lord will have it available.

Another issue is the definition of “public good”. The legislation refers to a decision on removing the right to remain as being taken,

“wholly or partly on the ground that it is no longer conducive to the public good for the person to have leave to … remain”.

Is there a definition of when the public good is no longer there, or when it should be decided that there is no public good and that leave to remain should be withdrawn? The Government need to answer questions on this. I was disappointed not to get responses from the previous Minister—I am not suggesting that the present Minister did not answer me in July—and I hope to get some responses today.

[Lord Lester of Herne Hill]

My Lords, the noble Baroness described me as “noble and learned”. I should not be described in that way because I am not a former law officer or Law Lord—and I am not sure about being noble. However, it is true that I look at matters as a lawyer. I cannot help that; it is a problem that comes with 40 years of doing it.

I am interested to know what the Minister’s response would be to the remark made by the noble Lord, Lord Pannick, when he described this as “arbitrary”. That seems to be a correct way of describing it. Can the Minister explain why, if the amendment tabled by the noble Lord, Lord Avebury, were rejected, the Government would not be highly vulnerable to a legal challenge in our courts or, I dare say, the European Court of Human Rights?

[Lord Taylor of Holbeach]

My Lords, we set out in Committee the reasons for Clause 27. It demonstrates a current anomaly in legislation that allows high-harm individuals to return here to appeal the decision to cancel leave, despite being excluded from the United Kingdom by the Secretary of State.

Exclusion from the United Kingdom is a key tool in tackling those who seek to cause harm to the United Kingdom. Exclusion is used to tackle a range of conduct including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion, and the accompanying rights of appeal.

Of course any such decision by the Secretary of State should be open to challenge and review by the courts. No one is denying that. However, the Government believe that, given the nature of these cases, it is wholly reasonable that judicial scrutiny of the facts should be carried out while the individual remains outside the United Kingdom. When noble Lords consider the type of conduct that has led to these decisions by the Secretary of State, it seems to be an entirely reasonable and proportionate proposition.

[Lord Maclennan of Rogart]

The point has already been made in this debate that if such an appeal is made, the appellant is put at a very grave disadvantage as a result of difficulty in communicating with counsel and in speaking to witnesses who may have something to say that is relevant. The rule of law cannot be properly discharged if the Minister cannot find more support for the absence of the appellant.

[Lord Taylor of Holbeach]

I tend to disagree with the noble Lord. I cannot see why it should be possible to allow somebody whom the Secretary of State for the Home Department has decided to exclude to return to this country purely to pursue an appeal against that decision. I do not accept that that is reasonable and that is why we have included this clause in the Bill.

[Lord Pannick]

I am grateful to the noble Lord. Is not the point that however reprehensible the allegations against the individual, if they are present in this country then they are entitled to remain and pursue an appeal? The question is whether, because of the accident that they may be abroad for a day or two for entirely understandable compassionate reasons and because the Secretary of State takes advantage of that absence to make a decision, they should then be unable to pursue an appeal while within the United Kingdom.

[Lord Taylor of Holbeach]

I think we disagree on that. Noble Lords will understand the premise on which the Government are basing their decision. It cannot be right to allow someone to return to this country when the decision has already been made by the Secretary of State that that person is considered to be undesirable to admit to this country and that is the reason for their exclusion. I should perhaps help the debate by giving some figures. Since 2005, 426 individuals have been excluded on the grounds of national security, unacceptable behaviour, serious criminality or war crimes. Annual figures have varied over the years from 111 in 2007 to 40 last year. Incidences of the decision to exclude an individual with an accompanying decision to cancel leave have totalled 30 over that period. The most was seven in one year and the fewest was two. This year to date: nil. I hope that helps noble Lords to put this matter in perspective. The Government have a responsibility for the security of the country and I hope that will carry some weight with noble Lords in this argument.

I will now carry on with what I was intending to say. Clause 27 seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The individual must be outside the United Kingdom at the time of the decision for the Clause 27 provision to have effect, the effect being that on certification the in-country right of appeal under Section 92 of the Nationality, Immigration and Asylum Act 2002 no longer applies to such a decision, which means that the person has an appeal from outside the United Kingdom. To be clear, the individual will still have a full merits appeal but that will be exercisable from outside the United Kingdom instead of from within the United Kingdom. We accept that the power to remove appeal rights from the United Kingdom to abroad must be reserved for highest-harm cases. This is why we have restricted the application of the certification power to individuals where the decision to cancel their leave is based on the Secretary of State’s assessment that their presence in the United Kingdom is not conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of that decision.

Such cases have been, and will remain, the exception rather than the norm. Clause 27 seeks to maintain the operational integrity of the Secretary of State’s power to exclude an individual from the United Kingdom. Such decisions are not taken lightly and are reserved for the highest-harm individuals. It is therefore imperative that such a decision remains operationally effective, pending judicial scrutiny. For these reasons I cannot support Amendment 118D, which seeks to remove Clause 27 from the Bill. Similarly, Amendment 118C could seriously undermine the Government’s ability to secure our borders against individuals who pose a threat to the United Kingdom. The amendment would exclude from Clause 27 those individuals who are stateless, those who have previously been granted leave to enter, those who remain based on a successful asylum or human rights claim, and those who raise human rights or asylum issues in their grounds for appeal. As previously stated, it is right that we provide protection to those in need and the Government remain committed to their international obligations to such individuals. However, the Government also have an important obligation to protect the public from high-harm individuals whose actions pose a threat to national security or the rule of law.

18:00

[Lord Lester of Herne Hill]

I am sorry to interrupt the Minister but I am now genuinely bemused. We know from the Chahal case that the Special Immigration Appeals Commission was set up so that appeals could be dealt with through closed material proceedings, protecting national security and the interests of justice. I welcomed that because I care about national security as well as justice, and that scheme had to be introduced because the European court said so. Now we are in a position where the Government concede that, if the high-harm person is within this country, they should have the necessary right of appeal. The noble Lord, Lord Pannick, made the point that if the high-harm person happens to be abroad for compassionate reasons, it is arbitrary and irrational that that person should not be in as good a position as if he were in this country. Simply using the Home Secretary’s power to say that someone’s presence is not conducive to the public good, which is what happened in Chahal, is arbitrary. That is what is bewildering us. We cannot understand why the interests of national security should not, at this point, understand the needs of the rule of law.

[Lord Taylor of Holbeach]

I am not a lawyer but I am, I hope, filled with common sense. It strikes me as being quite nonsensical to allow an individual back into this country to pursue an appeal against exclusion. The exclusion decision, if I may say so, is taken on grounds that the noble Lord has admitted may well include protecting national security. Indeed, criminality and protecting national security are the only grounds on which high-harm individuals may be pursued. Their right of appeal is not removed. The question is whether they should be readmitted to this country to pursue that appeal. I suggest that is nonsensical and I cannot accept the noble Lord’s position on the matter.

I was explaining that for many of these cases the primary objective is to protect the public from individuals where credible evidence suggests involvement in terrorist-related activity or serious criminality. In other cases, it is to protect the public from individuals intent on inciting others to commit crime or on creating divisions between communities. Therefore, the legislative proposal is designed to target the highest-harm cases, and it is proportionate, for the protection of the public, to ensure that any appeal for which a full-merits appeal right still exists is from outside the United Kingdom.

Amendment 118C would potentially provide every individual refused under this provision with an in-country right of appeal as they would simply need to raise human rights or asylum grounds in their appeal. That cannot be right and for that reason we are unable to support the amendment. I hope that, in the light of my remarks, my noble friend Lord Avebury will understand the drivers behind this clause and why the Government have to ask him to withdraw his amendment.

[Baroness Butler-Sloss]

I have been listening to this debate without any particularly strong views either way. However, perhaps the Minister can assist with this question. On the assumption that a stateless person, for instance, or indeed anyone else who has been refused a return, is outside the country somewhere, how on earth does he or she actually continue an appeal?

[Lord Taylor of Holbeach]

My Lords, the process of appeal is open to anybody and the circumstances in which they have found themselves is a matter for them. This country and its Government have decided that their presence in this country is not conducive to the public good, which I think is a reasonable decision for the Government to make. It is open to challenge through the judicial process and that individual still has a right of appeal. It is not for me to suggest the details of ways in which that appeal should be processed.

[Lord Gilbert]

I, too, have been listening very closely to this debate, with no expertise whatever. However, I take on board the concerns of various noble Lords. Could not the matter be satisfactorily resolved by placing on the person making a decision the requirement to let the individual under suspicion know when a decision is going to be taken?

[Lord Taylor of Holbeach]

I think that would be counterproductive. If the noble Lord thinks through the circumstances of that question, he will understand that.

[Lord Woolf]

Am I right in thinking that this form of appeal from outside the country has been part of the immigration process for a substantial period? In addition, is it not the case that it can be a written process and that forms can be used for the purposes of the appeal?

[Lord Taylor of Holbeach]

The noble and learned Lord is perfectly correct in that regard.

[Lord Mackay of Clashfern]

My Lords, just before my noble friend sits down, I would like to understand the position. Somebody is outside the country having had leave to remain in it previously; the Secretary of State gets information to suggest that that person would be dangerous to the country if he or she returns; and the Secretary of State decides, on that information, that that is so. Is the position then that, in order to comply with the amendment of the noble Lord, Lord Avebury, the Secretary of State would have to allow that person, whom he or she believes to be a dangerous person to the security of the country, back to lodge an appeal? Why should that be? Why should the Secretary of State allow somebody, whom he or she thinks to be a danger to the country, to come back into the country solely for the purpose of appealing against that judgment? If he does come back into the country, there is at least a risk that his activities will not be confined to appealing but may include doing what the Home Secretary has considered constitutes the possibility of danger to the country.

[Lord Avebury]

My Lords, the crux of the matter is that the Minister suggests that credible evidence exists for the Home Secretary to have made this decision that the person has been involved in serious criminality, terrorism and so on. The Secretary of State waits until the person goes abroad for some reason, whether it be for compassionate reasons, as the noble Lord, Lord Pannick, has suggested, or for any other reason, and then pounces—

[Lord Taylor of Holbeach]

I realise we are on Report, but I will just say to the noble Lord that it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem.

[Lord Avebury]

I do not know. The noble Lord has raised this for the first time. It has often been suggested that the Home Secretary does pounce when somebody is abroad for personal reasons. In the case of MK, which I quoted in Committee and mentioned again briefly during this debate, those acting on behalf of MK certainly believed that the Home Secretary deliberately waited until he was abroad before exercising this power.

The Minister was relying on the Home Secretary having credible evidence of this person’s activities being in the nature of serious criminality, terrorism and so on. One has to take that on trust. In nine cases out of 10, this individual is not going to be able to appeal. The individual will be stateless, as the noble and learned Baroness has just suggested, and that was the case with MK. He was a recognised refugee in this country when he went to Italy, I think. He was in Italy when the Home Secretary made the order against him, making it virtually impossible for him to exercise a worthwhile right of appeal.

I know of cases where it has been alleged that somebody’s presence in the United Kingdom is non-conducive to the public good. I had long correspondence with successive Secretaries of State trying to discover the issue in a particular case—that of the leader of the Jammu Kashmir Liberation Front, who was formally a refugee in this country and was declared by the Home Secretary to be non-conducive to the public good after he had been arrested on charges of terrorism and acquitted. Nevertheless, he was sent packing and has not been readmitted to the United Kingdom since then. I made great efforts to persuade Secretaries of State that he is no danger to the public in this country and that his activities as the leader of the Jammu Kashmir Liberation Front have been peaceful, but I have never been able to get behind the decision. The decision that somebody’s presence is non-conducive to the public good is one that the Secretary of State exercises by his or her absolute authority, and it is difficult to challenge.

I am grateful to the noble Lord, Lord Pannick, and my noble friend Lord Lester for the support that they have given to this amendment. I was thinking of testing the opinion of the House. I have decided at this stage not to, but to think further about what my noble friend has said in reply and to consider what methods we have for dealing with this situation. It is a serious flaw in our procedures to force somebody, who is in exile and has no access to lawyers or to witnesses, as my noble friend has just said, to attempt to refute allegations of which he may be only dimly aware. For the time being, I beg leave to withdraw the amendment.

Amendment 118C withdrawn.

Amendment 118D not moved.

Clause 29 : Drugs and driving

Amendment 118E

Moved by

[Baroness Meacher]

118E: Clause 29, page 28, line 24, leave out “controlled” and insert “psychoactive”

[Baroness Meacher]

I shall speak also to Amendment 118GA and shall not speak to Amendment 118G. I also wish to register my support for Amendment 118J, tabled by the noble Baroness, Lady Hamwee.

The aim of Amendment 118E is to clarify in law that Clause 29 is seeking to improve road safety and that whether a drug is controlled is irrelevant in this context. The Government aim to treat driving under the influence of drugs and alcohol on the same basis is to be applauded, but if it is irrelevant to road safety that alcohol is uncontrolled, why should it be relevant whether a stimulant or other drug is controlled? Surely the important point is whether the stimulant is affecting the driver’s safety behind the wheel.

I can illustrate the irrationality of the clause as it stands with an example. We know that when a controlled drug, such as ecstasy, is heavily contaminated, young people will switch to a similar, but uncontrolled drug, a powder, bought over the internet, probably from China. If there are two drivers, one driving dangerously because of the level of ecstasy in their body and the other driving dangerously because of the same level of the legal stimulant in their body, there is no difference in terms of traffic safety between the two drivers. Both are equally dangerous and surely should be charged, presumably for dangerous driving. I ask the Minister either to accept the amendment or to explain to the House why an intoxicated driver on a psychoactive substance, which the authorities simply have not yet had the time to ban—or perhaps they will never get around to it, as it takes them many years—should be treated more leniently than his friend on the same quantity of a controlled but no more intoxicating drug.

