Grand Committee

Monday 21st July 2014 Grand Committee

Monday, 21 July 2014.

Arrangement of Business

Monday 21st July 2014 Grand Committee

Announcement

15:30

[The Deputy Chairman (Baroness Fookes) (Con)]

My Lords, the usual reminder: if there is a Division in the House, the Committee will adjourn for 10 minutes.

Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014

Monday 21st July 2014 Grand Committee

Motion to Consider

15:30

Moved by

[Baroness Neville-Rolfe]

That the Grand Committee do consider the Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments

[Baroness Neville-Rolfe (Con)]

My Lords, I am privileged to be here speaking for the first time as a Minister for the Department for Business, Innovation and Skills and moving my first piece of business in this House. I should say that I value the work of this House and its expertise very highly.

In a traditional collective licensing arrangement, the relevant licensing bodies—or collecting societies as they are otherwise known—are mandated by their members to manage their rights. Extended collective licensing—which I will refer to if I may as ECL—allows collecting societies to license on behalf of all rights holders who fall in the scope of the ECL scheme. This includes rights holders who are not members of the collecting society and have not given it a mandate to license their rights. They become part of the ECL scheme by default unless they say otherwise. This is known as opting out.

ECL can be used to simplify licensing, reduce costs and increase the amount of legally available copyright material. With an ECL scheme in place, a collecting society can issue the comprehensive licences that its customers demand, but without the risk of infringing non-members’ rights. Consequently, there should be improved compliance with copyright law, enhanced confidence in the UK copyright system and increased returns to non-member rights holders, because the regulations make clear provision for how and when money should be paid to them.

It is well known that de facto ECL schemes are already in operation in the UK. Their existence reflects market demand. Statutory ECL will allow collecting societies running such schemes to put their businesses on a legal footing and protect rights holders’ interests.

As ECL schemes allow for the licensing of non-members’ works, it is essential that they are afforded strong protections. As I shall outline, this is the golden thread that runs through these regulations—golden light dawns. An ECL application simply cannot get off the ground unless the collecting society has a mandate from its members. Not only must it prove that it is acting with the informed consent of a substantial proportion of its voting members, it must also show itself to be significantly representative of the rights holders affected by the ECL scheme. Members’ views and their informed consent are at the heart of an ECL application. They are a good proxy for non-member rights holders, who can reasonably be assumed to share the same interests.

We have been fleshing out the concept of informed consent with stakeholders in recent weeks. The elements that go to making consent informed will be outlined in the legal guidance that accompanies the regulations. It will cover who should be balloted, how they should be balloted, what information they should be given, and so on.

I pause here to say that this work with our stakeholders is but one example of the in-depth research and consultation that we have been conducting since the passage of the ERR Act, taken through under the stewardship of my predecessor, my noble friend Lord Younger of Leckie. We have convened working groups that ran until September 2013; conducted a technical consultation between November and January 2014; developed the regulations and published the government response in May 2014.

The Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014—the codes regulations, for short—which were taken through on 6 April this year, provide a further safeguard for rights holders. They require collecting societies to self-regulate with codes of practice that comply with minimum standards of governance and transparency set by the Government. The Government can act to remedy any problems in the self-regulatory framework. Collecting societies’ compliance with their codes is reviewed regularly by an independent code reviewer, whose evidence will form part of any ECL application.

In addition, these regulations make provision for a period of representations lasting a minimum of 28 days. This is an opportunity for any interested parties to comment on anything related to the ECL application, including the credibility of the collecting society. To cater for the possibility that, despite these safeguards, an ECL scheme is operating less than optimally, the Secretary of State has the power to modify or revoke an ECL authorisation.

The regulations allow for an initial, renewable authorisation period of five years. This mirrors successful ECL schemes in the Nordic countries. Libraries and archives have argued for a longer authorisation period to encourage digitisation. However, the Government feel that the soundness of an ECL scheme must be properly tested within a shorter period of time. As a compromise, if the ECL is renewed, it can continue indefinitely, subject to three-year reviews. These are light-touch unless there are grounds for further scrutiny. This should help facilitate digitisation while still protecting rights holders.

The right of a non-member to say no or opt out is absolute. This allows the non-member to withdraw from a scheme both before and after it has commenced. To facilitate opt-out, the collecting society must show how it will alert non-members to the scheme when it applies. Collecting societies have an obligation to make reasonable efforts to find and pay non-members. Their efforts will be assessed during the renewal and review processes.

I hope that these regulations provide noble Lords with the detail that they asked for and that we promised when the then ERR Bill was at Committee and Report stages. ECL schemes in the UK should benefit licensees, collecting societies and rights holders alike. The Government have put in place a flexible and balanced framework that safeguards the interests of non-members and ensures that ECL schemes are possible only where they have been demanded by the market and sanctioned by rights holders. ECL schemes will enhance respect for copyright, help rights holders get paid and allow for more streamlined licensing so that a greater number of works can be circulated and enjoyed legally. The Government believe that these regulations are a reasoned and proportionate reform and I commend them to the Committee.

[Lord Howarth of Newport (Lab)]

My Lords, perhaps I can be the first to congratulate the noble Baroness, Lady Neville-Rolfe, on her appointment and I welcome her to her new responsibilities. She will bring her experience of administration, business and politics to a fascinating, important and very difficult portfolio, and I wish her well. However, I think I can say on behalf of all noble Lords that we were very fond of her predecessor, the noble Viscount, Lord Younger. He was invariably patient, courteous and helpful in the way that he dealt with issues raised by noble Lords, and I thank him for that. I think that the noble Baroness may be the eighth intellectual property Minister in seven years, which raises a question as to whether, in the institutional life of this country and our culture of government, we organise things very sensibly. This kind of discontinuity cannot make for good-quality government. If policies are well developed, it is in spite of the system of ministerial appointment rather than because of it. It is not only the IP portfolio but a whole series of others that have been subject to these vicissitudes and prodigalities, and all parties have been as bad as each other. It is a cultural, political and governmental problem for us all.

As it clearly cannot be anticipated that the noble Baroness will still be in post beyond 7 May next year, she, too, is unlikely to have very much time in the exercise of these responsibilities. However, I am sure that in the few months allowed to her she will think radically about how we may better balance the interests of the wider public against the legitimate claims of creators, and will think about what dispositions in copyright policy may be appropriate in the digital age, when reproduction can be made at zero marginal cost. There are massive issues that I am sure she will work on, and I hope she will work on them fruitfully. However, before I am reproved by the Committee I must narrow my focus to the specific provisions of this particular statutory instrument.

I will say a few words on behalf of the British Library. I was its Minister—I had ministerial responsibility for the British Library for some years—and I continue to stay in quite close dialogue with it. As the country’s national library and one of the leading research libraries of the world, its interests and concerns ought properly to be taken into account—as I am sure they are—by the Government, and will be by this Committee. The British Library has no problem with the principle of extended collective licenses—and nor do I. We debated that principle at great length in our proceedings during the passage of the Enterprise and Regulatory Reform Act.

I will press the Minister a little further on one aspect which she touched on in her remarks. Mass digitisation of library content is very costly. Among the costs are project management, scanning, digital platforms, hosting and licensing. All those procedures and operations are expensive. The British Library enters into public-private partnerships with publishers and other collaborators, and there is an anxiety for the library and its commercial partners that it may not be possible to recoup the costs of investment in mass digitisation within the five-year timescale that the Government have set as a limit.

The Government want the regime to facilitate mass digitisation of all sorts of material that is out of print and not commercial but of great interest and potential, and which is still in copyright and cannot under the present regime be accessed by people online—you have to visit the library if you want to see that material. That is a great inhibition on education, research, innovation and creativity, so this is important in all our interests. Indeed, it is important in the interests of authors, because authors of such works may then find that their works find a wider audience, and they may indeed receive royalties through the licensing body. So it is in nobody’s interest at all that the system should not work as it is intended to work.

I am therefore puzzled that the Government have decided to set a five-year limit on the terms of licences. The British Library’s existing licensing agreements with its commercial partners last for longer than five years—usually 10 years or more. In Scandinavia, which the Minister touched on, they have been running ECLs, so far as I know, with no set time limits since the 1960s. Very recently, in France, in 2012, and in Germany, in the present year, functioning ECL regimes have been set up which allow the digitisation of out-of-commerce works—in the case of France in the period up to 2000, and in the case of Germany up to 1966. I am not aware that the European Union is asking for any limit on the duration of licences. The European Commission’s 2011 memorandum of understanding on digitisation of out-of-commerce works does not mention any duration for such licences, and the public sector information directive 2013, which is currently being implemented in the UK, also contains no maximum duration for the period of exclusive licences for the digitisation of public domain items. I am perplexed as to why the Government are out of line with European counterpart countries and have adopted an approach which is not sanctioned or encouraged by the European Union.