18:15

Amendment 118GA deals with my second concern: that drivers should not be arbitrarily stopped and tested for drug use, any more than they should be for alcohol use, if there is no reason to believe that their driving is impaired. I am aware that Section 4 of the Road Traffic Act 1988 covers this point to some degree. However, we know from the expert technical panel advising the Government that:

“There is no universal agreement on how to measure impairment”.

Certainly impairment differs for different classes of drugs, for stimulants, depressants and hallucinogens, for example. I am concerned that if impairment is difficult to identify or measure, the assumption that evidence of impairment must be present before a driver can be stopped could be overridden by this legislation. I ask the Minister to make clear in his response that the intentions of Amendment 118GA will apply; that is, that the requirements before a driver is stopped are that the driver has been involved in a road traffic accident or in a moving traffic offence, or that he is in charge of a vehicle and the roadside evidence suggests that he is impaired due to alcohol or any drug. There is an issue about medicines, which we will come to.

I want to move on to the stage where a driver has been stopped, the required conditions, I hope, having been met. I refer to a recommendation in the Home Affairs Select Committee report in relation to the appropriate maximum permissible level of concentration of a drug in a person’s blood or urine under Clause 29 of this Bill. The Home Affairs Select Committee says,

“the appropriate maximum permissible level of concentration in a person’s blood or urine … should be set to have the equivalent effect on safety as the legal alcohol limit”.

I understand that the Home Affairs Select Committee wants a level playing field between the treatment of those driving with alcohol or drugs and that a zero tolerance approach should be avoided for all these categories of driver. Will the Minister assure the House that the department will not abandon the concentration limits aligned with those for alcohol? If the expert panel concludes that it is too difficult to set such limits, what action do the Government propose to take? One of our difficulties in these debates is that the expert panel has not yet reported and we do not what its recommendations will be so, in a sense, we are having this debate without the key information that we need.

Another matter about which I would be grateful for clarification concerns the expert technical panel’s work. Is that panel considering psychoactive substances that are not medicines? On page nine of its presentation to parliamentarians, it refers to establishing the,

“level of use of illicit drugs and psychoactive medicines by driving population”.

There is no mention here of new psychoactive substances, albeit that more and more young people will be driving under the influences of those substances.

Another issue arising from Clause 29 concerns young people taking cannabis, perhaps weeks prior to being apprehended for driving when suspected of being under the influence of alcohol or drugs. The risk in these circumstances is that the young person will reveal cannabis in their body, yet be unimpaired. In a conversation with officials, I was given some assurance on this point. It was suggested that the testing equipment will be geared to testing the THC level rather than the level of cannabis in the body. I understand that THC remains in the body for a relatively short period, and this could substantially overcome the problem. Can the Minister reassure the House on these points? Will the technical equipment be able to identify the level of THC present and is the Minister aware of how long THC remains in the body?

I want to add my support to Amendment 118J, tabled by the noble Baroness, Lady Hamwee, which seeks to give some protection to patients on long-term medication from the considerable stress of arrest, testing and potential prosecution. I hope that the Minister can agree to the noble Baroness’s amendment. I hope that the Minister can provide further assurance on the Floor of the House about patients with chronic illnesses who need medication long term. Napp Pharmaceuticals rightly points out that such patients should not be placed in the position of having to satisfy an onerous burden of proof that they are indeed safe to drive. I understand from Dr Wolff’s letter that the position is not straightforward, certainly with regard to benzodiazepines, that patients on these drugs are at an increased risk of an RTA when compared with drivers who are not under the influence of benzodiazepines, and that the risk is particularly increased when these drugs are consumed in combination with alcohol. Clearly, patients need to be fully informed about those risks.

In relation to morphine, I understand that the panel is considering a limit which is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine. That is some reassurance, but again if the Minister can elaborate, it would be helpful. The point made by Napp Pharmaceuticals is that the defence in the legislation as it stands applies only once the case has progressed. It will not protect innocent patients on prescribed medications from the stress of arrest and further testing at the start of the process. Does the Minister agree that Clause 29 needs to be amended to cover drivers who are able to show that they have not taken alcohol and who can explain that they are on prescribed medication? Will the Minister consider bringing forward a government amendment to this effect at Third Reading? It would be helpful to be given some reassurance. A zero tolerance approach would be very serious for these chronic patients who need their medication and can drive safely while taking it. I beg to move.

[Baroness Hamwee]

My Lords, semaphore signals made across the Chamber are always excessively polite. I do not want to take too much of your Lordships’ time on these amendments, but that is not to say that I do not think they are important. However, I am aware that some noble Lords may be hoping to get on to another amendment soon.

The letter which some noble Lords have received from the noble Earl, copying us in and updating us—if I can put it that way—on the findings of the expert panel was extremely helpful. However, it confirms not only some of the points to which the noble Baroness referred but that this is very much still a work in progress. At the previous stage, the Minister referred to the vast array of drugs which needed to be considered. That is certainly the case given the existence of controlled, uncontrolled, traditional and designer drugs. Drugs are not as easy to deal with—if that is the right word —as alcohol. The Department for Transport has not yet published the expert panel’s report, which may be more relevant to the next group of amendments, but it has provided some reassurances, albeit they are not yet in the public domain in the normal sense of the word.

I support what the noble Baroness said about looking at the effect of drugs rather than assessing whether they are classed as controlled drugs. Dr Wolff’s very helpful presentation, which some of us were able to attend, explained that the panel’s work is based on an assessment of risk. That, it seems to me, is absolutely at the heart of what the noble Baroness has said. We are all aware that, as regards psychoactive drugs which are not yet controlled and may never be, chemists around the world are looking at old pharmacopoeia and designing new drugs. They will always be ahead of the rest of us in terms of the proper control of these substances.

I support Amendment 118K. I am impressed that the noble Baroness, Lady Smith, has managed to incorporate “knowingly” in the amendment by drafting another paragraph. I struggled to find a way of incorporating “knowingly”. My approach was not as ambitious as hers. My Amendment 118J would insert “substantially” to make paragraph (b) read:

“D took the drug substantially in accordance with any directions given”.

This provision refers to prescribed medicines. I am aware that it is very easy to forget to take a prescription medicine at precisely the right time. I have done that, and I am sure that most other noble Lords have done it. The medicine may state that it should be taken with a meal, but you might have missed the meal. Patients are human, and they forget. They do what they think is best in catching up with the daily dose. The panel said that it was important to strengthen medical information but warned individuals about the risks of consuming the relevant drug and driving, particularly if alcohol is also consumed. It recommended that healthcare practitioners should be better informed about these risks. I am sure that that is right and admirable, but I do not think that it wholly meets the point. As has been said, road safety is involved in this matter. The balance between protection and having the flexibility required to take account of human imperfections is difficult to strike. Again, we are talking about inappropriate risk.

Amendment 118M was suggested by the Joint Committee on Human Rights and concerns spiked drinks. Its report refers to the,

“apparent increase in recent years of incidents of spiking drinks in public places, in particular with so-called ‘date-rape drugs’ … We are also anxious about the impact of strict liability criminal convictions on individuals’ CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing”.

The committee states earlier in its report that the point may have been made that a drink has been spiked. It is not impressed by the Government’s objection to permitting a “spiked drinks” defence. The committee states that,

“the Government’s objection does not hold good if such a defence imposed the legal burden of proof, as opposed to the evidential burden of proof, on the defendant: that is, if the Bill provided for a defence only if the defendant can prove that the drug was present in their body due to the intervention of a third party without the defendant’s knowledge or consent. We are concerned that the new strict liability offence as presently drafted is incompatible with the presumption of innocence in the absence of a spiked drinks defence which casts the legal burden of proof on the defendant”.

Therefore, the committee recommended this amendment to your Lordships and, indeed, to Parliament.

[Lord Walton of Detchant]

My Lords, I wish to speak briefly in relation to this group of amendments and Clause 29, largely in order, I hope, to receive reassurance from the Minister.

A number of medical bodies and a pharmaceutical company have drawn to my attention the possibility that this legislation and the testing systems could mean that patients taking legal medication for chronic pain might well face prosecution. Patients with chronic pain well established on a stable dose of prescription or over-the-counter opioid analgesics may have levels of metabolites in their system well above any threshold used for roadside or police station testing, even though such levels of these metabolites would not in any sense impair their ability to drive. Patients driving while taking these remedies might then be subjected to the threat of criminal prosecution or, at the very least, might face stressful allegations and the onerous burden of proving that they were not impaired and that there was no other reason why they should not be driving.

The defence included in the legislation is welcome. Subsection (3) of proposed new Section 5A states:

“the specified controlled drug had been prescribed or supplied to D for medical or dental purposes”,

and that,

“D took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied”.

That is very helpful, but the concern that has been drawn to my attention is that, although that defence sounds absolutely solid, it would be available only once a case has progressed. It might therefore not protect innocent patients from the stress and inconvenience of arrest, further testing and potential prosecution. The wording of the defence does not put the burden of proof on the prosecution; the onus is on patients to show that they took the prescribed medication in accordance with instructions. This might well prove to be a difficult task, and it would be unjust to criminalise an innocent patient as a result of a technicality. Will the Minister reassure me that this particular clause is strong and solid enough to avoid that problem?

18:30

[Baroness Smith of Basildon]

My Lords, I shall speak to Amendments 118H, 118K and 118L. I say to the Minister at the outset that we totally support what the Government seek to achieve here. We appreciate that this is not a drugs amendment, it is a road safety measure, but the Minister will have heard from the comments already made that there is support for the Government’s intention but also some concerns about how it would operate in practice against those who are not the legislation’s targets. Drug-driving is a problem that we are all incredibly keen to see addressed. I refer to a case that the Minister will know well, of 14 year-old Lillian Groves, who was run over and killed by a driver who had taken drugs. This illustrates the importance of ensuring that the police have every tool available to tackle those who take illegal drugs and then drive, creating a danger to themselves and others. My concerns are not about the principle of what the Government seek to achieve, but—as the noble Lord, Lord Walton, and the other noble Baronesses have said—its implementation. We need to ensure that the legislation hits the right target and does not affect the innocent on prescribed medication. We have to get it right.

I thank the Minister for the briefings that he has provided and for the opportunity to meet him and his officials. I hope he can say enough today to satisfy us that the drafting of these clauses will not unnecessarily impact on those whom it is not intended to affect. The amendments I have put forward largely replicate those tabled in Committee and seek to strengthen the defence for individuals on prescription drugs who, through a simple error and no fault of their own, have been found above a certain limit. Amendment 118H would delete the existing new Section 5A(3)(b) of the Road Traffic Act, which requires individuals on prescription medication to “show that” they took the prescribed drug in accordance with any and all instructions, both from the doctor and manufacturer. There are serious concerns that requiring positive proof that the individual complied with all advice is pretty onerous. Instead we propose Amendment 118K, which would mean that individuals could not use their prescription as a defence if it was proved that they had taken the dosage knowingly —the point made by the noble Baroness—contrary to any advice given by a doctor or supplier. That additional wording in brackets picks up on the points about manufacturer’s instructions being required to be considered as part of the prescriber’s or supplier’s advice, rather than placing the burden on the patient to read and understand all and any such instructions. The noble Lord, Lord Walton of Detchant, made the same point. We share his concern about how fair it is for patients on long-term pain medication to find themselves in such a situation and having to show that they have complied with absolutely every medical requirement.

We are worried that we risk criminalising individuals on medication on the basis of a technicality, simply for failing to correctly interpret an element of the patient information leaflet. It could be a slight, insignificant deviation from the instructions. The noble Baroness, Lady Hamwee, made the point about the timing of when a medication could be taken. What if the advice from a doctor differs from that on the manufacturer’s small print? Under the proposed new subsection (4)(a), patients would have to have done something positive, contrary to the instructions they had received, rather than have to positively prove that they acted in accordance with advice. It changes the emphasis of the proof.

New subsection (4) also focuses on what is probably the main medical aspect of the period when the body is getting used to the prescribed drug in the system. This has been mentioned by other noble Lords. Deleting new subsection (3)(b) and the use solely of the caveat in new subsection (4) then fits more appropriately with the evidential requirements of new subsection (5). Patients would be able to show that they have a prescription. They could take a copy of it or carry a letter from the prescriber. Evidence could be produced at a police station. However, the evidential burden of new subsection (3)(b) on patients if they had to “show that” they followed any and all instructions would be considerable. Clearly we are not seeking to protect anyone who is unfit to drive, but although the Government intend this new offence to mirror drink-driving limit offences, taking prescription medication that would otherwise be illegal does not automatically make someone unfit to drive; I am thinking specifically about pain medication.

As an example of why I am concerned, and to take what could happen to somebody sequentially, if an individual on medication has perhaps been rear-ended through no fault of their own, the police would arrive and, currently, breathalyse both drivers. Under the new legislation, they would “drugalyse”, or drug test, both drivers. The test might indicate that they are over the limit, but it does not tell the officer undertaking the test how far over the limit they are. So what would happen next to that individual? If they say that they have a prescription for the medication they are taking but do not have the prescription with them, how can they prove that they have taken medication in accordance with medical advice and not taken illegal drugs? Would they be taken to the police station, where obviously at some point they would be able to prove that they have a prescription? That would clearly be an inconvenience and could be particularly distressing. We do not want to reach a situation where individuals are deterred from taking their medication—again I am thinking specifically about long-term pain relief—because some individuals would be more of a hazard without their pain-relief medication than if they were on it.