15:45

We are where we are, and the Government have introduced this regulation, but I ask them to consider reviewing the existing regulation after a year to see whether it is facilitating or failing to facilitate digitisation. If it is found that there has been a chilling effect on digitisation, that investments have not been made and that the new partnerships have not been formed, I hope that the Government will consider separating the limit on the duration for which a collecting society can operate an ECL from the length of the licence that the collecting society can offer its customers. In other countries, that is either longer or left completely open. I would be grateful if the Minister could explain why the Government have introduced this particular feature of the statutory instrument and indicate whether they will be flexible, if it proves not to work well in practice, in seeing whether it can be modified to overcome the unfortunate consequence that the British Library and other cultural institutions fear.

[Lord Clement-Jones (LD)]

My Lords, I warmly welcome my noble friend the Minister to her new role. I have known her in a number of previous incarnations and have no doubt that she will be extremely effective in her role as IP Minister. She will soon realise that these debates on copyright involve the usual suspects on most occasions.

I certainly hope that the Minister will continue the good work of her predecessor, our mutual noble friend Lord Younger, who was so assiduous in his work, variously in this House during the passage of the then ERR and IP Bills and otherwise in his briefing to colleagues and enthusiasm in building relations with rights holders and the creative industries, to the point where some of the bad taste left by the Hargreaves review has to a considerable degree been dispelled.

We had extensive debate on ECL during the passage of the Enterprise and Regulatory Reform Act. We have also, in the mean time, seen the passage of the Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014, to which my noble friend referred, relating to collecting societies.

The Government’s explanations always described ECL as “voluntary extended collective licensing”, but the fact is that ECL allows the licensing body to license rights without the prior authorisation of the rights holder. So ECL, as I emphasised during the passage of the Act, is potentially dangerous to rights holders. However, the fact remains that—as the Minister told us today, and as we were informed in very timely fashion in correspondence last week from the chief executive of the IPO, which I very much welcomed—the assurances about safeguards given during the passage of the ERR Act have been delivered in these regulations.

The suggestions that a number of us made on Report and otherwise during the passage of the ERR Act were essentially translations of the Nordic statutory provisions adapted to our own copyright regime. I am pleased to see that we have incorporated many of those as a result of the careful consultation process. These safeguards, taken together with the previous collecting society regulations, usefully include, as my noble friend outlined, matters such as the need to explain the type of licence being granted in terms of the types of works and uses in scope, and the need for the authorised body to be representative and acting with the approval of the membership. I agree that an absolute threshold for either is not practical and applaud the provision requiring informed consent. The safeguards also include the adoption of a code of conduct and the powers of the Secretary of State in relation to codes of conduct, especially where non-members are concerned; the ability to refer to the Copyright Tribunal where a claim is being made that the body is not representative or that licences go beyond the scope of existing copyright licences; the requirement to give details of opt-out arrangements and to publicise ECL schemes to non-members; a limitation on the term of initial authorisation to five years, with schemes being subject to renewal; a 28-day period, also referred to by my noble friend, in which representations can be made before the Secretary of State grants authorisation; and clear provisions about the ability to give notice of exclusion of a work. Although I would have preferred them in the primary legislation, I welcome the Government’s adoption of those safeguards in the regulations.

At Report stage on the Act, however, I raised a number of issues that are not, I think, covered by the regulations. There are a number of other issues involved as well. The first is the ability for rights owners to opt out in a manageable way. In Grand Committee my noble friend Lord Younger made a commitment that the working group on extended collective licensing would be asked to consider whether the right to opt out should be extended to exclusive licensees and their representatives. I am pleased to see that under the regulations they can indeed opt out. But as I said on Report:

“It will be unworkable to have an opt-out which is exercisable only by the copyright owner or exclusive licensee”.

Can we assume that authorised representatives can do this on behalf of rights holders?

As I also said on Report:

“In Hungary, one reason for the failure of being able to rely on the opt-out came from the requirement of Artisjus that the rights owner—not any representative—provide due diligence evidencing ownership of each title in question”.—[Official Report, 11/3/13; col. 35.]

In the context of ECL, the burden of challenging any opt-out must sit with the entity operating the scheme and not with the individual right owner. My noble friend Lord Younger said on Report that,

“the Government’s intention is that the burden of proof should favour the party seeking to opt out … It will be the responsibility of the collecting society to operate opt-out schemes which meet the needs of effective rights holders. They will need to demonstrate how they intend to do this when they apply to operate an ECL scheme”.—[Official Report, 11/3/13; col. 39.]

Will my noble friend give assurances that this has been translated into practice in the regulations? Will collecting societies be asked specifically about the burden of due diligence when authorisations are being considered by the IPO?

Secondly, as regards the possibility of an independent body to consider applications, I cannot discern in any of the regulations that any third party is tasked with evaluating the data emanating from collecting societies when authorisations are sought. This would help to prevent disputes with non-members. Will the IPO be doing this? Will it have the resources? Will it have the expertise? Is this the appropriate way to proceed?

Thirdly, since we first debated ECL we have seen the approval of the EU directive on collective rights management, which will not come into effect until 2016. I welcome EU regulation that moves us towards a common European digital economy but, specifically, how do these regulations and the directive potentially impact on each other? Does this mean that collecting societies can eventually go beyond the UK in their ECL schemes? Will they incorporate the same safeguards if they do? Should we not be incorporating the ability to choose collecting society that is contained within the directive? I certainly know that organisations such as the British Association of Picture Libraries and Agencies would be very keen to see the incorporation of that choice in these regulations and not to have to wait until 2016.

Finally, there is the question of the five-year initial authorisation. After discussion in the consultation and the Government’s response, it is clear that the initial authorisation period is five years, but what is the intention regarding subsequent periods? Do the Government envisage that the periods after that initial period will in fact be longer, which may meet some of the requirements that have already been debated?

At the end of the day, it will be necessary for collecting societies to demonstrate to member and non-member alike that they provide value for money in operating ECL. Given the emergence of the Copyright Hub and new technology, the question for the creator or right holder will be: what are the advantages of not opting out of an ECL scheme? I hope that all the time and effort expended on establishing an ECL regime proves worth while.

I remain an ECL sceptic, I am afraid to say, not least when I see the original 2012 impact assessment appended to the Explanatory Memorandum. It contains some magnificently speculative language on the prospective benefits, especially economic activity and growth in the form of unspecified,

“further value creation and cumulative innovation”.

However, there will be great swathes of creative content that will not be covered: film, television, photographs, news footage, footage on YouTube and so on. So rather like the Libraries and Archives Copyright Alliance—although perhaps for rather different reasons—which says in its briefing that it would like potentially perpetual licences, which I thoroughly oppose, I am not going to hold my breath waiting for ECL to have a dramatic impact. Far more significant to the successful and effective exploitation and licensing of copyright works is the Copyright Hub and its successful rollout.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I join others in welcoming the Minister to her first outing. I have rarely seen a smoother and more effective transition from Back-Bencher to Front-Bencher. She seemed to take to it as though she had been doing it all her life—indeed, so much so that the government Chief Whip, who crept in at the start of the Minister’s remarks, presumably just to make sure that she had made the right decision, left almost immediately, smirking widely. The Minister seems to have passed whatever test that was, and I congratulate her.

I also play tribute to the noble Baroness’s predecessor, the noble Viscount, Lord Younger, who, as has already been said, has been very good on this issue: patient, courteous—yes, all that—but also a fantastically good letter writer. I hope that the Minister might pick up from him his ability to find one or two issues that came up during these debates and discussions which required him to write us letters which served as a good way of catching up on what had been talked about and picking up on the points that occasionally get missed. That is not mandatory, but it was something that we all welcomed and enjoyed.

As others have done, I also thank officials for their work on this SI. It is the first time that I have ever had a briefing from no less than the chief executive of the IPO—which made me tremble slightly as I opened it up and realised what it was. It was good to have. Maybe it is not a change of view, but one of the concerns that we have had over the plethora of activity that has come out of the Hargreaves review has been a slightly defensive attitude on the IPO’s part, which I felt was manifested in meetings and correspondence. If this is the new IPO under the new Minister, she has effected change in a remarkably short time. It very welcome and long may it continue.

The Minister will already have realised that she is entering an area of deep expertise from a very small number of people in your Lordships’ House. There are usually one or two more of us than there are today—we are feeling a bit bereft of other noble Lords and Baronesses. However, we geeks like nothing better than to get our teeth into a bit of IP and feel that a day in Parliament is wasted if we have not had some meaty issue to chew over. I am delighted that we are back on track and look forward to more of these debates.