The Home Office has been developing roadside “drugalyser” tests for the past 10 years. Without these, the individual would have to be taken to a police station for testing. When do the Government expect roadside drug tests to be available to the police? Do the Government intend to implement the new offence before roadside drug tests are available? How often would they expect the test to be used? Considering their high cost, I presume that the police would undertake a breathalyser test first. How often would the Government expect roadside drug tests to be used in the same cases as a breathalyser? Also, looking through the information that has been supplied, any assessment of the proportion of cases in which the Government expect to find individuals below the alcohol limit but above the limit for a certain concentration of controlled substance was missing.

Despite the good intentions—which we support—what concerns me is that the details of how it will work in practice have not been worked through for those on prescription medication. I am grateful to the Minister for sending me the letter from the chair of the drug-driving panel, Dr Kim Wolff, which the noble Baroness, Lady Meacher, has also referred to. However, I am extremely disappointed that the expert panel has not been able to publish its interim report before this stage of the Bill, though I think Ministers indicated we would be able to get it. Clearly, the levels that the panel is likely to recommend—particularly in the case of prescribed drugs—and the rationale behind the recommendations would have been a huge help in our deliberations today. They may have clarified a number of the issues that I and other noble Lords have raised. What is encouraging is Dr Wolff’s assurance in her letter that:

“In considering what limits should be set for common prescription medication, the Panel has looked at normal therapeutic ranges used in prescriptions, compared to those found in addicts misusing medicines”.

In relation to morphine, she said that the panel,

“are considering a limit that is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine”.

However, Dr Wolff also states that the panel’s primary consideration is,

“clear scientific evidence of risk of road traffic accidents”,

and that in the case of, for instance, prescribed benzodiazepine drugs:

“risk is especially high during the first four weeks of treatment and is particularly increased when benzodiazepines are consumed in combination with alcohol”.

Here, Dr Wolff outlines the inherent difficulties in setting a blanket limit in the case of medicated drugs, because tolerance can change over time and is subject to variation by other factors. I suspect that the Minister will be unable to answer at this stage whether the panel, on the evidence so far, will set a limit for benzodiazepine much lower than the average level for someone on long-term drug use, because of the increased risk in the first four weeks of medication. However, that is an important consideration in the implementation of these clauses.

Much of how this will be implemented will hang on the recommendations that the panel makes, which we do not have available. How will it factor in the effects of mixing drugs with alcohol? Will it feel compelled to set the limit a lot lower than the average dosage because of the risk of increased road safety problems when the drug is mixed with alcohol—even a quantity of alcohol below the legal limit? Someone could be below the legal limit on drugs and below the legal limit of alcohol but still be a danger to themselves and other road users, because the Government’s offence does not provide—understandably, because we have not yet had the report of the panel—for a combined alcohol and drug limit for certain controlled substances.

We all want all drug drivers who are a danger taken off the roads. We totally support the Government’s aims. However, we need to ensure that we are going after the right people. I hope that the Minister can give some assurances that he will look again to reassure himself and this House about the defence in this group of clauses for people on prescription medication, to ensure that it is appropriate and fair; that he will not shut the door on ensuring that the legislation hits the right note; and that he will take away the comments made today.

I hope that the Minister can answer my final question clearly. Can he confirm that the Government would not consider it appropriate for any action to be taken against those on prescribed medication, unless it is clear that their driving is impaired?

[Earl Attlee]

My Lords, I recognise that the amendments relate to concerns about the Government’s approach to drug-driving and, in particular, how the new offence will affect drivers who take prescription or over-the-counter medicines. I am grateful to the noble Baroness, Lady Smith, for her recognition of the problem. I will try as hard as I can to reassure the House that your Lordships’ fears will not materialise.

First, I emphasise that any passengers would not be screened for drugs following a vehicle being stopped by the police and the driver being tested for drugs. The noble Baroness asked me a number of very good questions, and I will answer them first, before going into detail. She asked, in effect, how much discretion a policeman has to arrest for drug-driving. Whether an officer decides to arrest and continue an investigation, including carrying out an evidential blood test, once someone has proved positive in a drug screening test, will depend on the facts of a particular case. Officers will be aware of the statutory defence of taking a specified controlled drug in accordance with medical advice and prescription.

As for the CPS, in reaching a decision as to which cases to prosecute, Crown prosecutors must take into account the Code for Crown Prosecutors. The code includes a requirement that prosecutors should swiftly stop cases where the public interest clearly does not require prosecution. I will return to that in a moment.

The noble Baroness also asked me about publication of the expert panel report. The expert panel is independent of government. It is important that it takes the time that it needs. Advising on which drugs the new offence should cover and on limits to set for driving purposes are complicated issues which require careful consideration. The expert panel has considered a wide range of drugs and has needed to reconcile the available evidence from the UK and abroad. This means that it has taken longer than we anticipated for the panel to report. The Government intend to publish a copy of the report of the expert panel on drug-driving as soon as we are able after the report is finalised. Of course, we will not proceed further with the secondary legislation until we have the expert panel’s report.

The noble Baroness also asked me about roadside drug tests. The Government expect roadside drug test equipment to be available in 2014, when we anticipate bringing the new offence into force. We would expect breath tests to be conducted first, as they are quicker and easier. We cannot speculate on how many tests would be taken, as that is an operational matter for the police.

18:45

On Amendment 118E, in the name of the noble Baroness, Lady Meacher, I must emphasise that the North review recommended that the new offence focused on controlled drugs as defined in the Misuse of Drugs Act 1971. Focusing on controlled drugs limits the scope of the offence to a specific category of drugs. This category of drugs is considered to be sufficiently harmful to warrant restricting its availability under the Misuse of Drugs Act 1971. Within the category, the Government will set limits only for drugs which are known to affect road safety.

The noble Baroness asked about cannabis. Broadly, she is right. Yes, we expect to set limits for THC, the active ingredient in cannabis. Scientific advice is that, for the purpose of drug detection, the window of opportunity for the detection of THC after a single dose would be less than nine to 12 hours.

It is important to remember that a person driving under the influence of a drug which is not controlled under the Misuse of Drugs Act 1971 could still be prosecuted under the existing offence in Section 4 of the Road Traffic Act 1988. If there was evidence that, for example, the use of a particular type of “legal high” was impacting on road safety, consideration could be given to classifying it as a controlled drug under the Misuse of Drugs Act 1971 and therefore potentially bringing it within the scope of the new offence. I expect that the same could apply to the issue of parallel drugs, to which the noble Baroness, Lady Meacher, referred.

The noble Baroness’s amendment would mean that the Government could set limits in respect of a much wider group of drugs. The Government do not consider that that change is necessary. Consideration has been given to which drugs the independent panel must consider. Its task has not been easy and it would not be a good use of resources to assess drugs that are not thought to be a significant problem. As I said, if they become a significant problem, they can be brought into scope.

Amendments 118G and 118GA, also in the name of the noble Baroness, Lady Meacher, are intended to restrict the circumstances in which a person can be found guilty of a drug-driving offence to where a driver, or the person in charge of a vehicle, has been involved in an accident or to where there is evidence of impairment.

A police officer may only require a person to co-operate with a preliminary drugs test in certain circumstances. Preliminary testing can be required only if the officer suspects that a driver is under the influence of a drug or has a drug in his body; if the driver has committed a moving traffic offence; or if the driver has been involved in a road traffic accident.

That is the same as the drink-driving regime. The existing drug-driving offence in Section 4 of the Road Traffic Act requires proof of impairment and is difficult to use. There have been few successful prosecutions, as identified in the North report. The new offence is designed to improve enforcement against drug-impaired drivers and to deter them. It is specifically intended to avoid the need to prove impairment, in order to enable more effective enforcement action to be taken against drug-drivers.

The amendments would enable the new offence to be used only where an accident had taken place, or where there was evidence of impairment. This would significantly reduce its deterrent effect and usefulness. The independent panel looked at the degree of risk of an accident, rather than the level of impairment of the driver. This was explained to your Lordships when Dr Kim Wolff, who leads the panel, addressed your Lordships at a meeting.

On the issue of spiked drinks, following the Joint Committee on Human Rights’ report into the Crime and Courts Bill, the noble Baroness, Lady Hamwee, in Amendment 118M, has proposed introducing a defence for a person who has unwittingly consumed a drug as a result of a third party’s intervention—in other words their drink was spiked. The Joint Committee suggests that such a defence would mitigate against the impact of strict-liability criminal convictions on individuals’ CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing. A strict liability offence is one committed regardless of any intention, recklessness or knowledge on the part of the individual.

The rules on special reasons are set out in Section 34(1) of the Road Traffic Offenders Act 1988. This provides for a mitigation of sentence by a court where it considers there are “special reasons” not to disqualify a driver convicted of an offence that carries an obligatory disqualification. The Government consider that Section 34(1) operates effectively and has not resulted in any injustice with regard to the existing offences in Sections 4 and 5 of the Road Traffic Act 1988. It is worth remembering that the problem identified by my noble friend already exists. If a spiked drinks defence was included in the new offence but not in Sections 4 and 5 of the Road Traffic Act 1988, this would create a two-tier system with no apparent logic for this.

Prior to amending existing legislation—which would need to include Sections 4 and 5 of the Road Traffic Act 1988, if a similar defence was to be included in those provisions—we would have to consult with stakeholders. We have no such plans at this stage. Additionally, there would need to be a similar consideration in respect of other modes of transport, whose drink and drug-driving legislation relies on, or closely mirrors, the provisions in the Road Traffic Act 1988. Therefore, we do not consider that Clause 29 requires adjustment to include a spiked drinks defence.

As we have heard, a number of noble Lords are concerned about the impact which this legislation could have on patients taking prescription medication and have tabled Amendments 118GA, 118H, 118J, 118K and 118L to address this issue. It is to no one’s benefit for drivers who are innocent of any wrongdoing to be arrested. The new offence is intended to target those who drive after taking illicit drugs or prescription drugs which are being misused and therefore give rise to road safety risks. The Government have therefore included a defence so that a person who has taken their medication in accordance with medical advice would not be guilty of an offence.

The noble Baroness, Lady Smith, asked me what happens if the doctor’s advice conflicts with the advice on the leaflet supplied with the drugs. Proposed new Section 5A(3)(b) says:

“so far as consistent with … directions”.

A doctor’s instructions therefore take precedence over the patient information leaflet, so the doctor trumps the leaflet.

In answer to the noble Lord, Lord Walton of Detchant, the medical defence itself provides considerable protection to those taking properly prescribed or supplied medical drugs. The noble Lord asked me about metabolites. Drugs can be broken or metabolised into other substances called metabolites. Where the metabolites are controlled drugs themselves, the Government could set limits for them. The Government have no plan to amend the legislation to include metabolites not controlled in the scope of the offence.

[Baroness Smith of Basildon]

My Lords, I am sorry to intervene but I just want the noble Earl to clarify the point about the instructions. Proposed new Section 5A(3)(b) says that D, the person who has been arrested,

“took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributor of the drug”.

Is the Minister absolutely clear in his comments today that the doctor’s instructions with the drugs would always override any manufacturer’s instructions and that that would be a defence in law?

[Earl Attlee]

My Lords, as I understand it, the doctor’s instructions will trump the leaflet. If I am wrong on that I will write. Also, the leaflet normally refers to the doctor’s advice so the leaflet would give the trumping authority to the doctor.

The medical defence places what is known as an “evidential” burden on a person accused of committing the offence. This means that the accused person must simply put forward enough evidence to “raise an issue” regarding the defence that is worth consideration by the court, following which it is for the prosecution to prove beyond reasonable doubt that the defence cannot be relied on.

I know that the noble Baroness, Lady Smith, and my noble friend Lady Hamwee are concerned that a patient who inadvertently deviates slightly from the recommended dosage might be unable to rely on the medical defence. I want to reassure the House that the Government and the independent panel will take into account the normal therapeutic ranges for medication when considering what limits should be set for drugs. This will reduce the risk of patients who take medical drugs correctly being affected by this legislation. The panel will be well aware of the risks pointed out by my noble friend Lady Hamwee. I would also like to point out that in the terms of reference, term 6 is:

“To establish the likelihood of whether these concentrations would be exceeded through prescribed or otherwise legally obtained drugs (as distinct from illicit drugs)”.

A small minority of individuals taking long-term medication at elevated concentrations could be in excess of the specified limit for a particular drug, as was so well explained to the House by the noble Lord, Lord Walton of Detchant. In most cases such users would only come to notice if their driving is impaired—when they can be dealt with under the existing offence in Section 4 of the Road Traffic Act 1988—or for some other reason requiring police action. Another point to note is that the Code for Crown Prosecutors specifically states that prosecutors “should swiftly stop cases”, as I have already mentioned.

Furthermore, the Government expect that the courts will take a sensible approach to the operation of the new offence. For example, a defendant seeking to rely on the medical defence may be afforded more or less leeway depending on the facts of a particular case, such as the nature of the medical advice provided, including the wording of any leaflet accompanying the medicine.

Finally, in Amendment 118GA the noble Baroness, Lady Meacher, has also proposed that primary legislation should include requirements for testing to be reliable and for the Government to set limits that are linked to road safety. We do not consider it necessary to set these requirements in legislation. First, the preliminary testing devices currently being developed would undergo a rigorous type approval process before being used for enforcement purposes. This type approval process is so rigorous that it is taking some time to secure approval and I have raised this issue with my right honourable friend the Secretary of State because we need this equipment in operation. However, it is vital to the integrity of our system of justice that the courts can rely on the evidence of the new equipment. Furthermore, evidentially testing using blood or urine specimens is already carried out for the enforcement of the existing drink and drug-driving offences without any express requirement for the testing to be reliable.

Secondly, we are clear that the purpose of the new offence is to improve road safety, as I have already stressed, so careful consideration will be given to the advice received from the expert panel and to the responses to the public consultation before setting any specified limits and regulations. The regulations would then need to be specifically approved by Parliament using the affirmative procedure. The new offence is intended to enable more effective law enforcement and to improve road safety by deterring drug-impaired driving and bringing more drug-impaired drivers to justice. In light of the points I have raised I hope the noble Baroness, Lady Meacher, will agree to withdraw her amendment and that my noble friend Lady Hamwee and the noble Baroness, Lady Smith, will not press their amendments. I have been asked many detailed questions. Where I have not answered them I will write, and no doubt another place will look very carefully at these provisions.

[Baroness Meacher]

I thank the Minister for his response. I remain completely unconvinced that there is any logic at all in differentiating between controlled and uncontrolled drugs. I would submit that the North committee, to which the Minister referred, had no awareness of the incredible flood of new substances coming into this country. It is a vast number. There were 65 new substances this year, 49 last year and 41 the year before. That changes the entire environment within which we work and Ministers may come to regret the idea that this legislation should also fail to take account of those changes.

[Earl Attlee]

My Lords, we asked the expert panel to consider the drugs that we thought were causing a road safety problem but the last thing we said was that it should consider any other drugs that it thinks necessary.

[Baroness Meacher]

I know that noble Lords do not want me to take any more time because people need to move on. My only other small point is that the Minister referred to risk as being the main indicator of the need for action rather than impairment. I would suggest that the two are incredibly closely related. The importance of impairment is to avoid discrimination against certain groups and the stopping of drivers in particular communities when there may be no indication of an impairment of driving. It is those matters which we should be aware of. That said, at this stage anyway, I will withdraw the amendment although I may come back at Third Reading because we still await the outcome of the expert panel’s deliberations.

Amendment 118E withdrawn.

Amendment 118F had been withdrawn from the Marshalled List.

Amendments 118G to 118M not moved.

19:00

Amendment 118N

Moved by

[Baroness Hamwee]

118N: Clause 29, page 29, line 23, at end insert—
“( ) Before regulations under subsection (8) are laid before Parliament, the Secretary of State shall publish a report regarding the controlled drug proposed to be specified and the limit proposed to be specified.”

[Baroness Hamwee]

My Lords, I hope to be very brief on this amendment and on Amendment 118P. These amendments deal with the regulations which, as the noble Earl has assured the House, will not be proceeded with until a good deal more work is done. My first amendment would provide for a report from the Secretary of State about the,

“drug proposed to be specified and the limit proposed to be specified”,

before laying regulations. Like all other noble Lords who have taken an interest in this, I am very keen that the decision should be made on the basis of evidence. This amendment is to suggest that the evidence base should be in the public domain and easily accessed before we are asked to deal with regulations.

I said a few minutes ago that there is a huge array of drugs. I was quoting the noble Lord, Lord Henley, when I said that but, having seen that remark in Hansard, it struck me that it may be difficult to decide whether to support regulations that cover more than one drug or where there is concern about the limit applying to a particular drug. It would be very helpful to have regulations made a drug at a time so that the vote can be very clear when the matter comes before both Houses of Parliament. Following the points that have been made about the importance of controlling drug-driving, I hope that the House would be able to vote for the inclusion of a particular drug without jeopardising the inclusion of another if there is concern about one which is on a list or the limit for one which is on the list. I beg to move.

[Earl Attlee]

My Lords, I would point out first that these are very important clauses and it is right that the House looks carefully at them. I know that these amendments relate to concerns around how the Government will implement the new offence. Amendment 118N proposes that the Government should be required to publish a report regarding the controlled drugs and limits to be specified in regulations before such regulations are laid before Parliament. The Government do not consider that such a requirement is needed. Clause 29 already requires the Government to consult before specifying in regulations the drugs and limits for the new offence. The Government also intend to publish a copy of the report of the expert panel on drug driving shortly. I have already provided an explanation to the House on the reasons for its delay. The consultation will set out the evidence base for specifying particular controlled drugs and limits in regulations.

Amendment 118P proposes that individual sets of regulations should be drafted for each controlled drug to be covered by the new offence. I recognise the importance of considering carefully the specified limits for each controlled drug. That is why we will consult on the drugs to be included in the offence and the limits which should be specified. It will be open to anyone to respond to that consultation and their response will be considered carefully. Drafting a new set of regulations for each controlled drug would be time-consuming for the Government to prepare and for Parliament to consider, and would be likely to involve much unnecessary repetition. It could also make it more difficult for those seeking to use the legislation since there would be multiple sets of regulations to refer to, making the relevant law unnecessarily complex.

The Government therefore believe that it would be better for all concerned for a single set of regulations to be produced following consultation. In the event that the regulations were not approved by Parliament due to the inclusion of a particular specified drug or limit, the Government would amend the regulations and lay a further draft before Parliament for approval. In the light of the points I have raised, I hope that the noble Baroness, Lady Hamwee, will be willing to withdraw her amendment.

[Baroness Hamwee]

My Lords, for speed, I will not comment on that other than to thank the noble Earl. I beg leave to withdraw the amendment.

Amendment 118N withdrawn.

Amendment 118P not moved.

Amendment 119

Moved by

[Lord Dear]

119: After Clause 29, insert the following new Clause—
“Public orderPublic order offences
(1) The Public Order Act 1986 is amended as follows.
(2) In section 5(1) (harassment, alarm or distress) for “, abusive or insulting” in the two places where it occurs substitute “or abusive”.
(3) In section 6(4) (mental element: miscellaneous) for “, abusive or insulting” in the two places where it occurs substitute “or abusive”.”

[Lord Dear]

My Lords, in introducing Amendment 119 I have in the front of my mind the words attributed to Voltaire as far back as 1759:

“I may disagree with what you say, but I will defend to the death your right to say it”.

That is what it is all about tonight. The amendment seeks to curb what I believe is an increasing misuse of the criminal law so as to curb or prevent the proper exercise of free speech. The amendment intends that the word “insulting” should be taken out of Section 5 of the Public Order Act 1986 and that Section 6 of that Act should be similarly amended to take account of the earlier change.

It might help your Lordships if I examine the history of the inclusion of the word “insulting” in legislation to illustrate how and why we have arrived at the current state of affairs—a state of affairs that, I would venture to suggest, is wholly unacceptable. In the mid-1930s, there was a progressive increase in severe public disorder on the streets of east London and in other great cities of this country, when supporters of Mosley’s black-shirted fascists were clashing with both moderate left-wing and extreme left-wing opponents. The law then was proving inadequate to deal with the problem and, as a result, the Public Order Act 1936 was enacted. It did a number of things. It introduced a number of very serious new measures: for example, to authorise or ban public marches and demonstrations; to ban quasi-military organisations; to outlaw the wearing of political uniforms in public; and so on.

At a much less serious level, Section 5 of that Act introduced the now familiar words whereby it became a criminal offence to use “threatening, abusive or insulting” words or behaviour in a public place or at a public meeting whereby a breach of the peace was occasioned or likely to be occasioned. I would ask your Lordships to fasten on to the important words there: “threatening, abusive or insulting” and “breach of the peace”. That legislation stood the test of time, and the police regularly resorted to arrests for breaches of Section 5 in what might loosely be described as disorderly or hooligan behaviour on a typical Friday or Saturday night.

Fifty years later, as part of a general tidying-up of the law that deals with public disorder, the Public Order Act 1986 reflected much of the thinking that lay behind the old Section 5. It re-enacted the legislation that made it a criminal offence to use,

“threatening, abusive or insulting words or behaviour”,

and extended it to circumstances covering displays of any writing or sign in a public or private place within the hearing or sight of a person likely to be caused harassment, alarm or distress. It removed the reference to breach of the peace and it did not require any intent to cause harassment. Clearly, the intention of the new Act was to require a greater degree of particularity in the statute so as to increase protection for vulnerable individuals.

So far, so good, and the new Section 5 also appeared to work well for a time; but not for very long. With the wisdom of hindsight, it is clear that there has been a steady increase of cases where the words “insulting words or behaviour causing distress” were being misapplied in circumstances where individuals or organisations disagreed with comments made about their own sexual orientation, general beliefs or objectives, and where the criminal sanction offered by Section 5 was used by them deliberately to curb or suppress the proper exercise of free speech, either by prosecution, or by utilising the undoubted chilling effect of a threat of prosecution.

There are numerous examples, and some of them are enshrined in the folklore that has grown up round this subject. For example, the student arrested in a demonstration for suggesting that a police horse was “gay”; the street preacher arrested for saying that he regarded homosexuality as “sinful”; the 16 year-old boy arrested for holding up a placard that read “Scientology is a dangerous cult”; the pensioner threatened by police with arrest for putting a sign in his window that read “Religions are fairy stories for adults”; and the man arrested and charged after he growled at a dog, even though the dog owner did not wish to prosecute. There was no mention of what the dog wanted. There were the animal rights activists who were threatened with police action useless they removed little models of seals from public view; seals that had been red-painted to represent blood. The list goes on and on, and I will not weary your Lordships with more examples.

Whose fault is it? Who should we blame? Obviously, on occasions the police are to blame. They have not exercised always the degree of common sense and discretion that would properly have resulted in a blind eye being turned to the conduct in question. Often, however, the police have been manipulated by those whose tactic has been to complain to the police on the spot and insist on police intervention, with the express or implied threat of a complaint against them unless action is taken. A now often risk-averse police service, and sometimes risk-averse prosecutors as well, have found it safer to mount a prosecution and leave the courts to adjudicate.

If change is in the air—the change that is projected into Amendment 119—how much support is there for it? I remember the Committee stage of the Counter-Terrorism Bill in 2008 when I tabled the amendment to prevent the then Government from extending the limit on pre-charge detention of terror suspects from 28 days to 42 days. As with this debate about freedom of speech, that issue was concerned with a major constitutional freedom. As with this issue today, there was a long run into the debate. But in 2008, opinions were divided. I was confronted then with all the alternative arguments: in person, in your Lordships’ House and outside, by letter and e-mail. There were debates on the radio, on television and in the press. There were arguments for and against, before the amendment was carried with a majority of 191.

But what a contrast that was with the current situation. With only one exception—I will refer to that later—I have not heard a word in argument for the retention of “insulting” in Section 5. There have been no personal approaches to me, either here or outside; no letters or e-mails; no telephone calls. Every comment in the media is supportive. I understand from colleagues in the House that they have been the recipients of a flood—or is it a blizzard?—of letters from people outside in all walks of life supporting the amendment. There appears on that basis to be little or no opposition. I wait with interest to see what is voiced tonight.

And look at the support. The noble Lord, Lord Macdonald of River Glaven, until recently the Director of Public Prosecutions, has signed the amendment and written a detailed opinion that I have circulated individually to Members of your Lordships’ House. It gives a brilliant resumé of the substantial legal arguments supporting this change. The noble Baroness, Lady Kennedy of The Shaws, an eminent QC and chairman of Justice, and the noble and learned Lord, Lord Mackay of Clashfern, one of the most respected Lord Chancellors of recent years, have also signed the amendment. I am very grateful to all three for their interest and support.

But there is much more, and from individuals or organisations that do not always work harmoniously one with the other. The National Secular Society and the Christian Institute are often at odds, but here they stand shoulder to shoulder supporting the amendment. I should like to record my warm thanks to the staff of the Christian Institute for the administrative help that they have given me prior to this debate. There are also the Peter Tatchell Foundation; the Bow Group; the Freedom Association; the Equality and Human Rights Commission; and the Joint Committee on Human Rights, which reported as recently as 20 November, saying:

“We understand the sensitivities with certain communities on this issue, but nonetheless we support an amendment to the Bill which reduces the scope of s. 5 Public Order Act … on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression”.

Justice fully supports the amendment, writing:

“It is essential for the progress of society that we do not ossify public views by censoring debate on matters of current public controversy”.

Liberty would scrap the whole of Section 5, not just one word; but it has pledged wholehearted support, saying:

“The amendment would herald a very significant victory for freedom of expression”.

I will not go on; there are other organisations, and perhaps they will forgive me for not adding to this very long list and taking time tonight.

Where do the police stand in all of this—for it is front-line officers who are so often caught up in the practical application of these laws? The Association of Chief Police Officers has declared that it is not opposed to the change. Only the Police Federation expressed reservations; it is the one organisation that I know has doubts about this. The Police Federation fears that the amendment would reduce the powers of police in dealing with disturbances on the street that were low- level but nevertheless troublesome. I suggest that those fears are misplaced. Most of us know that the federation is feeling bruised at the moment. Change is not at the top of its agenda. But it might well take heart from the letter that the current DPP, Keir Starmer QC, wrote to me only last week, in which he said:

“The issue has been the subject of consultations by the Home Office in both 2009 and 2011. On both occasions, the CPS responded confirming that we are not in favour of a legislative amendment to remove the word ‘insulting’ from section 5. However, having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to a conviction could not properly have been characterised as ‘abusive’ as well as ‘insulting’. I therefore agree that the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions”.

That is a very significant message indeed, and from a very significant player. As noble Lords will readily appreciate, we now have the current DPP and his predecessor both saying that the amendment can and should be carried.

This amendment, if carried, would not leave a hole in the law. Section 5 in its curtailed form would still allow prosecution for “threatening or abusive behaviour”, and there are tougher and more targeted laws, such as incitement to racial hatred, and a range of aggravated offences where hostility to the group to which the individual belongs is taken into account. Along with general laws, such as public nuisance and breach of the peace, these give the police all the powers they need to protect minority groups. It is minority groups that the law needs to look at particularly, and they would not be left out. The “abusive” limb of Section 5 covers most, if not all, genuine cases of public disorder. I will not go into the judgment in Southard v DPP, but one could find that explored there in some detail. Any repeated harassment of an individual is caught by the Protection from Harassment Act while those who, for example, burn poppies on Remembrance Sunday would be caught by Section 4A of the Public Order Act, which outlaws intentional harassment, alarm or distress.