This instrument has a long pedigree, as has already been mentioned. We have been talking about the passage of the ERR Act of famous memory, during which some of the debates around the Government’s approach were rehearsed over a long period of time. Out of that has come some good, however, because I am sure that the thoughts that informed those debates have been reflected in some of the outturns that we have seen today. As the noble Lord, Lord Clement-Jones, was right to point out, this area is not free of others who might wish to make regulations. We have a European directive on this and a number of similar areas that is still to come through within a couple of years. There is also the ongoing work of the non-statutory but important Copyright Hub, which will in time prove very capable of dealing with so many of the issues that we have been looking at.

In looking at collecting societies, we should have at the front of our minds the fact that this is a process of dealing with a regulated monopoly. As such, it is important that Parliament should exercise as much scrutiny as possible in these areas. We are broadly disposed not to accept monopolies, even though they often occur and exist in many parts of the economy. However, in this area we are permitting them to exist and, indeed, encouraging them to take their work further. It is therefore important that we spend time on thinking through the implications, certainly those raised by the noble Lord, Lord Clement-Jones, and my noble friend Lord Howarth.

16:00

This measure takes the idea of monopoly further in the sense that it seeks to move into areas where rights holders are not currently obtaining the benefits that may be provided by a collecting society, and to some extent are making it more likely than not that they will join into the monopoly to benefit from what is going on. Dealing with real property rights, we clearly have to be careful about how that is done. It is therefore not a surprise that the regulations themselves are extremely complex and quite long. That is a good thing. What is a bit less good, and perhaps something that we might ask the noble Baroness to respond to, is why the detail that is already in the regulations needs to be accompanied by what is called a legal opinion, which will be circulated when these go out. What is the difference? Is there more detail that we have not had? I can guess that other noble Lords have raised points that might be part of it. Like the noble Lord, Lord Clement-Jones, I am slightly worried about there being sources of authority in relation to how this will be implemented in practice that are not being scrutinised at the moment but which are being left to come out and will, in fact, be the vehicle through which collecting societies themselves and rights holders are expected to operate. We should be grateful for the Minister’s comments on that.

However, it is extremely good to have confirmation from the chief executive and also to read in the final regulations that the regulations have been amended through the debates we have had in this House and also through discussions with the industry. That is all for the better. I sense from talking to those who have submitted comments to me that we are at a point where this has broad acceptance, even if it is not an ecstatic welcome, right across the industry. That is good.

I have four points that I want to raise. One is very trivial in that I want to record that I am pleased that the Government have now accepted that their statutory instruments should come out on the two vesting dates. This one is due to come out on 1 October. That system was departed from with two earlier SIs on this copyright area, and I think that that is to be regretted. The reasons for the entry of these new regulations are good and robust, and it requires very specific reasons not to do it. That is not the case in this area.

Secondly, the regulations touch on fees that may be charged. It is always important to have a sense of what is being talked about. There are fees in two directions, as far as I can see: the fee that will be charged by those authorising collecting societies, which are limited to the recovery of expenses; and the fees that may be charged by the collecting societies to their members in relation to the work they are doing in servicing the rights holders in respect of the remuneration that they might recover. Unfortunately, there is very little detail on that. Like the noble Lord, Lord Clement-Jones, I looked back at the initial impact assessment and could find very little about it. It is not an impact assessment in terms of money, although it does deal with some of the legal issues. I would be grateful if the noble Baroness could give us some sense of where she thinks those fees will lie. We need to have a sense of that, even though it will depend on the actual costs. Work must have been done on that. If she does not have the figures today, it would be a good topic for a letter.

Thirdly, there is the question of the mandate, as I call it. The noble Lord, Lord Clement-Jones, raised this point. Why are the regulations so coy about when it is feasible for a collecting society to start operating an extended system? We are talking about “substantial majorities”, “significant support” and “informed consent”. We are quite used to democracy in our country. Is there something being hinted at here that is not meant to be discussed in polite society? Is this some sort of code for a 75% majority? Why is it not just a simple majority of members voting in an open election perhaps run by the Electoral Reform Society, or something like that? That is the normal way to do these things. Even trade unions do that sort of thing. I cannot believe that it is so difficult for the Government to come up with a nice simple phrase that says that a majority of members voting in this will be sufficient for it to take effect. I should be grateful if the noble Baroness would respond on that.

Fourthly, like my noble friend Lord Howarth, I am also very confused about the duration point. The first time that it comes up there is a very fearsome statement that the duration will never be more than five years. Two pages further on, however, there seems to be the possibility of open-ended and permanent durations. I can see the issues that must have been in the drafters’ minds: “This is new; we are dealing with monopolies; it is difficult; therefore we will set a firm time limit”. However, all the responses we are getting are about the need to ensure that this is long term, not just for the institution itself but because contracts with private companies will need much longer terms to recoup the investment they might put in for perhaps the larger data transfers.

There is obviously a tension here. I can understand the issues, but I question having five years initially and the inability to apply for an extension until three years have passed. Incidentally, this is accompanied by what seemed quite a draconian—a sloppy word, I admit—or substantially bureaucratic requirement that review is to be on a three-year basis. For the review, there is a page of detailed requirements that ECL schemes must comply with, which suggests that the scheme is being quite heavily policed. I just wonder, like the noble Lord, Lord Clement-Jones, whether we have got the balance right. Clearly the regulations will stand as they are, but when there is an opportunity to review them, perhaps this point can be taken into account.

Having said all that, I am broadly in favour of what is happening. I do not share the concerns that the noble Lord, Lord Clement-Jones, has about the regulations. I think that they are good both for society and for the economy, although we have very little to go on except a sense among the industry that this will be, for certain big institutions, a very important change and should result in more royalty payments and therefore greater earnings for people who have rights that they currently do not exercise. I ask the noble Baroness to respond to that series of questions.

[Baroness Neville-Rolfe]

I thank noble Lords for their valuable and supportive comments and, indeed, for their very kind welcome this afternoon. I share the warm words that have been said about my noble friend and predecessor Lord Younger of Leckie. I will do my best to be an equally hard-working and successful Minister. I am also a great fan of the art of letter writing, and if I can learn from him and use that well in my departmental responsibilities and in the House more generally, I will be very pleased. There is one plus to the change, which is that there will be even more people in this House with a knowledge of and a passion for the complicated subject of IP. I assure the House that I come to this area with great passion. I was especially delighted to be offered a role in carrying forward such an important agenda.

ECL is a tool that can be used where there is market appetite for it. That appetite has to come from licensees, the collecting society and, most importantly, the rights holders. The Government cannot impose ECL on a sector; rights holders must want it. It is not possible for the Government or anyone else to force it on the rights holders. It is not possible without a significant representative collecting society acting with the informed consent of its voting members. It is not possible for a non-member to be forced to stay in a scheme. This is because there are a number of safeguards for all concerned. My noble friend Lord Clement-Jones commented positively on the safeguards, and I have gone through some of them. Their range includes: the absolute right of non-members to opt out; the ability of any interested party to make representations about any ECL proposals; and, of course, the minimum standards of good governance and transparency which an authorised collecting society must adhere to and offer.

The noble Lords, Lord Howarth and Lord Stevenson, referred to the length of the authorisation and the practice in other countries. The Government believe that, following an authorisation, it is essential that the ECL is thoroughly scrutinised within a relatively short period to ensure that it is running smoothly. This is particularly so given the additional powers granted to an authorised collecting society. The length of the initial authorisation period is not dissimilar to authorisation periods in the Nordic countries, where ECL schemes have been running successfully for many years, as has been said. The renewal process is designed to strike a balance between the business continuity and low cost, desired by some licensees, and the need to ensure that all those affected by the ECL can continue to have confidence in it.

It is therefore the Government’s view that the renewal process should be open and transparent so that representations can be invited. A renewal application would need to include evidence of the performance of the collecting society in respect of non-members and a number of other features. If the ECL is running smoothly, the renewal process should not prove a barrier. If it is not, the ECL would have needed to be revoked anyway regardless of the length of the authorisation. The Government believe that the authorisation period is balanced and proportionate, reflecting a legitimate need to look at an ECL at a relatively early stage. As I said in my opening remarks, there is a light-touch renewal period after that.