Having tried to deal with a brief resumé of how we are where we are, looked at the abuse of Section 5 and examined some of the relevant legal provisions, I have to ask: is there any reason why this amendment should not have a clear run up the final straight to the finishing tape? Almost inevitably, as happens in life, one problem remains—a fly of fairly considerable proportions in this particular jar of ointment—and I have to say that it concerns the Home Office. The Home Office launched a public consultation on 13 October last year that sought views on three issues. Two of those are of no interest in this debate today, but one examined the possibility of removing “insulting” from Section 5. I think, though without proof, that that is the consultation that the DPP referred to before he changed his view. That consultation closed on 13 January this year. As noble Lords will know, the guidance is that the Government should respond to a public consultation within three months—that is to say, in this case, some time in April this year. To date, we have not heard a word.

At Second Reading of the Protection of Freedoms Bill in November 2011, and again on the fourth day of the debate on the Queen’s Speech in May this year, I declared that, but for the consultation period, I would have tabled an amendment to delete “insulting” from Section 5. In winding-up that latter debate, the Minister asked for patience. On 4 July this year, when the noble Lord, Lord Mawhinney, raised the issue again, the Minister again requested that we remain patient. Still there is silence. It is now over 14 months since the consultation was launched, over 10 months since it closed and over five months since the Minister asked for a little more time to consider the matter. What is going on? Is it procrastination, prevarication or bureaucratic incompetence? I do not know but, whatever the answer, I suggest very strongly that we should not and cannot wait any longer.

I opened this debate with a quotation, and I finish with another. Echoing the judgment of the European Court of Human Rights in Handyside v UK, Lord Justice Sedley, when he allowed the appeal of a street preacher for an offence under Section 5 in Redmond-Bate v DPP, said:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.

In short, the removal of “insulting” from Section 5 will ensure that where words are not abusive and, importantly, where there does not exist any evidence of intent to harass, alarm or cause distress, nor any likelihood of fear of violence or actual violence, then those words will not be illegal, even though they may insult. You do not have to agree with the sentiments expressed—only with the right of the proposer to voice them in benign circumstances. You can be reassured that the remainder of the criminal law in this area will continue to protect all groups and individuals who are intentionally insulted.

I put it one last way. To oppose this amendment is to support and to play into the hands of those whose sole aim is to suppress views with which they do not agree, come what may. I ask this House to recognise the current abuse of the criminal process, to reflect on the need to protect basic freedoms under the law, to remember that freedom of speech is one of the most important civil liberties—some would argue, the most important civil liberty—and to support the amendment. I beg to move.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment. I will not take long because I hope that we will move to a vote very quickly. I am the chair of Justice, the legal organisation, and I can say with confidence that that organisation, which represents the legal profession up and down the country, is wholehearted in its support of this amendment. The stories that the noble Lord, Lord Dear, has told of ridiculous cases being brought before the courts could be replicated in robing rooms and courtrooms throughout the land, and I am afraid that it really is time that we put a stop to this.

A very famous American judge once spoke about the importance of the marketplace of ideas, which means listening to views that sometimes one does not like, sometimes, as Lord Justice Sedley said, are irritating, sometimes are provocative, sometimes are heretical and sometimes might upset us. However, that is what democracy is all about, and we should take pride in it.

I wholeheartedly support the noble Lord, Lord Dear, in this amendment, and I hope that all noble Lords who are here will see the importance of this. Unfortunately, the thin-skinned are not serving our democracy well by seeking to have these cases brought. I pity the police who are put into this difficult position, and I am glad to see that both the former Director of Public Prosecutions and the current one recognise that the law is there to deal with truly offensive behaviour or that would lead to further crime and disorder. I hope that noble Lords will support the amendment.

[Lord Mackay of Clashfern]

My Lords, as the third string, it seems to me that freedom of expression is an extremely important part of our democratic heritage, and it has not been won without quite important sacrifices by many people who have gone before us. It is a criterion for seeing whether democracy is supported that freedom of speech is supported strongly.

Some matters connected with freedom of speech are very topical at present with regard to the public press, but the notion that freedom of speech can be tampered with without serious consequences to our democracy is a considerable mistake. The amendment would be an important step in clearing our situation regarding freedom of speech. There is no menace in an insult. Abusive or threatening language is different. It is menacing to people and, rightly, is subject to criminal law. An insult, though, is in no way threatening, except as a challenge to what I am saying. Surely we have all had one or two challenges to what we say, and we are usually the better for it, sometimes by strengthening our argument in favour of what we are saying and sometimes leading to wise reconsideration and withdrawal. I suppose that all of us have had such experiences.

I support very strongly the amendment moved by the noble Lord, Lord Dear, and I hope that if the Government are going to finish their consultation, they will do so in the right direction. It seems to me that they have taken a long time. Often that is necessary in order to clear up some issues, but I am sure my noble friend will explain tonight exactly what the position is in relation to this consultation. Why has the result not been given within the timescale that the Government themselves set?

19:30

[Lord Morris of Aberavon]

I rise briefly in support of the masterly way in which the noble Lord, Lord Dear, has introduced and covered every aspect of this amendment. I just want to say three things. First, freedom of speech is essential. There is always a tendency for there to be well intended restrictions, and then there are unintended consequences. This is what has happened in this particular sphere.

Secondly, it is crucial that the Director of Public Prosecutions has changed his mind. I have a great respect —having been the Attorney-General and responsible for the Director of Public Prosecutions—for the experience and wisdom of the director, whoever he happens to be. In this case, he has said—and I repeat what has already been said,

“we are unable to identify a case in which the alleged behaviour leading to conviction could not properly be characterised as ‘abusive’ as well as ‘insulting’”.

He said the word “insulting” could “safely be removed”. I think we should pay regard to that opinion. The correspondence we have heard of and received describes excess of zeal by a particular officer, which has led to the distress of those who have been prosecuted. The last example given by the noble Lord, Lord Dear, concerned the causing of distress to a pair of Labradors by saying “woof woof” in the hearing of a policeman. That is true; it happened, it was prosecuted and the person was convicted and fined £50. Fortunately, that conviction was quashed on appeal. I will not go on; I think the case is proved.

[Baroness Butler-Sloss]

My Lords, like many other people, I received a large number of e-mails and letters all going one way in support of the noble Lord’s amendment. I would just like to tell the House about one letter I received. In my very untidy desk, I have lost it, but it was about a lay preacher who preaches on the street and preaches on Sundays in church. He happens to subscribe to a literal form of the Old Testament with which I do not agree, but he was preaching on his literal interpretation in the street. Someone complained to the police, and he was arrested and spent seven hours in the police station. He was placed on police bail on the order that he was not allowed to preach. If that is not an abuse of the freedom of speech, I do not know what is. I cannot understand why the Minister and the Government are not supporting this amendment.

[Baroness Hamwee]

My Lords, I was hoping that my noble friend Lord Macdonald would be in his place as he was a little earlier. I hope he is not stuck in a lift or something. I want to put on record on his behalf, on my behalf and on behalf a number of people who are becoming quite vocal, my wholehearted support for this amendment, and I speak for a number of colleagues. I put my name to the equivalent amendment at the previous stage and, as I recall it, the noble Lord, Lord Mawhinney, said, “For heaven’s sake, even the Liberal Democrats have this as party policy”. Well, we do; we would have gone further, but we are happy to go as far as is before us tonight.

[Baroness Smith of Basildon]

My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,

“will be able to put forward the Government’s considered view to the House”.—[Official Report, 4/7/2012; col. 781.]

Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.

I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?

I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?

I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.

However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.

Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.

We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.

If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.

[Baroness Kennedy of The Shaws]

Perhaps I may ask my noble friend whether the word “abusive” would deal with that. The law is there to deal with it. The example that my noble friend has just given could be met with the law in the way being proposed by this amendment.

[Baroness Smith of Basildon]

My Lords, it may well be. The answer is that I do not know. There has to be a proper examination of the evidence. If I was absolutely clear, and if we could be absolutely confident that this poor woman, Miss Williams, who was abused on a train, would be covered without the word “insulting”, I would move forward on this. I think that we could accept that. Until we have evidence from the Government that allows us to be absolutely clear that we are protecting people who are subject to abuse and insult—

[Lord Morris of Aberavon]

If my noble friend wants evidence, would she not take into account the views of the Director of Public Prosecutions who is in charge of all prosecutions and has reached the view that without this word there are sufficient grounds to prosecute in this kind of instance?

[Baroness Smith of Basildon]

My Lords, I would absolutely take that view on information from the Director of Public Prosecutions. However, that also has to be seen in line with the consultation that the Government have undertaken. A letter produced today does not give me confidence that we would protect those people. I do not know whether the Director of Public Prosecutions has looked at the case of Mr Braithewaite and Heather Williams, if that is what he has in mind. If the DPP could give an assurance on that case and other successful prosecutions, it would give me a lot of reassurance that we are not removing protection.

[Lord Morris of Aberavon]

My noble friend must have regard to the fact that the director is the head of the prosecution service. He is in charge of the Crown Prosecution Service. It is the CPS which takes the decision on whether a prosecution should take place. From his long experience at the Bar and in the law, I am sure that he has taken into account the views of all his colleagues in the service. Is that to be disregarded?

[Baroness Smith of Basildon]

My Lords, I am not disputing that. I am disputing that that should be taken in context with the other information. We have been waiting for almost a year for the Government’s consultation response. It is a disgrace that it has not been made available to the House. It is for the Government to justify that and not me.

[Lord Thomas of Gresford]

We would not sully our ears with the expressions used in the instance that the noble Baroness has given. Was it not abusive? Was it not threatening? Was it merely insulting?

[Baroness Smith of Basildon]

My understanding of the case concerning Mr Braithewaite and Miss Williams is that the defendant was charged and convicted of a Section 5 Public Order Act offence for the homophobic insults. There were other offences as well, but homophobic insults were a significant part of that prosecution. It is for the Government to bring forward what they intend to do. I am not against change or further discussion on this but, on the evidence today, I want to see the evidence from the Government in much greater detail and to know exactly what the outcomes and the consequences would be for those who the law currently protects.

[Lord Taylor of Holbeach]

My Lords, I understand the interest that has been shown in this debate. I thank the noble Baroness, Lady Smith, for at least demonstrating that the issues that the House has to consider are perhaps a little more complicated than some of the speeches have implied. It is important to stress that there was a further sentence to the letter of which the noble Lord, Lord Dear, kindly sent me a copy. After the comments about the ability to prosecute, the letter continued:

“However, I appreciate there are other policy considerations involved”.

He is right that the Government have to consider the full implications of this amendment.

Let us make it clear: the Government are not seeking to change the law. It is this debate and this amendment that are seeking to change the law. The law has existed and has protected free speech, and incidents have been demonstrated. But we need to be properly considerate before we change the law in this area.

19:44

As the noble Lord, Lord Dear, has explained, the amendment would repeal as an offence the use of insulting words or behaviour that are likely to cause “harassment, alarm or distress”. As has been mentioned, the House will recall that a similar amendment was put forward by my noble friend Lord Mawhinney in Committee. At that point, he agreed to withdraw his amendment to allow the time for the Government to fully consider their response. After all, they had a public consultation, as the noble Baroness has mentioned, on possible reform of the whole of Section 5. I am grateful to my noble friend, who I do not think is in his place.

The Government have completed their consideration of the consultation responses. The consultation produced a polarisation of views—I do not think that that will surprise noble Lords—between those seeking removal of the word “insulting” and those wishing to retain it. The number of responses—there were more than 2,900—the strength of feeling and the complex issues raised by respondents, on both sides of the debate, make this a far from straightforward decision. If it were easy, I certainly would try to make it easy.

The task falling to Government on this issue is to carefully balance the right of people in a democratic society to express themselves freely with the Government’s responsibilities to protect the rights of others to go about their lawful business without being caused harassment, alarm or distress. Therefore, it is important that the debate on this issue is properly informed.

Section 5 does not make it an offence for one person simply to insult, abuse or even threaten another. That is the law. For the offence to be committed the words or behaviour used, or the insulting writing or picture displayed, must be within the sight or hearing of a person likely to be caused harassment, alarm or distress. It is perfectly possible for a person lawfully to express views in public, which are considered by others to be insulting, abusive or threatening without being likely to cause harassment, alarm or distress, and therefore not to contravene Section 5.

The courts have held, in the case of Percy v the Director of Public Prosecutions, that Section 5 is proportionate and satisfies the necessary balance between the right of freedom of expression and the rights of others to go about their business without being subject to behaviour likely to cause harassment, alarm or distress.

However, the Government recognise the strong arguments on both sides of this issue. Some feel that the “insulting” limb of Section 5 has a chilling effect on freedom of expression—we have heard speeches to that effect—and a disproportionate impact in relation to religious groups who practise their religion by preaching in public. It has further been argued that insults should not be a criminal matter and it is not for the police and the courts to decide what constitutes an insult.

Some believe that removing the word “insulting” from Section 5 would affect only very low-level disorder and would have no material effect on our ability to prosecute serious public order offences. They feel that offences such as poppy burning could be captured by the “abusive” limb of Section 5 or by other provisions such as Section 4A of the Public Order Act, which covers intentional harassment, alarm or distress.

The Government have also listened to the police and other criminal justice agencies, and the concerns they have about ensuring that the police have the powers they need to protect the public and to maintain public order. The police have said that Section 5 is a key early intervention tool that allows them to deal with a wide variety of public order and anti-social behaviour offences at the earliest opportunity. From that point of view, the “insulting” limb of the offence gives them the flexibility they need to respond to hate crime and to defuse tension quickly in public order situations.

Some argue that reform of Section 5 could reinforce perceptions that it is acceptable to disrespect or even swear at police officers. While swearing is not itself an offence, it can be covered by Section 5, which applies not only to members of the public but to public officials, including police officers who are sworn at in the course of their duties. It is also argued that removing the “insulting” limb of the offence could impact on the ability to prosecute successfully cases such as the burning of poppies on Remembrance Day and the desecration of monuments or symbols of national significance, such as flags and war memorials.

The Government have carefully considered the legitimate concerns and strongly held views of respondents to the consultation. There are good arguments on both sides. However, I must inform the House that the Government strongly holds the view that the word “insulting” should be retained in Section 5 of the Public Order Act.

The Government have a responsibility to protect the public so that communities and law-abiding citizens can live in peace and security. The police must have the powers they need to meet this responsibility. We have considered this matter—

[Lord Maginnis of Drumglass]

My Lords—

[Lord Taylor of Holbeach]

I am sorry, but I am not prepared to give way. I want the House to hear the argument that has gone through the Government.

We have considered this matter at great length—for too long, as the noble Baroness has suggested—and we have reached the firm view that Section 5 should not be reformed. There is insufficient evidence that the removal of the word “insulting” would be beneficial overall. I regret that this decision will not be welcomed by everyone, but I assure the House that it has been given careful consideration. I regret to say that should the noble Lord, Lord Dear, seek to test the opinion of the House, I will urge noble Lords—

[Lord Maginnis of Drumglass]

My Lords—

[Noble Lords]

Order!

[Lord Taylor of Holbeach]

I will urge noble Lords to reject the amendment.

[Lord Morris of Aberavon]

Would the noble Lord like to comment on the fact that the Director of Public Prosecutions has changed his mind? How do the Government respond to and answer that change of decision?

[Lord Taylor of Holbeach]

The letter is available, no doubt, from the noble Lord, Lord Dear, in full. I suggest that noble Lords read the full text of the letter, not just selective quotations.

[Lord Maginnis of Drumglass]

In so far as I understand the term “abusive”—most noble Lords will understand that term—can the Minister define in legal terms the word “insulting”? I have not heard in anything that he said tonight a proper definition of “insulting”. I have heard it defined by the Opposition Front Bench. I shall leave my question at that. Can the Minister define “insulting”?

[Lord Dear]

My Lords, I shall respond to one thing. Lest there should be any doubt that I might have been concealing something in the letter from Keir Starmer QC, the DPP, having safely said that you can take “insulting” out of the section, in the last line he says:

“However, I also appreciate there are other policy considerations involved”.

I am bemused. I think that he probably knew something that I did not: that the Government are confused.

I hope that noble Lords on both Front Benches will allow me to say that I am totally confused by their attitude. We have a picture on the one hand that everything is well, despite the fact that the current DPP, the ex-DPP and the ex-Lord Chancellor—a plethora of legal minds in this House—have said that “insulting” can and should come out. The law is not leaving a hole in its place; “abusive” will cover it. There is the safety net of Section 4A, what is left of Section 5 and other legislation. I am deeply disappointed. I had hoped that the Government would support this, with the wide-ranging, voluminous support that there is on all sides of the House, from people who have much better experience than me.

The signals that have been sent tonight—indeed, that have been sent to all of us in the preceding few days—show that many noble Lords have put themselves about very considerably to hear this debate, travelling from the far corners of this country; I do not use those words lightly. We have waited far too long for this. Although I regret to have to say so, I beg leave to test the opinion of the House.

19:57

Division 1

Ayes: 150

---

Conservative: 48
Crossbench: 39
Liberal Democrat: 29
Labour: 23
Independent: 3
Ulster Unionist Party: 2
UK Independence Party: 1

Noes: 54

---

Conservative: 30
Labour: 17
Liberal Democrat: 6

20:08

Amendment 119A not moved.

Clause 30 : Orders and regulations

Amendments 120 and 120A

Moved by

[Lord Taylor of Holbeach]

120: Clause 30, page 30, line 43, after “30” insert “or 30A”

120A: Clause 30, page 31, line 6, at end insert—
“( ) an order under paragraph 76E of Schedule 12;”

Amendments 120 and 120A agreed.

Amendment 120B not moved.

Clause 33 : Short title, commencement and extent

Amendments 121 and 122

Moved by

[Lord Taylor of Holbeach]

121: Clause 33, page 32, line 41, after “17” insert “and 18”

122: Clause 33, page 32, line 41, after second “to” insert “11, 12 and”

Amendments 121 and 122 agreed.

Amendment 122A

Moved by

[Lord Pannick]

122A: Clause 33, page 33, line 1, leave out “Section 21(2) comes” and insert “Sections 21(2) and (Abolition of scandalising the judiciary as form of contempt of court) come”

Amendment 122A agreed.

Amendment 122AA

Moved by

[Baroness Deech]

122AA: Clause 33, page 33, line 16, at end insert—
“( ) section (Appeals relating to regulation of the Bar);”

Amendment 122AA agreed.

Amendment 122B

Moved by

[Lord Pannick]

122B: Clause 33, page 33, line 17, at end insert—
“( ) section (Abolition of scandalising the judiciary as form of contempt of court);”

Amendment 122B agreed.

Amendments 122C to 124

Moved by

[Lord Taylor of Holbeach]

122C: Clause 33, page 33, line 33, at end insert—
“( ) Subsection (11) applies to section (Use of force in self-defence at place of residence) only so far as the provisions amended extend to England and Wales or apply in relation to service offences.”

123: Clause 33, page 33, line 34, after “apply” insert “to amendments made by section (Disclosure of information to facilitate collection of fines and other sums)(13) and (14) or”

124: Clause 33, page 33, line 38, after “section” insert “(Immigration cases: rights of appeal; and facilitating combined appeals),”

Amendments 122C to 124 agreed.

Public Services

Wednesday 12th December 2012 Lords Chamber

Question for Short Debate

20:09

Tabled by

[Lord Boateng]

To ask Her Majesty’s Government what steps they intend to take to enable the voluntary sector to participate in the delivery of public services.

[Lord Boateng]

My Lords, I am grateful for the opportunity to ask this Question. I am even more grateful to the numerous noble Lords on all sides of the House who have indicated a willingness to speak in this short debate. The numbers themselves indicate the extent of enthusiasm and interest in the House in the voluntary sector. That comes as no surprise, because noble Lords of this House, on all sides, will have cut their teeth in public service in the course of engagement with and membership of voluntary organisations of all sorts. We are enthusiasts for the role of the voluntary sector and its capacity to contribute to the civic life of our country. We owe it a debt of gratitude.

This is a time of risk and opportunity for the sector. The opportunity lies in the undoubted commitment of this Government and indeed the appetite of peoples of all political persuasions and none for public service reform. We want to see the delivery of our public services improved and made more efficient. We believe— overwhelmingly, in my experience—that the voluntary sector has a role to play in enabling that to happen. It is a source of innovation; it permits a greater degree of connection with our citizens because it operates close to the ground; and it is a source of passion, enthusiasm and activism within communities up and down the country.

The opportunity is there for the public sector to take to its heart the voluntary sector, to embrace it and to enable it to contribute to the reform process. Many of us hope and believe that that was the impulse that lay behind the Prime Minister’s promotion of the big society. I have never been one of those who decried that term and ambition. I believe quite unabashedly in the big society where that means the active involvement of the citizen and their enablement and empowerment to take responsibility for the improvement of the community as a whole. It is summed up in the South African principle of “ubuntu”: we are what we are because of others, and our relationship with others shapes not only ourselves but also our society for the better.

That is why I was glad—along with a number of noble Lords in this House and honourable Members in the other—to accept the invitation of the Association of Chief Executives of Voluntary Organisations to join the Commission on Big Society. It produced a report which was widely welcomed by the voluntary sector and received by Government. We would benefit from a considered and detailed response from the Government. I hope that that will be forthcoming, and I look forward very much to the Minister’s response to the debate this evening, in view of his wealth of experience in the not-for-profit sector.

Central to the report’s findings was the call for a better partnership between central and local government and the voluntary sector. It made a number of practical proposals, which I will come to, as to how that partnership might be enhanced. The opportunity is there, if the Government will but take it, to find a partner for change and improvement in the voluntary sector. However, there is also risk. Only this week we saw published by the Charities Aid Foundation and the National Council for Voluntary Organisations a report on UK giving in 2012 that found that donations to charity had fallen by 20% in real terms in the past year. This means that £1.7 billion less is being given to charity. In addition, fewer people are donating to charity, and the average amount given by donors also fell. This undoubtedly reflects the period of austerity and the challenging economic times in which we live.

Even more worrying was the concern highlighted by a trawl of some 252 senior workers in charities by the Charities Aid Foundation. The results, also published this week, highlighted the severe threat facing many of our nations’ charities. The survey found that 17% of those asked said that is was likely that their charity would face closure in the next 12 months; 40% worry that their charity may have to close if the economic situation does not improve; nearly half—49%—of charities asked had been forced to use their reserves to cover income shortfalls over the last year; and more than one-quarter—some 26%—have cut front-line services.

This is not a plea for more resources for charities in these straitened times. Of course, one always hopes for more resources and greater giving to charities. I hope that the Minister will pass on to the Chancellor of the Exchequer and the Chief Secretary that there is more that Her Majesty’s Revenue and Customs could do in reviewing the gift aid system and to promote giving; I hope it will do so. However, the main purpose of this debate is to ask what we can do and we should be doing to promote the partnership between the voluntary sector on the one hand and central and local government on the other. I argue that this partnership is at the heart of the reform of public services and the better delivery of services to the public.

That partnership was enshrined in the compact between the voluntary sector and government which was initiated by the previous Government and which has been carried on by the current Government—and to their credit. It sets out the key principles of the approach which needs to be taken to improve the relationship to the mutual advantage of both. The compact is itself subject to stresses and strains at this time. The recent Compact Voice report on local authorities and the voluntary and community sector found that up to 50% of local authorities are in fact cutting the voluntary and community sector disproportionately. What will the Government do to ensure that local authorities are sticking to best value guidance? One year on from the publication of the NAO report into compact implementation, what demonstrable progress has been made in the implementation of its recommendations?

I also raise with the Government the issue of commissioning. If there is to be an effective partnership between the voluntary and statutory sectors at a time of public service reform, we need effective public service commissioning. We need to see that the Public Services (Social Value) Act is effectively implemented. We need flexible commissioning approaches which allow potential providers to deliver in consortia and partnerships and to assist that progress. We also need to invest in the capacity of the provider base, particularly those smaller organisations which are working with vulnerable or hard-to-reach groups. Very often it is those hard-to-reach groups that can be adversely affected by the payment by results approach adopted by government. I do not deny that there is value in the approach, but I fear that bad practices such as cherry picking and going for low-hanging fruit, the targets that are easiest to achieve, may lead to a situation in which we will fail to serve those most in need—the most difficult to reach of those suffering from a disability, and the most hardened of those being served by the excellent charities working in the field of rehabilitation, crime prevention and with the homeless—if we adopt a payment by results approach.

What are the Government doing to ensure that emerging payment by results methods have effective tariff systems? They can make a huge difference to ensuring that government and the voluntary sector are working effectively together to address the needs of the most vulnerable. What are the Government doing to support the voluntary sector in the transition to payment by results models?

I will end there. This is an important debate. I will welcome the Minister’s response to these questions and to the many others that no doubt we will hear from other noble Lords.

20:20

[Baroness Stedman-Scott]

My Lords, I thank the noble Lord, Lord Boateng, and congratulate him on securing this debate. I declare an interest as the chief executive of Tomorrow’s People and a trustee of New Philanthropy Capital.

The subject matter is important to our country, our communities and our Government. We need professional, effective and robust public services delivered by whoever can best do the job. Noble Lords will need no confirmation that I am completely committed to the voluntary sector and the role that it plays. That it has a role to play in the delivery of public services I have no doubt. However, there are real challenges for both government and the sector if this is to happen and if we are all to step up to the mark.

I hope that my contribution to this debate will be seen as challenging but helpful, ambitious but realistic. It is not a case simply of assuming that the sector can step up to the challenge; it will have to consider some significant issues. I have no desire to set the hares running, but while I know that the Work Programme is new and in its early stages, there are significant lessons that we can all learn from the process of becoming involved in it. That applies to the sector and to government. The sooner we learn those lessons for the benefit of the people we are all in business to serve, the better.

I will address my first remarks to the sector; I am talking to myself now, in the nicest possible way. There needs to be a maturity in measuring impact in a consistent way. This is crucial. It is not what we as a sector believe that we can do, it is what we know we can do, with evidence to back up what we know we can achieve. My second point concerns financial capacity and capability. The issue of working capital needs to be understood. The payment by results point made by the noble Lord, Lord Boateng, is critical. Nobody I have spoken to has a problem with being judged on their results, but it is no good going into these things believing you can achieve something if you cannot prove it. If the voluntary sector is going to come into public service in a serious way, we must face the issue of scaling up. Sometimes in scaling up, organisations lose the magic of what they can do. Sometimes in becoming too big, we lose something. We must not compromise mission for volume and vanity. Coco Chanel said: “Turnover is vanity, profit is reality and cash flow is sanity”. That applies also to the voluntary sector.

I turn now to the Government and say to the Minister that there needs to be maturity in the commissioning process. Progress has been made. This has been demonstrated by the DWP innovation fund. I am grateful to the Government for that, but some people have said to me: “If only the Government would commission what works rather than what can be traded at the lowest fiscal cost”. We may get value into that. I am the first to understand that we are in very difficult times and that cost is a major factor. However, sometimes we spoil the ship for a ha’porth of tar.

It never does any harm to remember the people we are in business to serve. We have to hold them at the heart of what we do. Can the sector step up to the mark? Of course it can—but with changes. I am sure that with government procurement changes we can all do a much better job.