Obviously the Government have sympathy with the efforts of libraries and archives to digitise their collections. However, those efforts cannot be at the expense of safeguards to ensure that ECL schemes are functioning properly, and one of the safeguards is an initial authorisation period of five years. It should also be remembered that only collecting societies can make ECL applications. If a licensee cannot interest a collecting society in the possibilities of an ECL scheme because it makes no financial sense to the collecting society or because member rights holders oppose it, that is a matter for the collecting society and the licensee. The Government have no role to play in this process, and the regulations may not be a factor in what is essentially a commercial decision. It is the Government’s understanding that digitisation projects are not a first-order priority for collecting societies. It is therefore unlikely that there will be applications for such schemes in the first few months. For these reasons, the Government do not think it appropriate to commit to a review in a year’s time.

[Lord Howarth of Newport]

Will the noble Baroness deal with the point that a distinction can be made between the period of authorisation of a collecting society to go about its business—there may well be a very reasonable case to limit that to five years and then to see whether its performance has been good and it should be allowed to continue on the one hand and a licence that is given, for example, to a library to undertake mass digitisation? It does not follow from the need to be sure that the collecting society is doing a proper job, in general, that you have to restrict the licence that it approves to a period of five years. In fact, it can be extended beyond five years, to 10 years perhaps, or further. Can she deal with that, please?

[Baroness Neville-Rolfe]

Perhaps I may comment on the point about the EU directive and then come back to the point that the noble Lord has raised.

My noble friend Lord Clement-Jones and the noble Lord, Lord Stevenson, talked about the EU directive and the interaction between the regulations and the directive. Where relevant and where we have the powers to do so, we have in fact included the provisions from the directive in these regulations. The rest will need to be consulted on—in my view, a vital part of good legislation—and will then be incorporated in time for the coming into force of the directive in, I think, 2016. To give more detail, I should add that where there are concepts that we do not need to consult on that are relevant to these regulations and for which we have the legal power—for example, the definition of a collecting society—we have actually included that in these regulations, obviously with the objective, which I think we share, of keeping administrative and regulatory burdens in this important area to a minimum, while having proper governance.

My noble friend Lord Clement-Jones also talked about the risk of disreputable collecting societies running ECLs. Any collecting society applying for an ECL authorisation must already be licensing the types of works that are subject to the authorisation. The codes of practice regulations which became law in April 2014 are intended to support a system of self-regulation by collecting societies by giving government powers to close any gaps that may emerge in the self-regulatory framework. This should strengthen confidence in the operation of collecting societies. As part of the self-regulatory framework, the collecting society must allow for an initial independent review one year after implementation and further reviews every three years thereafter. Any collecting society applying for an ECL will need to have a code of practice in place. Any collecting society that fails to comply in all material respects with its code of practice would run the danger of having its authorisation revoked. This power can be invoked at any time during the authorisation period. Interested parties concerned about an ECL scheme can make representations to the Secretary of State at any time during its operation.

My noble friend also asked about the Copyright Hub, which he felt could be more valuable than ECL. The industry-led Copyright Hub project is a very important attempt to make licensing easier and more valuable. ECL is likely to complement the hub by allowing broader collective licences to be offered by the hub. However, both use of ECL and use of the hub are of course choices for rights holders; government is merely offering a new choice to collecting societies.

16:15

The noble Lord, Lord Stevenson, said that this involves property rights and that it is important that we get it right, which I agree with. Helpfully, he broadly accepted that we were trying in the regulations to do what we said we would do during the passage of previous legislation.

The noble Lord raised four points, the last of which I think I have dealt with. He said that he was pleased that the SI was vesting on one of two vesting dates, 1 October. As a former businessperson, I very much agree with him on this point. It has been a change that has come about in recent years that has helped business a lot, and I am proud of the fact that this regulation comes into effect on 1 October.

The noble Lord also asked a perceptive question about fees charged and expenses. My understanding is that the cost of licences is negotiated with licensees, and the obligation to do this is in the code of conduct. There is recourse to the Copyright Tribunal, which regulates the price of a licence. If I have not satisfied the noble Lord, I will very happily take recourse in this new art, the art of letter writing.

The point was made that there is not enough detail in the regulations around “informed consent” and “significantly representative”. We have deliberately not defined those concepts in the regulations because there is often a great difference in the operation of collecting societies in different sectors, as I am sure noble Lords will understand. That was strongly evidenced in the consultation, which showed that different sectors wanted and needed different thresholds to make ECL work for them. Putting the detail in the accompanying legal guidance gives us the flexibility to cater for those differences and to cope with future changes. The guidance will be available when the new regime comes into place and it is hoped that it will meet the concern raised.

[Lord Stevenson of Balmacara]

I am grateful to the Minister for rehearsing that point, but I really still do not quite get it. She said that it was possible that different collecting societies would have different thresholds at which informed consent would be deemed to have been properly researched and implemented. Can she be quite clear that we are not talking about a minority of members of a collecting society being able to impose some sort of structure on other right holders at—let us take an arbitrary point—50%?

[Baroness Neville-Rolfe]

I think that this issue merits further discussion, which might need to be the subject of the new art of letter writing.

If I may, I would like to come back to the point made by the noble Lord, Lord Howarth—that libraries do not need regular checks on digitisation projects. All ECLs, including those for digitisation, must be balanced with safeguards for non-members. It is this which has led us to the view that we need regular reviews. Libraries and archives are very important to us, as are digitisation projects, but, as I said earlier, this does not seem likely to be the main focus of use of the provision in the early stages.

[Lord Howarth of Newport]

If it turns out that this five-year limit is inhibiting investment and choking it off, and evidence is seen to that effect in a year or two’s time, would it not be sensible for the Government to take another look at this? The Government have made it clear in the impact assessment and elsewhere that they want the kind of mass digitisation projects that could be undertaken by libraries, archives and other cultural institutions to happen, but that needs very significant investment. Those who are to put up the investment capital for this need to be confident that they are going to get a return. They are saying that the timescale of five years is insufficient to get the return. With the uncertainty about licence renewal, there is a real danger that the investment will not occur. Would it not be sensible for the business department to keep an open mind on this and be willing to look at it again if there is evidence that the policy is inhibiting investment?

[Lord Clement-Jones]

Perhaps I may add a question so that my noble friend can answer them all in one fell swoop. Strangely enough, although I agree with the five-year initial term, it not clear, as the noble Lord, Lord Stevenson, pointed out, whether a subsequent authorisation can be longer than five years. The noble Lord, Lord Howarth, might be entirely delirious with a 20-year extension. I would not be very keen on that but he might think that it was a wonderful thing. But from my reading of the regulations, it is not clear whether or not that subsequent authorisation could be longer than the initial authorisation.

[Baroness Neville-Rolfe]

The noble Lords have raised good points in their passion to get this right. I would like to look at this and write to the noble Lords about what can be achieved. There is good sense in having clarity for five years to get things off the ground but the noble Lords have made the point about the period after five years and having a look at what makes sense.

I also commend the points that the noble Lords made about the part that officials have played in developing the IP regime and these regulations in particular. Perhaps unsurprisingly, my first meeting after today’s business is with the CEO of the IPO, and I shall be visiting it soon, so I will have the opportunity to pass on your Lordships’ kind words.

I have given due regard to the Secondary Legislation Scrutiny Committee’s decision and comments. We have had a good debate. The Government believe that these regulations are a fair and reasonable reform and I commend them to the Committee.

Motion agreed.

Paternity and Adoption Leave (Amendment) Regulations 2014

Monday 21st July 2014 Grand Committee

Motion to Consider

16:24

Moved by

[Baroness Neville-Rolfe]

That the Grand Committee do consider the Paternity and Adoption Leave (Amendment) Regulations 2014.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments

[Baroness Neville-Rolfe (Con)]

My Lords, these regulations are part of a package of statutory instruments that implement the modern workplace agenda that this Government are committed to delivering.

Since women were given maternity leave and pay rights in the 1970s, the employment landscape has changed dramatically. The legislative framework has not kept pace with the way in which employees juggle their home and work lives and how businesses respond to the challenges that this places on the management of their workforces. I speak as a businesswoman and a mother of four boys who has always worked, with spells of maternity leave.

The Children and Families Act 2014 has changed the framework. Noble Lords might like to be reminded that, through the Act, we introduced measures that allow us to give eligible working couples a new statutory entitlement to shared parental leave and pay, give all employees the right to request flexible working and allow a wider group of adopters and prospective parents to access adoption leave and pay. The Children and Families Act also gives employees the right to attend important events in their child’s life. This includes the right of a father, a mother’s partner and intended parents in surrogacy arrangements to unpaid time off work to accompany their partner or the mother of their child to up to two antenatal appointments. It also includes the right of an adopter to time off to attend a number of adoption appointments relating to the forthcoming placement of their child.

As a whole, the package marks a dramatic reform and a real step forward in employment law. It makes a reality of the Government’s commitment to creating a framework of family-related leave which reflects and supports the needs of working parents in the 21st century. It allows, for the very first time, mothers and adopters to share their leave and pay with the other parent. This will allow them, together, to manage their family responsibilities in a flexible way. As such, the introduction of shared parental leave and pay is truly ground-breaking. It is a framework which is also balanced with the needs of employers to be able to manage their businesses and workforces effectively. Evidence shows that both parents playing an active role in the care and development of their children from the earliest stages has strong positive benefits, both for the individuals involved and for society as a whole. That is why the changes that the Government are introducing, which I have just outlined, are so important.

Today, we are debating the draft Paternity and Adoption Leave (Amendment) Regulations 2014. There is nothing novel or unexpected in what I am seeking your Lordships’ approval for today. The provisions are in line with statements made in the course of the debates during the passage of the Act, or have been discussed and consulted on extensively with a wide range of stakeholders. Furthermore, they passed through the JCSI and the Lords Secondary Legislation Scrutiny Committee without comment.

The Paternity and Adoption Leave (Amendment) Regulations provide protections from detriment and unfair dismissal for individuals seeking to exercise rights granted to them in the Children and Families Act 2014: first, the right of fathers, mothers’ partners or prospective parents in surrogacy arrangements to unpaid time off to attend up to two antenatal appointments from 1 October this year; and, secondly, the right from April 2015 for adopters to take paid and/or unpaid time off to attend adoption appointments in advance of the child joining the family. The regulations will also remove the 26-week qualification period for entitlement to adoption leave. This will make it a day-one right for all employees from 5 April next year. This provides parity with the eligibility requirements for maternity leave, which is already a day-one right.

Through these regulations, we are ensuring that the person who exercises the right to take paid time off to attend adoption appointments cannot take paternity leave. Instead, that person can take adoption leave. So, in the case of a joint adoption, the couple must decide ahead of attending any adoption appointment which of them will take adoption leave and which of them will take paternity leave.

The amendments to these regulations also ensure that a parent cannot take paternity leave in relation to a child for whom he—or she, in the case of a same-sex partner—has already taken shared parental leave. An employer will therefore know that when an individual takes shared parental leave, they will not be chopping and changing between paternity leave and shared parental leave. Paternity leave can never follow a period of shared parental leave. This is another measure aimed at making the forthcoming introduction of shared parental leave easier for employers to manage and understand.

The regulations also set out the position on the right to return to work after periods of family-related leave. We know that this is an issue which employers in particular are keen to understand. Our approach rolls forward the existing principle in other areas of family-related leave, while taking account of the fact that shared parental leave can be taken in separate, discontinuous blocks of time.

To conclude, these regulations rightly enable more parents and prospective parents to play an active role in the care and development of their child from the very earliest stage. They also pave the way for the smooth introduction of the new system of shared parental leave and pay, on which we laid the draft regulations in both Houses today. The House will have the opportunity to debate the regulations on shared parental leave and pay in the autumn. I commend the regulations to the committee.

16:30

[Lord Young of Norwood Green (Lab)]

My Lords, I, too, welcome the noble Baroness to her new role. I was impressed to hear that she is a mother of four boys—the gender balance is a bit doubtful, but you cannot have everything. I was also reflecting on the fact that over a long period I have been the father of five children. The paternity leave throughout that was unpaid and, when I reflect, I suppose it was a bit short as well. As the noble Baroness rightly said, times have changed. The culture and the attitude of fathers—indeed, both parents—towards their role in parenthood has changed fundamentally.

We welcome and agree with the proposal. It is worth reflecting on the fact that we spend the vast majority of our lives at work. Having the flexibility to be able to look after family, to adopt or to foster is something that we should be encouraging. It is the role of government, whether EU government or at local level, to try to find a structure that works best for such flexibility.

Previously, the focus of legislation has rightly been on mothers. That is absolutely right, but it is nice to see, with the Government’s introduction of shared parental leave, there is a greater emphasis on change. However, there is still an issue of cultural change, which I should like to discuss for a few moments. We have done some research into the impact of some of the changes beyond what it says in the impact assessment. Although we welcome the extension of shared parental leave, there is concern that, in reality, the policy does not make a lot of difference to families. The Government’s impact assessment shows that as few as 2% to 8% of eligible fathers will take part in shared parental leave. Our analysis of additional paternity leave—the precursor to shared parental leave—shows that just 1% of eligible fathers have taken that up. That is fewer than 4,000 fathers across the whole country since 2011.

It is worth looking at how transformative the measure can be. Although we welcome the legislation, especially the day-one rights, and the statutory instrument, there needs to be a cultural shift in respect of how more fathers can be involved in using shared parental leave and how to make it so that they do not feel financially disadvantaged.

If we take the financial disadvantage out of the equation, a significant cultural shift is still required. What plans do the Minister and the Government have to change that culture? It could, for example, include providing information to fathers, mothers, adopters and employers. We very much welcome the instrument, given that it addresses paternity leave issues and equalises the adoption qualification period. With those questions, we commend the instrument.

[Baroness Neville-Rolfe]

My Lords, I thank the noble Lord for his support and valuable comments. He may be glad to know that I have two granddaughters, so we have managed at last to add a little equal opportunity to the family.

The main concern that the noble Lord raised was that men would not take shared parental leave, not necessarily only because of not being able to afford it but because of culture. The introduction of the new provision offers choice and flexibility to working couples in a way that ought to help bring about a culture change. There will be some early adopters, and they will be copied, so the advantage of the new regulation will be taken up. We recognise that for some couples it will not make financial sense for the father to take off extended time on shared parental leave, but it may well be hugely advantageous for fathers to take a number of short spells of leave—which, of course, we are now making provision for.

It is also worth noting that although men are the main breadwinners in many households, in 28% of households where both the man and the woman work, women are now the higher earner. I appreciated the points that the noble Lord made about the change of culture and his ideas for the dissemination of information, and I will give thought to those as we implement this very important package of measures.

To conclude, the Paternity and Adoption Leave (Amendment) Regulations make important changes to the existing paternity and adoption leave framework, which will pave the way for the smooth implementation of the new system of shared parental leave and pay, and have a significant and positive impact on adopters. I am very glad to be the Minister who is today commending the statutory instrument to the Committee.

Motion agreed.

Community Interest Company (Amendment) Regulations 2014

Monday 21st July 2014 Grand Committee

Motion to Consider

16:36

Moved by

[Baroness Neville-Rolfe]

That the Grand Committee do consider the Community Interest Company (Amendment) Regulations 2014.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments

[Baroness Neville-Rolfe (Con)]

My Lords, the Government believe that it is important to encourage the growth of what, for brevity, I will call CICs limited by shares. We want to attract social entrepreneurs who seek a vehicle for social enterprise but also require some return on their investment. CICs limited by shares are the way to do that and are one of this country’s most successful forms of social enterprise. The existing regulations contain unnecessary restrictions that limit dividend payment. At the moment, a director with a single share with a par value of £1 will receive a maximum of only 20p dividend payment, regardless of the level of profit made, or if the actual value of the shares has risen to £100. It is our intention, with these amendment regulations, to make it easier for investors to share in the success of a CIC.

The purpose of these regulations is to remove the share dividend cap—a statutory restriction on the amount of dividend that the directors of a community interest company may pay investors. CICs were introduced by statute in 2005, creating a new type of company for social purpose. The CIC is increasingly the model of choice for many social entrepreneurs, and since the legislation came into force, more than 9,300 social entrepreneurs or social enterprises have chosen to register as community interest companies, and numbers continue to grow year on year.

The CIC is a unique form of company. A CIC must be set up to benefit a particular community, and cannot be used solely to make a profit. CICs carry out a wide range of activities, but they take in sectors such as health and social care, including NHS spin-out social enterprises, environmental business support, addressing cultural needs and running community cafes and centres. At the core of every CIC is its community benefit.

One of the key characteristics of a CIC is its asset lock. The asset lock applies to all CIC models and requires the company to use its assets to achieve its objectives in the interests of the community. Two forms of CIC predominate: there is the company limited by guarantee, where there is no private gain; and the company limited by shares, where there are limits on the amount of profit that can be distributed in share dividends to shareholders. These limits are one aspect of the asset lock.

In 2010, changes were made to the legislation to simplify the application of the asset lock with regard to share dividend caps. These measures simplified the process of applying and managing the caps, but in 2012 a review of these changes by the CIC Association, an independent support organisation for CICs, together with the regulator of community interest companies, revealed that further action was needed, as the caps remained a barrier to investment and to taking up the share model.

There are currently two separate caps on the amount of dividend that the directors of the CIC can declare. The first limit is the share dividend cap, which prevents directors from declaring more than 20% of the paid-up value of a share. The second limit is the aggregate dividend cap, which prevents directors from declaring more than 35% of the profits of a CIC as dividends in any financial year.