20:25

[Baroness Barker]

My Lords, I, too, thank the noble Lord, Lord Boateng, for introducing this debate. I declare an interest; I have a consultancy called Third Sector Business.

Three years after the financial crisis in the City, the shock waves are making their way out to local government and to charities. The noble Lord mentioned the survey results that came out this week from the Charities Aid Foundation. They should have come as no surprise. The survey showed that there are approximately 10,000 charities that are very vulnerable because they derive a large percentage of their income from delivering services through contracts with local authorities. Probably some of the charities have lost sight of the purpose for which they were set up. Some of them may deserve to move over and make way for more innovative and interesting social enterprises that are very tech-savvy and cost-effective; but some of them for years have been subsidising local authority service provision, and some of them are very important to the communities that they serve and to which they bring additional benefits. Therefore, some of the organisations deserve help to survive.

The Government recognised that in April this year when the Cabinet Office launched the £10 million Investment and Contract Readiness Fund, run by Social Investment Business. That is a three-year programme, but it is urgent that learning from the programme should be got out quickly to charities that clearly need to develop new business models and the sort of skills that the noble Baroness, Lady Stedman-Scott, talked about, such as measuring their impact, knowing their cost base and, above all, being able to demonstrate that they are the best organisations to serve the people who need public services.

In 2007-08, the Public Administration Committee published Public Services and the Third Sector: Rhetoric to Reality, in which it asked: “Does size matter?”. It is a hugely important question. In future, public services that will be delivered by the third sector will primarily be those where it can be demonstrated that money is being saved elsewhere in the public expenditure budget. The problem with that is that often the people who deliver the services have real difficulty demonstrating the savings and the value to other parts of the public service system. Under the previous Government, Total Place budgeting began to address that issue. Under this Government, community budgeting is going to continue—but it has a long way to go before it will be possible for one public service commissioner to say, hand on heart, that giving money to a particular voluntary organisation has definitely saved money.

It is particularly important for models of preventive services—in other words, services that apply across whole communities that are at risk rather than to individuals. Will the Government put greater effort into developing the community budgeting skills of local authorities and of the voluntary sector? Community budgeting will only work, as the noble Baroness, Lady Stedman-Scott, said, if we have a commissioning process which is sufficiently flexible to deal with the major problems which we have. There is a question about how we configure large and small voluntary organisations in future to deliver public services on the scale which we know is going to be necessary. We know that in social care, in order to relieve the pressure on NHS budgets, the voluntary sector is going to have to deliver a lot of high-quality services. In conclusion, this is going to be a very turbulent but quite exciting time if the Government can assist the voluntary sector with two or three specific targeted things which I have mentioned. I hope the Minister will say that they can.

20:30

[Lord Adebowale]

My Lords, I will start by thanking the noble Lord, Lord Boateng, for his foresight in leading this debate. It is a very important issue which goes to the heart of what we might call a civilised society and the future of social services generally. In particular, it is a privilege to hear my good friends and colleagues, the noble Baronesses, Lady Stedman-Scott and Lady Barker, speak. Their comments were appropriate and timely. I was particularly keen to hear the philosophical reference to the ubuntu—something we should remember not just in the not-for-profit sector but in business generally. I declare an interest as the chief executive of Turning Point. I do not know whether Turning Point is too big or not. I am often amused by this reference to too big or too small in the not-for-profit business but not necessarily in any other business. Ours is an organisation that employs nearly 3,000 people and has services in 250 locations with a turnover of 80 million quid. That is not vanity; it is just a fact, and we will, I hope, make a surplus. The fact that we are not for profit does not mean that we are for deficit. This is an important point.

I want to refer to the not-for-profit sector’s and the voluntary sector’s contributions to health and social care, because that is my interest at the moment, and to the impact of spending cuts. In reference to health and social care, it is important to note that voluntary sector and, although I do not particularly like the word, not-for-profit sector organisations contribute a huge amount across a wide range of public services. I want to restrict my contribution to the health and social care sector, which is the focus of my day job. It is estimated that 57% of the not-for-profit sector workforce is employed in health and social care, which amounts to around 437,000 people. Over £4 billion-worth of health and social care services are provided by charities and social enterprises. Turning Point is a social enterprise. These services provide vital support to people at the sharp end of the inverse care law. It has been an ongoing theme of my existence as a Peer constantly to refer to the fact that those most in need of health and social care services tend to get them least. I could make reference to employment and other services that fit within that law. Often these people are at their most vulnerable and unwell. Not-for-profit organisations have specialist skills when it comes to delivering services to those with complex needs and the ability to innovate and offer tailored services that people can have confidence in was mentioned by the noble Lord, Lord Boateng.

The sheer size of the not-for-profit sector and what it offers means that its contribution to health and social care in particular is invaluable. However, both the public and not-for-profit sectors are facing very difficult times. The cuts are biting and we are all feeling the effects of reduced budgets. Many smaller charities are at risk of closing entirely. I think it is worth repeating the reference made by the noble Lord, Lord Boateng, to the Charities Aid Foundation which showed that one in six charities believe they face closure in the coming year amid public spending cutbacks and falling donations. Not-for-profit organisations are having to think long and hard about how they can remain sustainable when faced with local authority and health budget cuts while maintaining the quality of services and support that they provide to the people that need it. My own organisation, as has been reported and as some of your Lordships will be aware, is having to make some very difficult decisions in order to continue to provide high-quality services to support the most vulnerable people in society. The proposals that we are currently discussing with our staff and union were borne out of economic necessity and the decision to announce them was not taken lightly. The very tough economic climate means that we and other providers are facing the prospect of dwindling local budgets and the changing demands of commissioners who have less funds at their disposal.

I acknowledge that local authorities are working very hard to protect frontline social care services but it is a fact that they are facing a 28% reduction to their government grants. According to the Autumn Statement austerity is now also set to last for longer than expected—at least until 2017-18 if we are lucky—and the IFS has warned that more cuts will be needed in the future to plug the black hole in spending that it has identified of up to £27 billion. Given the vulnerability and lack of ring-fencing around much local government funding, the prospect of further cuts and their potential impact is deeply concerning. Everyone in the sector will have seen Barnet Council’s graph of doom which illustrates the acute social care funding pressure that local authorities are already facing as well as giving a warning for the future. The Government need to ensure that there is adequate local funding in the future so that fundamental social care needs can be met. Local authorities, care providers and the voluntary sector must be able to maintain and protect the quality of services and care that they provide. This is not just about the Government’s enthusiasm for the sector; it is about the Government’s ability actually to acknowledge the challenge facing public services at this time and to work in partnership with the not-for-profit sector, the private sector and the public sector to reverse the inverse care law.

20:37

[Lord Judd]

My Lords, as one who, like many others in this House, has spent a great deal of my life in voluntary agencies, I very much welcome the way in which my noble friend introduced this debate. It is absolutely undeniable that, with their integrity, experience, ethos and principles, voluntary agencies have a great deal to contribute to effective public service. They are free of the pressures of shareholders and profit. They are there to serve.

However, if this is to be the success that we all want it to be, we have to watch some issues very carefully. One is that this is genuine partnership and not simply voluntary agencies being contracted to provide a service defined by government. There must be an interplay between the agencies and the Government as to what the right services are and how they should be delivered. I was very worried once when I visited a young offender institution where there were dedicated workers on a contract to get those within the institution into jobs. As they did their work, they became convinced that there were quite a number of youngsters who were quite unfit to go straight into jobs and needed a lot more support, help and counselling before they would be ready to go into the employment sector. They got absolutely no credit for spending time on this; in fact, as they put it to me, they were endangering the contract because their job was to deliver people into jobs. That seems to be something we must look at very carefully, because it is a real danger, which could turn a good adventure into a sad story.

The other danger that we must take seriously is financial dependency. If voluntary agencies are working increasingly on government contracts, will their existence as agencies become dependent on that kind of income? I raise this because if I became convinced of anything in my time as director of Oxfam, it was that responsible advocacy could be one of the greatest services to those with whom we were working. By building real relationships of solidarity and real experience at the ground level, we were able to speak to government and society about the real underlying challenges we faced. I think it would be very unfortunate if, by the way that the scheme developed, agencies started self-censorship or dumbing down their advocacy role. That would be to betray their unique contribution.

As a member of the party I am in, I am in politics because I care about public services—I want the highest quality services. However, having worked in the voluntary sector, both as a volunteer and a staffer, I must say that the essence of the voluntary sector at its best is that it is a catalyst or challenge to society; it uses its experience to widen society’s outlook and to increase the sense of responsibly in society and, indeed, in government. As we take this opportunity forward, we must guard that principle as fiercely as we possibly can.

20:40

[Baroness Tyler of Enfield]

My Lords, I add my congratulations to the noble Lord, Lord Boateng, on securing this very timely debate and start by declaring my interest as president of the National Children’s Bureau and vice-president of the charity Relate. I want to focus briefly on the importance of the voluntary sector in delivering vital services to vulnerable children and young people, as well as to older people, and to stress the importance of collaboration between sectors.

The children’s voluntary sector represents a quarter of the voluntary sector—34,000 organisations, the vast majority of which are small, local and with a low budget. It currently relies more on public funding than the voluntary sector overall, so is particularly vulnerable to austerity. Research so far suggests that it is also struggling to access new funding streams such as private sector funding and the newly emerging social investment market. In 2012, the NCB and the National Council for Voluntary Organisations estimated that children’s charities face cuts nearing £405 million between 2010-11 and 2015-16.

Despite austerity and despite these cutbacks, the children’s voluntary sector is doing invaluable work to identify and address social inequalities that, if unaddressed, can last a lifetime. I will give one quick example, of a project called Making it REAL—Raising Early Achievement in Literacy. It is a great project, with the NCB working in collaboration with eight children’s centres. The programme so far has touched nearly 500 carers, parents and grandparents, nearly 400 child participants and nearly 150 younger siblings through home visits and events in Sheffield and Oldham. Parents have improved their knowledge and confidence to support their children’s learning and children have progressed to the stage where nearly 90% can name a favourite book, compared to less than a quarter at the start, and more than 70% enjoy books most days compared to a mere 13% at the outset. I say that to try to bring this debate to life.

There are many other examples that I would love to give noble Lords but I have not got the time to show how the voluntary sector can really add value to the way the statutory sector delivers its statutory services. There are so many excellent examples of co-operation, and a very good report—which I commend to the House—called the Ripple Effect has set out some very good case studies in this area.

The services delivered range from cradle to grave. I have talked about children’s services but will very briefly talk about the work of the WRVS, which has 43,000 volunteers giving practical and emotional support to 100,000 older people monthly. It co-ordinates public services, and the home from hospital services provide support to older people after hospital discharge. By carrying out very simple tasks, shopping or making sure the right foods are available, they make a huge contribution to older people’s reablement. As my noble friend Lady Barker pointed, out the NHS is spared hospital costs to a very large degree. It is a real win-win.

This debate allows us an opportunity to ponder the way forward. The voluntary sector offers great potential for help in joining up services and making the best use of limited funds. I know that the children and families voluntary sector is eager to work with the Government to create a strategy which will enable it to become more sustainable and resilient during these difficult times. It will need a two-pronged approach. The voluntary sector needs to do all that it can to manage reduced resources and cut costs, including pursuing different business models and mergers, investing in its voluntary workforce and reinvigorating its fundraising strategies in all the ways that it can.

The Government have a clear role in engaging with the sector to develop the sort of transformation strategy that will help small and local charities to become much more resilient. This is likely to work better if it brings together representatives of the voluntary sector, service commissioners and potential investors. Will the Government be prepared to enter into these discussions with the sector to try to develop this sort of transformation strategy?

20:44

[Lord Mawson]

My Lords, I thank the noble Lord, Lord Boateng, for this timely debate. I have spent the past 35 years demonstrating in practice how the voluntary sector can play a crucial role in innovation and in delivering public services in new ways that focus on the customer. How can it use its position, sitting between the often large bureaucracies of the public and private sectors, to bring much needed innovation in the delivery of public services?

The Health and Social Care Act eloquently mentions this. Integration, innovation, and enterprise are found in the legislation that encourages us to go local. These are important words, but words alone will not make this happen. New thinking and hard work are required. So how do we enable more voluntary sector organisations to win and deliver more public service contracts in a way that is a game changer?

First, you should start small and learn how to innovate and deliver public services well in one place before you exercise that overused phrase, “Roll it out”. The micro and the macro are connected. The Government should choose six projects located in specifically identified areas in the inner city, suburbia, the countryside and the north and south of England, and get it right in a few places and really understand what the blockages are, and not roll out a national programme before this has been done.

Steve Jobs obsessed about creating his first Apple store. He hid away for nine months in a warehouse and was fanatical about the small details. Apple is now one of the most valuable companies in the world. If the voluntary sector has a role, it must be in innovation, creating integrated customer-focused services and lifting the game. I worry that the Government have become very adept at talking and simply putting old men in new clothes.

My second point focuses on how best to get the voluntary sector to deliver. Simply encouraging it to play a role in delivering public services will achieve little. The rules, specifying to the nth degree how a contract is to be delivered rather than enabling the supplier to propose different solutions, possibly by integrating different services, constrict much needed flexibility and creativity. The VCS plays this bureaucratic game as well or badly as the public and business sectors. You are not good at delivery just because you are under the banner of “voluntary sector”. Flexibility is desperately needed, and I am pleased that the noble Lord, Lord Heseltine, makes this point in his important report.