These regulations today remove the share dividend cap completely, while retaining the aggregate share dividend cap. This change will make it simpler for CICs to declare dividend, encouraging investment in, and ultimately the growth of, CICs.

The changes we are making today have been fully consulted on and are supported. Last year a consultation was carried out jointly by the CIC regulator with HM Treasury, which was consulting on tax relief for social investment, where CICs are one of the specified models for investment. The joint consultation was a good example of collaboration between departments, and in both cases resulted in introducing new measures that would benefit CICs. The consultation showed that CICs found the so-called double cap confusing, difficult to work with and, frankly, unnecessary.

There is also evidence that the existence of the double cap put off founders of CICs from using a share model at all, instead creating a company limited by guarantee. This choice naturally inhibits the ability of a CIC to seek investment and to bring in share capital.

I hope to reassure noble Lords that the asset lock, which is a key feature of the CIC model, will not be compromised by these measures for the following reasons. First, CICs will still be able to distribute only 35% of their profits in share dividends, and the peg to the paid-up value of the shares will be retained in relation to redeeming or buying back shares by the company.

Secondly, the cap on performance-related interest will remain, although the regulator intends to increase this from 10% to 20% to encourage investment further, which can be done under her own powers.

Thirdly, CICs will continue to be required to report annually to the regulator on their activities and on the distribution of dividends.

The measure in these regulations, together with the changes to the performance interest rate being made by the CIC regulator, will, we hope, encourage growth in CICs. This is particularly desirable in light of the announcement by HM Treasury to introduce social investment tax relief in December 2013. These changes combined are expected to have a very positive impact on existing CICs, as well as encouraging social entrepreneurs to use this company form in new ventures.

These regulations will make it simpler for CICs to operate, and make them more accessible and attractive to investors while retaining the important elements of the asset lock and serving the needs of the community for which the CIC was established. I commend them to the committee.

[Lord Hodgson of Astley Abbotts (Con)]

I begin by adding my congratulations to my noble friend on her new role, and congratulate her on having so far descended the crest unscathed. Her officials certainly gave her—or parliamentary procedure gave her—a good mixture to begin with, starting off with IP, proceeding to employment regulations and now to company law.

I declare my long interests in the charitable world. As my noble friend Lord Wallace of Saltaire knows, I conducted the Government’s review of the Charities Act, and I have an interest in how CICs and the charitable sector work together. I do not oppose these regulations, but I would like just to draw attention to a potential danger. Then I have one specific question to which I would appreciate clarity from my noble friend.

We have a broad spectrum of organisations. We start at one end with limited companies, commercial companies, with which we are all familiar, and at the other end we have charities, which are severely and properly legally restricted. Everything has to be done by them for the public benefit. To fail to do so is breaking the law and opens the trustees to the full force of that law. Between those two extremes—limited companies at one end and charities at the other—there is an increasing number of corporate forms, one of which is the CIC. There are also community benefit societies—bencoms, as they are called—we had better have some new regulations for them; industrial provident societies; social enterprises that are not CICs; companies limited by guarantee that are not CICs; mutuals; charitable incorporated organisations; and CICs themselves.

16:45

I see the value in diversity. One does not want to be a one-club author. But we need to ensure that the public are clear about what all these organisations do, what their powers are and what they are permitted to do. Each of those organisations started out with a very clear differentiation in the law but sometimes those differences are being whittled away, on the grounds of utility, practicality and efficiency. This is one small whittling away. Does it really matter? Probably not but my concern is that we have this basic charity movement—165,000 registered charities doing wonderful things for our society and probably double that number if you take the unregistered ones—which is highly and hugely respected by the public.

The danger is that we create organisation forms that appear to the public to be charitable but are not entirely so. If there are scandals and difficulties, that may serve to undermine the trust that the public have in charities pure and simple, which remain the mainstream of our voluntary and social endeavour. Charities are already on the defensive due to, for example, the Cup Trust and the accusations of tax avoidance; the issue of executive salaries—what should the major charities pay their chief executives; and of course the even more vexed question of charitable aid going to extremist causes overseas.

I accept what my noble friend says, that the asset lock is critical, and certainly if she were to say that the asset lock will be changed, that would be a red signal as opposed to a yellow one, which I think we have this afternoon.

[The Deputy Chairman of Committees]

My Lords, I am sorry to interrupt the noble Lord but we have a Division. We shall resume in 10 minutes.

16:47

Sitting suspended for a Division in the House.

16:57

[The Deputy Chairman of Committees (Lord Geddes) (Con)]

The noble Lord, Lord Hodgson, was in full flow. Perhaps he would like to resume.

[Lord Hodgson of Astley Abbotts]

I thank the Lord Deputy Chairman. I was just concluding my first general concern about the regulations, which is that we are in danger of creating such a multiplicity of corporate forms that the public become concerned. As such, if we have scandal or difficulties in these intermediate categories, that may undermine the public trust in proper, full charities which are already under some pressure because of other issues such as executive salaries, aid to extremists and so on. I was saying to my noble friend that I very much hope that she will be robust in the maintenance of the asset lock, otherwise that would open up a significant whittling away. I hope that as the Government think about reforms in this area they will bear in mind the need to keep as clear a differentiation as possible and to explain it to the public. That is my general concern.

On my specific question, I turn to a point that my noble friend raised in her opening remarks about the change being made by the regulator to raise the performance rate of interest rate payable from 10% to 20%, which is in paragraph 8.3 of the Explanatory Memorandum. I understand from my noble friend’s remarks that this can be done by the regulator off her own bat. I seek an explanation of what this actually means. I understand what it says on the tin, but does that mean that it is inside the tin? If I understand it, it means that if I were to lend some money to a CIC and was able to arrange with the management that some performance-related criteria could be set—and I might seek that they be set in a way that was reasonably favourable to me—I could then get a 20% performance-related interest rate payable.

I may be completely wrong, in which case I am delighted to withdraw that view, but if I am right that does not seem to be a very happy state of affairs. A 20% rate of interest is high. The regulator should have control over the performance criteria that enable such a rate to be set, but it seems unlikely that that could happen without a high degree of bureaucracy. As the Minister knows, 20% in today’s markets is an extraordinarily high rate of interest, when the base rate is as it is. Indeed, it is nearly the APR that you are charged on overdue bounces on your credit card—about 22% or 23%—which everyone is saying is close to usury and that it is disgraceful that people should be charged such a rate.

17:00

It is strange to set this performance-related percentage in a vacuum. It would be much better if it were related to the Bank of England’s base rate, as then it would go up and down depending on interest rates. There have been times when rates have reached a level when a 20% performance-related rate would have been perfectly proper, but at current levels that is not the case. I understand that this is pretty specialised and specific. My noble friend may wish to write to Members of the Committee about it, but her officials may have managed to scribble a note that has made it absolutely clear that the whole thing is not as I thought it. If that is the case, I would be happy to withdraw my concern, which is that there is an opportunity here for malfeasance that could undermine general confidence in the sector.

[Lord Young of Norwood Green (Lab)]

My Lords, I thank the Minister for her introduction and the noble Lord, Lord Hodgson of Astley Abbotts, for his seminar on the variety of different organisations, which certainly educated me. He talked about destroying trust, but even now you regularly get bits of paper through your door, sometimes accompanied by a bag, from organisations purporting to be collecting clothes for charity. It is only when you read more carefully that you realise that there is not a registered charitable number associated with it. Even now the public have to be careful when they are contributing either in cash or kind.

We are not opposed to these changes, but we have some questions, to which I trust the noble Baroness will be able to respond. One justification for this move is to increase the number of CIC start-ups, but does the Minister have any estimate of the increase that will result? What merits are there in the Government’s proposal to remove the individual share cap while retaining the aggregate cap, versus the CIC Association’s proposal of linking the individual dividend cap to profits rather than paid-up share capital? Have I made that clear, or do I need to repeat it? I am looking at those behind you. What merits are there in the Government’s proposal to remove the individual share cap while retaining the aggregate cap, versus the CIC Association’s proposal to link the individual dividend cap to profits rather than paid-up share capital? That is your starter for five.

The Government aim to create more of a market in CIC shares through the removal of the dividend cap. However, the CIC regulator has said that that alone is not enough, and that it must be accompanied by clearer guidance and a campaign to educate stakeholders. What is being done to fulfil that objective? I am glad that the noble Lord, Lord Hodgson, raised the question of the performance-related interest rate, because I confess that I did not quite understand what that meant in practice.

On a final point, as a matter of interest, although the Minister may not have the figures: have there been any situations where a CIC company has failed—due to misconduct, shall we say—in any way? What has the track record of those companies been, now that we have 9,300 of them?

[Baroness Neville-Rolfe]

My Lords, I thank noble Lords for their valuable comments during this debate, and for their kind words on my first day on the Front Bench. These regulations introduce a welcome simplification and are important in enabling and encouraging the growth of CICs and making the model accessible to more social entrepreneurs. In response to the question asked by the noble Lord, Lord Young, we expect there to be an increase of between 10% to 20% within the first two years.

With their community benefit, CICs are an important part of the social enterprise landscape which have widespread support, and these regulations will ensure that CICs remain so. The measure will encourage a wider market for investment in a key and growing model of social enterprise that is accountable and transparent in its operation. I was glad that my noble friend Lord Hodgson of Astley Abbotts joined our debate today and was able to make a valuable contribution given his great expertise in the charitable area.

I will make a number of points. The steps we are taking are cautious, and indeed, as the noble Lord acknowledged, they are intended to preserve the vital asset lock. The change to the dividend cap has been 10 years in the making. As I said in my opening speech, that has been thoroughly consulted on and is supported by the CIC community. On the point on performance-related interest, this recognises the balance between risk and reward. The 20% is a maximum and is based on profit. At present, very few CICs pay performance-related interest at all. However, I will look at the points that he made and will perhaps write to him in the light of that.

I agree with both noble Lords that the public should be properly communicated with on the availability of different types of social enterprise entities. We need to explain the options clearly to citizens—and online options in that area can be very helpful and important. That will also be important in the debate we had previously on the new family-friendly policies. We will certainly consider how we can best make sure that those new arrangements and the whole range of social enterprise entity provisions are made publicly available.

The noble Lord, Lord Young, asked about the failure of CICs. The regulator has had a number of complaints about CICs, but that is a very small proportion in relation to the numbers on the register. All are investigated, and I will write to noble Lords with the exact numbers. On the campaign to educate stakeholders, I understand that not only does the regulator place priority on this matter, but it also works closely with umbrella organisations such as Social Enterprise UK, Social Enterprise Mark and the CIC Association to promote CICs. In my experience, that is often a very good way of ensuring wider dissemination of information in the market. I am grateful for the points raised in this debate and I commend these regulations to the House.

[Lord Young of Norwood Green]

Before the noble Baroness sits down, did she cover the rather complex question I asked in her response?

[Baroness Neville-Rolfe]

Perhaps this is the question that the noble Lord kindly repeated for me, twice. I fear that I still found—

[Lord Hodgson of Astley Abbotts]

Perhaps I may be of assistance to the Minister. There is a limit of 35% on the amount of total profits that can be distributed; therefore, how they are distributed among the shares does not matter. Presently, the individual share dividend cap is linked to par value. The par value of shares can vary enormously—you can have a pound par or a penny par. Therefore, 10% of that is an irrelevant figure. What is important is that they should not be able to pay out more than 35%. How it is paid out among the shares does not matter. The important thing is to make sure that not all the profits will be paid out. If the officials have not got that wrong, I will shut up.

[Baroness Neville-Rolfe]

I am grateful to my noble friend Lord Hodgson for coming to my aid. I will, with the officials, take a careful look at Hansard and perhaps indulge in the art of letter writing to clarify this important point after the debate.

Motion agreed.

Financial Services and Markets Act 2000 (Excluded Activities and Prohibitions) Order 2014

Monday 21st July 2014 Grand Committee

Motion to Consider

17:12

Moved by

[Lord Newby]

That the Grand Committee do consider the Financial Services and Markets Act 2000 (Excluded Activities and Prohibitions) Order 2014

Relevant document: 4th Report from the Joint Committee on Statutory Instruments

[Lord Newby (LD)]

My Lords, it is a great pleasure to open this debate on these two ring-fencing instruments because today marks the latest milestone in the long process of legislation to implement the ring-fence between retail and investment banking. These two orders define what must be inside the ring-fence and what must be outside. They are the final stage of legislation on the location of the ring-fence.

Ring-fencing will protect retail bank customers against the risks of investment banking. It will help to reduce the risk that a future Government are obliged to rescue a failing bank with taxpayers’ money. Ring-fencing will achieve this; first, by insulating vital retail deposit and payments services against shocks from elsewhere in the global financial system; and, secondly, it will make retail banks that provide these vital services simpler and more resolvable. This will mean that, if a bank gets into financial difficulties, the authorities will be better able to manage its failure in an orderly way, keeping those essential retail services running but without having to rescue the bank with public funds. Ring-fencing thus aims to get the taxpayer off the hook by making retail banks both less likely to fail and more safe to fail. The ICB recommended that all the legislation needed to implement the ring-fence be in place by the end of this Parliament. The Government have committed to that timetable and we are well on track to meeting our commitment.

Last year, we took the Financial Services (Banking Reform) Act 2013 through Parliament. It established in law the principles of ring-fencing, as well as implementing the recommendations of the ICB on bail-in and depositor preference. The Act also brought in wider reforms, including those proposed by the Parliamentary Commission on Banking Standards.

The Act created the concepts of a “ring-fenced body”; “core activities”, those that must be inside the ring-fence; and “excluded activities”, those that must be outside the ring-fence. It provided that the precise definitions of “core” and “excluded” activities be set in secondary legislation. This is the purpose of the two orders before us today. The ring-fenced bodies and core activities order defines the scope of the ring-fence and the kinds of deposit that must be in the ring-fence. The excluded activities and prohibitions order defines the forms of trading in securities and commodities that must be outside the ring-fence, and imposes specific prohibitions on ring-fenced banks.

17:15

The ring-fenced bodies and core activities order sets out which bodies will be subject to ring-fencing. The 2013 Act provides that any UK institution which accepts deposits, other than a building society, will be subject to ring-fencing, unless exempted by order. The order creates exemptions in two cases. First, it provides that only banks above a certain size will be required to be ring-fenced. The Government believe that the benefits of ring-fencing smaller banks are marginal and that the smaller banks would be likely to incur disproportionately high costs from having to ring-fence, which would reduce their competiveness. The order therefore creates an exemption, excluding banking groups with less than £25 billion of core deposits from the definition of “ring-fenced body”.

Secondly, the order exempts classes of institutions, such as insurers and credit unions, which are captured by the definition of “ring-fenced body” in the Act because they accept deposits. Ring-fencing is a policy developed to deal with the specific characteristics of banks and building societies. It was not designed as a solution to the regulatory challenges of other financial services firms. Therefore it is correct that they are exempted by this order. The order also provides that banks that cross the threshold due to a merger or acquisition, or resolution action taken by the Bank of England, will have a fixed four-year grace period before ring-fencing is applied to them.

The order also defines in detail the circumstances in which deposits can be held outside the ring-fence. The ICB recommended that large organisations and high net worth individuals should be able to deposit outside the ring-fence if they make an active choice to do so. This was because these depositors are sufficiently financially sophisticated to tolerate an interruption in access to a single bank, typically because they have multiple banking relationships. These sophisticated depositors therefore do not need the protection that is being mandated inside the ring-fence. They may, of course, choose to deposit in a ring-fenced bank if they wish.

The Government accepted this recommendation, and the order therefore provides that organisations above the Companies Act threshold for small companies—that is, organisations with turnover greater than £6.5 million, more than 50 employees, or an annual balance sheet total of more than £3.26 million— and individuals with greater than £250,000 in financial assets, can choose, as a one-off, to certify their deposits as non-core, allowing them to deposit with a non-ring-fenced bank.

The excluded activities and prohibitions order defines in detail the things that ring-fenced banks may not do. Under the Financial Services (Banking Reform) Act 2013, the regulated activity of,

“dealing in investments as principal”,

is an excluded activity. This means that ring-fenced banks may not engage in trading in financial investments on their own books. The Act, however, gives the Treasury power to make exceptions from this ban. The order before us creates exceptions, most importantly for ring-fenced banks’ own risk management and funding, for transactions with central banks, and for the provision of simple risk-management services to customers.

The first exception is intended to permit ring-fenced banks prudently to manage their own risks; for example, the interest-rate risk that arises from their lending activities. The ICB recommended that ring-fenced banks should be permitted to use derivatives or similar instruments to hedge these risks. The exception in the order therefore permits dealing in investments, including derivatives, provided that the sole or main purpose of the transactions is to hedge the risks of the ring-fenced bank or its subsidiaries. Similarly, the ICB recommended that ring-fenced banks should be allowed to trade in liquid assets, such as UK gilts, to manage their liquidity: the order therefore permits ring-fenced banks to do this. The second exception permits ring-fenced banks to trade with central banks. This will allow ring-fenced banks to access central bank liquidity in times of stress.