If you want innovation, you need to create space for it to happen and reward it. It is amazing how the new academy infrastructure for schools, for example, is quickly starting to look exactly like local authority education departments by another name. This happened 30 years ago when the Government got hold of housing associations and dumbed down their entrepreneurial flair. The business community moving into the health sector is starting to look like a public sector response with a few more bells and whistles. Working relationships with social entrepreneurs are not cementing fast enough because the Government are not commissioning services to create new, lean, innovative relationships. Bureaucracy speaks to bureaucracy. It does not understand any other language. The procurement systems of this country are broken. I have tried to raise these concerns with the Government. The noble Lord, Lord Gardiner, and I have talked about this, but no one seems to follow through on the practical detail. We have tried, but I have received no practical response that is interested in getting hold of this detail.

Generally, the gap in expertise and imagination is in the statutory and public sectors. While there is a procurement college now for large contracts, will the Minister tell us where is the support for innovation in the £20,000 contracts and for the hundreds of thousands of statutory and quango staff? Real change in public service must involve senior leadership. Otherwise it will quickly be regressive. In relative terms, contracts to the VCS are small and so the senior staff—the CEOs—do not often get involved themselves. What would happen if the procurement processes encouraged this engagement?

The Prime Minister once talked about the big society but, like the third way, it seems to have lost its way. I am interested in small societies and those teams of local players who can make all the difference. In order to see results, we need to understand the practice of what people on the ground do, and we need to help them to grow and up their skills in an organic way. They must be encouraged by us to innovate and deliver more, but we must not put elephants on their backs. We should incentivise this joined-up leadership, encourage these relationships between business and social entrepreneurs and build them into the procurement contracts. This is how we will create social value and innovation and move it to scale. It is all about relationships.

20:50

[Lord Best]

My Lords, I, too, thank the noble Lord, Lord Boateng, for initiating this excellent debate.

I want to use my few minutes to make a practical point about the engagement of smaller charities and community-based organisations which currently find it very hard to win contracts to provide local services. Local authorities and health trusts, as well as central government, are often reluctant to entrust public money to these smaller bodies because they are unlikely to have capital to invest or assets to borrow against and they are inherently insecure financially, so there is a risk to public funds should they fail. Thus, despite the emphasis on localism and the fact that smaller bodies may well have the all-important trust of local communities, knowledge of neighbourhood issues, access to volunteers and real commitment at the grass-roots level, they lose out to major, national, often profit-making, organisations.

Sometimes the small charity or the community-based social enterprise finds itself used as “bid candy” to help the major players—the prime contractors—win contracts for public services, but then sees very little of the action thereafter. My proposal is that these smaller local bodies team up with the major housing associations operating in their area. Today’s housing associations are an enormously significant part of the voluntary sector. They are non-profit social businesses embedded in specific places with a full range of managerial skills that can provide the financial security and longevity which service funders desire. Together, the housing associations hold assets worth, at the last estimate, more than £109 billion. I declare my interest as chair of the Hanover Housing Association.

There is a large and growing number of examples of how this partnership between a quite small community-based organisation and a well resourced housing association can deliver a local service with an implicit guarantee against bankruptcy or failure because of the strength of the housing association’s balance sheet. A report out last week from the think tank ResPublica demonstrates how lots of housing associations are now delivering on the localism agenda by acting as vehicles, enablers, capacity builders and brokers for community activities of many kinds. I have time to give only one example. I visited a brilliant project in September supported by Aspire Housing, a housing association with homes in north Staffordshire and south Cheshire. The association has teamed up with a number of local social enterprises, of which this project was one, to provide employment and training for well over 1,000 young people each year by successfully organising apprenticeships and the skills that get them into work.

I accept that my proposal for more of these partnerships to enable the voluntary sector to deliver more and better public services could be undermined by welfare reform changes that impoverish housing association tenants and thereby jeopardise the finances of the housing associations, but that is a story for another day. Tonight, I would greatly welcome hearing the Minister’s response to this way of squaring the circle and enabling funders to work with a financially secure, well grounded, safe social business in the form of a strong housing association in partnership with really local voluntary sector, non-profit, charitable and social enterprises.

20:53

[Baroness Royall of Blaisdon]

My Lords, I am grateful to my noble friend Lord Boeteng for enabling this debate. It is especially important when all services are under immense and increasing pressure, due to a combination of cuts and increased demand. As noble Lords have said, this is a crucial time for decisions about the future of public services. I have always strongly believed in partnerships between local and national government and the private and voluntary sectors. For too long and for too many people, the goal was to move away from public services, notwithstanding their quality. What might be called the G4 moment at the Olympics removed ideological blinkers, so that once again quality and value are to the forefront. Quality and value—not just for money—must be the key. The Public Services (Social Value) Act is a significant step forward and should ensure that the additional social, environmental and economic benefits that an organisation provides will be taken into consideration when a contract is being awarded.

There are superb voluntary services in our country, which are innovative catalysts and add value, on which millions of often the most vulnerable depend and without which society would crumble. They are often community based, with real knowledge of, and a stake in, the community that they serve. However, the systems are complex and commissioning needs improvement, as so many noble Lords have said. I ask the Minister what the Government are doing to ensure voluntary sector involvement in the commissioning process. While it is right that charities should be enabled to deliver public services, they should not have to fill in the gaping holes which are left up and down the country as councils withdraw from certain services because of budgetary pressure. Many councils do a brilliant job and, with vision and innovation, provide or commission new ways of delivering services. However most have now made all the cuts that are possible without severely impacting on the citizens they serve. It is the voluntary sector that has to pick up the pieces when their own income is being cut.

Too often charities have to shoulder burdens caused by a shrinking state. As Sir Stuart Etherington, the NCVO’s chief executive, has said:

“Often it is charities, that are best placed to provide this specialist support and we are urging the Government to make a number of changes that would enable charities to play a fuller role. We know from our own research that charities are working extremely hard to service even the hardest to help, often by having to dip into their own reserves”.

Many noble Lords, including my noble friend, mentioned the Compact Voice report, which found that up to 50% of local authorities are cutting grant funding to the voluntary sector disproportionately. I hope that the Minister will not say that it is not a matter for the Government but for local authorities to choose how to spend their money. That simply would not do. Devolution of responsibility must not be dereliction of duty. Partnership working is crucial and one of the things we are trying to do in the Forest of Dean is to provide a comprehensive and seamless system of social care with our local NHS community services and community hospitals, working with Crossroads Care and other charities which are delivering services but wish to do more. However, as noble Lords have said, it is difficult for small charities such as the ones with which I am involved, like Forest Sensory Services, to get involved. The system is so complex and is devised for bigger charities.

The noble Lord, Lord Adebowale, spoke of the social care sector. Many public services currently delivered by the voluntary sector relate to vulnerable, marginalised and disadvantaged groups. The work is often not valued and salaries have historically been lower than they should be. We live in difficult economic times, when organisations and individuals are hurting, but I trust that the Government will do all they can to promote the living wage. Apart from being the right thing to do, it is a means of cutting back the budget for working tax credits. I am proud that 19 Labour councils now pay the living wage and many also ensure that those with whom they have contracts also pay the living wage. A living wage brings dignity and we have to raise the esteem we have for those who work in caring and other community services. Of course, many people in the voluntary sector are volunteers and we could not exist without them. A recent WRVS study showed that older people who volunteer are less depressed, have a better quality of life and are happier.

I close by celebrating the fantastic contribution that the voluntary sector and volunteers make to our society. As we look at the future of public services there is so much more to be done and we must do it.

20:59

[Lord Wallace of Saltaire]

My Lords, this has been an excellent debate and I look forward to many more on this theme. I thank the noble Lord, Lord Boateng, enormously for the way he introduced this debate. This is a cross-party and cross-government issue in which we are attempting to go through a major cultural change in the way in which the state, centrally and locally, delivers services in partnership with the voluntary sector, rather than simply as a contractor of it, as a number of noble Lords have said.

I am interested that no noble Lord has cited the new report from Social Enterprise UK, which contains some sharp language which I am sure that the noble Baroness, Lady Royall, would welcome, on the dangers of ending up, through outsourcing, with a private oligopoly of firms that are too big to fail and have a stranglehold on the outsourcing sector. The Government are aware of that, and a great deal of what we are now attempting to do is to make it easier for smaller enterprises and those which do not have the financial reserves and the skills to prepare complex contracts successfully to achieve a relationship with government. The Commissioning Academy is now getting under way, training central officials to simplify the contracting process between government and the voluntary sector, thus advertising small contracts available on government websites to make it easier to find out what is going on.

This is, of course, a long-term development and, in some ways, a revolutionary development. We are now admitting that we have a limited government and that we cannot provide for our society everything that is needed through the state itself.

At a meeting in Paris, I sat between one of my party colleagues in government and a senior French Minister. He was saying, “We share a similar set of problems. We in Britain are spending nearly 45% of our GDP on public services; but you are spending 55% of your GDP on public services”. I thought, “That is a very important gap”. Part of the problem that we all have—the previous Labour Government faced this—is that we have a public who resist paying higher taxes but want better services. That is a problem that is going to get worse in the next 10 to 20 years because our older population is growing. The possibilities of what one can provide in social care and healthcare are rising, so the pressures are intense. We have to find ways of providing a mix of state and voluntary services which can provide the quality that we need.

We hope that we are moving toward real partnership. Even there, I have to say that, as we are accounting for public money, and we are having to contract out public money, the question is how one achieves a balanced partnership where the state is paying and the Daily Mail is looking over the state’s shoulder to see whether it is spending the money properly. That is a relationship that we will have to learn about as we go on.

As we all know—I certainly remember from when I was a politician in Manchester—there is deep suspicion among large local authorities of the volunteer and the amateur. Only the full-time council employee could be trusted to do things. That is part of what we need to change. We also recognise that there is a deep problem in London. A lot of people in London—politicians, journalists and officials—do not really believe that people in Birmingham, Manchester or Leeds can be trusted to do things on their own. Manchester, Birmingham and Leeds are very large local authorities and, in their turn, do not trust some local enterprises which really understand what is happening in parts of Leeds or Bradford to begin to deliver the sort of public services which are needed.

As has been said by several participants in this debate, the voluntary sector is often best when it is small and local. The noble Lord, Lord Mawson, spoke about those teams of local players, and I think that he meant personal relationships. That is fine, but it does not fit the model of state provision of services. We have to find ways around that. The noble Lord, Lord Boateng, and others talked about giving instructions to local government. If we believe in pursuing the localism agenda, we have to encourage local government rather than sending the sort of mass packs of instructions that Governments have tended to do over the past 25 years or more. We have to encourage them to go in for community budgeting—double devolution, which the previous Government and this one have also talked about. We have to recognise that our city local authorities —Birmingham is larger than several European Union member states—have to be encouraged to push things down from the local authority level to the communities below them.

This is a set of challenges for the voluntary sector as well. As the noble Baroness, Lady Stedman-Scott, and others have said, a lot of social enterprises and charities do not have the skills needed to get into these large procurement exercises. The charities I have been involved in lacked accounting and legal skills. We have had to learn by packing the trustees and getting accountants and lawyers to provide their services pro bono. If you are going to be getting into contracting with the Government you need a certain level of contracting skills and that, again, is something which the Government are experimenting with as we try to simplify the contracting process.

Working relations with social entrepreneurs, as the noble Lord, Lord Mawson, knows well, are never going to be easy. The way in which states have to operate does not easily absorb the individualist—the entrepreneur—who wants to do things in an entirely different way. We have to live with that tension and we have to do our best to make it work. Although I recall with some amusement being told that various government departments have wanted to replicate in other cities in England what the noble Lord, Lord Mawson, has achieved in east London. They have worked on this but not quite found the right non-conformist Ministers to lead it. It is again part of the problem with the voluntary sector which requires determined individual leadership.

The Government are pursuing a partnership with the voluntary sector. We are learning as we go forward. We are experimenting, as the noble Baroness, Lady Barker, said, with new forms of financial assistance and support. We are very conscious, for example, that in one or two cases social enterprises have failed in bidding for government contracts because they could not demonstrate that they had the financial reserves to guarantee that they would be able to carry out the contract through a particularly difficult period.

We all hope that the Public Services (Social Value) Act, which is just about to come into operation, will help a great deal although estimating and calculating social value and standing up to the Public Accounts Committee asking you whether your department did deliver social value may not entirely be an easy thing to do. I am also engaged through the Cabinet Office in Civil Service reform. Getting officials out of their offices and changing the ways they think about the sort of services they are delivering again is part of this whole process. The voluntary sector, in turn, also has to adjust.

I was fascinated to hear the noble Baroness, Lady Barker, talk about a period of turbulence. In political science there is the phrase “creative destruction”. I fear that what she is suggesting is that some charities will fail to make the grade and others will come into greater prominence. However, when one looks at the figures of turnover in the number of charities registered with the Charities Commission one realises that this is a continuing process. Charities die; other charities come into effect.

The noble Lord, Lord Best, said something extremely interesting about housing associations. A couple of weeks ago a good friend of mine who has just retired from a big housing association was making almost exactly those points. Housing associations have the funds, the presence and the weight to be able to do a lot of things that smaller and more fragile bodies cannot. I think that is a model we all need to take on board. Housing associations can actually do broader things within the local communities of which they of course form a part.

We are learning as we go along. The Government and the voluntary sector know that this is a long journey. We will be publishing tomorrow a new document about making it easier for civil society organisations to do business with the state. I think it will address some of the issues that the noble Baroness, Lady Tyler, raised in her speech. This is of course part of a process whereby we hope to be building a better and easier relationship with the voluntary sector. It would be much easier if the economy were growing at 2% to 3% a year but, in the circumstances where the economy is not growing, we all hope that in two or three years’ time that will be the case. Our aim should be a plurality of social enterprises, charities and others working with local government and with agencies of national government to deliver the quality of services which we need in an increasingly difficult environment, with an older and more diverse society. That society will be coping with a very large range of different challenges.

House adjourned at 9.10 pm.