Thirdly, the order permits ring-fenced banks to sell a narrow range of simple risk-management products to their customers. A great many businesses, including small businesses, use simple swaps, futures and options to limit their exposures to interest rates, commodity prices and exchange rates; for example, by fixing the interest rates they will pay on their loans or locking in the exchange rate for trade transactions. This gives businesses certainty over their costs and revenues, allowing them the confidence to invest, grow and create new jobs. The exception in the order permits ring-fenced banks to sell the simplest and most standard products used by businesses for these purposes. This will allow ring-fenced banks to meet all the needs of the vast majority of UK businesses, including small businesses, which typically have only a single bank, and might find it costly and difficult to deal with an investment bank for risk-management services. Complex derivatives will not be permitted inside the ring-fence. These are typically used only by larger and more sophisticated corporate customers, who are often already multi-banked, so would have little trouble in sourcing derivatives from a non-ring-fenced bank.

Finally, as well as defining what trading in financial securities must be outside the ring-fence, the order creates a further excluded activity: dealing in commodities. Ring-fenced banks will be banned from speculating in physical commodities, such as precious metals or oil, as well as trading in financial investments. As well as defining the scope of the ban on dealing in investments, the order imposes a series of specific prohibitions on ring-fenced banks. First, ring-fenced banks are prohibited from having exposures to certain financial institutions. The ICB recommended this prohibition, which is a key part of the insulation of the ring-fence. It protects ring-fenced banks against financial contagion from elsewhere in the financial system. In line with the ICB’s recommendation, the order prohibits ring-fenced banks from having exposures to non-ring-fenced banks, most investment firms, globally systemic insurance firms and investment funds. It permits exposures to other ring-fenced banks, building societies, credit unions, recognised clearing houses and central counterparties, investment firms which only offer advice, and banks subject to the same restrictions as ring-fenced banks, such as small retail banks.

In connection with this, I should tell the Committee that there is a small typo in Article 2(3)(g) of this order. The words “is not permitted” in the second line of that sub-paragraph should come at the end of the first line, as I am sure all noble Lords will have spotted. This will be corrected in the order before it is made.

Exposures to non-systemic insurers are also permitted, as these firms, which engage only in traditional insurance business, do not pose contagion risks comparable to those from non-ring-fenced banks or investment banks. The ICB recommended some exceptions to the prohibition on relevant financial institutions. This order creates those exceptions. First, ring-fenced banks may have financial institution exposures for the purpose of managing their own risks. Secondly, ring-fenced banks may provide payments services to other financial institutions; for example, acting as clearing banks for small banks. The exposures involved are permitted, subject to controls imposed by the PRA to address any prudential risks. To ensure that ring-fenced banks are themselves always able to access the payments systems whose use is critical to their business, the order separately imposes restrictions on the extent to which they may use the services provided by interbank payment systems except as direct members the payments systems.

The third exception permits ring-fenced banks to offer trade finance services to their customers. The ICB recommended that ring-fenced banks be permitted to offer trade finance services to customers. Such transactions often involve exposures to other financial institutions on behalf of their customers. The order also permits ring-fenced banks to have exposures to their own covered bond or securitisation vehicles and to engage in conduit lending and repo transactions. This is necessary to ensure that ring-fenced banks are not excluded from an important source of funding. Provision is also made to ensure that exposures to financial institutions which arise in the course of ordinary banking business, such as allowing retail customers to draw cash from the ATMs of foreign banks, do not breach the prohibition.

The final prohibition that the order imposes is on ring-fenced banks establishing branches or subsidiaries outside the EEA. The ICB recommended that ring-fenced banks should not offer services outside the EEA, to protect them against risks arising from elsewhere in the global financial system. Non-EEA branches or subsidiaries, which would be outside the recently agreed common European resolution framework, could also compromise the resolution of a ring-fenced bank in the event of failure. The order, therefore, prevents ring-fenced banks having such branches or subsidiaries, other than service companies that undertake no regulated financial activities.

These orders thus complete the process of defining the location of the ring-fence. It is central to the Government’s radical programme of financial reform to ensure that there is no repeat of the crisis and bailouts of 2007-09. Making these orders is an important milestone towards meeting our commitment to have the ring-fence legislated in this Parliament. It is a big step towards finishing the job of financial reform, to give Britain a world-beating financial sector, while protecting consumers and taxpayers. I commend the orders to the Committee.

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for his presentation of these orders. The Opposition will not object to them. Indeed, in some ways they are unsurprising to the extent to which I sat through them with colleagues, facing the noble Lord, Lord Newby, through many hours of the parent Bills. As far as I can tell, most of the features appearing in these orders have already been mentioned in debates, notes and so on. They seem to do the job. I have just a couple of direct questions about the orders, and one or two wider questions that I hope the Minister will be able to respond to.

It is very interesting in terms of political process the extent to which we depend on the supporting material. It is conceivable to put in the 30-odd hours that are necessary to work from the Act through to the orders, through to whether the Explanatory Memorandum properly explains the legislation. I trust the Minister.

[Noble Lords]

Oh!

[Lord Tunnicliffe]

Well, I trust the Minister in this case then, on the Explanatory Memorandum. Let us not get carried away, although I do have a small point even on that. I am saying essentially that the Minister’s presentation and the Explanatory Memorandum, which I have studied in some depth, and the orders in as much as I was able to relate them to the Explanatory Memorandum, leave me with only a couple of direct questions.

First, the Minister spoke about the firms that are in the core. That was unexceptionable and exactly how the commission was talking. All the stuff I remember from the Explanatory Memorandum seems to fit with that. I found no surprises and the Minister has not pointed out any surprises to me. Therefore, my attention has concentrated on the Financial Services and Markets Act 2000 (Excluded Activities and Prohibitions) Order 2014.

Looking at the Explanatory Memorandum for that order, as a result of the Minister’s speech, I first lighted on paragraph 7.4, which states:

“This Order provides that dealing in commodities (e.g. precious metals, oil, agricultural products) is an excluded activity”.

The Explanatory Memorandum refers to “agricultural products”, and I am sure that if I went into it in enough depth, I could find whether or not agricultural products are excluded. The Explanatory Memorandum says that they are, but the Minister’s speech did not. I ask that as a small technical question.

It is interesting that in the rest of the order virtually everything seems to be fairly black and white. This is in; this is not. This is excluded; this is not excluded. Paragraph 7.5 of the Explanatory Memorandum caught my eye, where it lists the key things that the order does. It states:

“Third, the Order creates an exception to permit ring-fenced bodies to sell a narrow range of simple derivatives to their customers”.

The Minister gave a perfectly satisfactory explanation of why that was useful. What was less clear to me—I have to admit that it may be deep in the order—is how one defines “simple”. Listening to the Minister, “simple” seems to be defined as small and what small businesses want, while “complex” is big and what complex businesses want. That did not seem to me a fundamentally correct definition of “simple”; it should have more depth in it if it is to be a serious limitation on what is inside and outside the ring-fence. I would value further explanation of what “simple” means.

17:30

I was also interested in how policy and detail developed. As we know, there is subtle detail when orders are created to bring an Act into force. I noticed with some disappointment the rather short section in the Explanatory Memorandum on consultation. It states:

“In the light of consultation responses, the Government made a number of technical changes”.

I would have valued a little more information on how the consultation and the changes came about. Of course, I could have taken up the invitation in paragraph 8.2 to go to the link there given. I fear that, if I did, I would probably find myself facing a 200-page document and having to admit defeat by sheer volume. If the Minister could shed a little more light on the consultation, I would value it.

My mind then started to go away from where we had been together with the Bill to the reality of this becoming a ring-fence. I started to wonder who does what, which is when my thinking came back to this idea of “simple”. How does whoever is responsible for this—I assume that it is the PRA—ensure that the instruments inside the ring-fence are simple and that all other instruments are outside? Does it review every instrument that a bank is going to trade in, or does the bank have to self-certify with the PRA reviewing it afterwards? By what process does the detail in the orders come about? We can all pass rules, but, let us be honest, with this industry, a policeman—for want of a better word—has to be there making sure that the rules are obeyed and implemented. I am interested in who does what and how they do it.

Finally, we heard a number of lovely little phrases throughout the Minister’s speech referring to timetables. He talked about being in the final stages, and said that the instruments would be in place by the general election and that the Government were close to finishing the job. Can the Minister flesh that out a bit? Finishing the job means a ring-fence being in place that is properly policed. When we can we expect that? I seem to remember a dreadful date like 2019 being bandied about. If all the stuff is in place by 2015, why will it take that amount of time for it to be in place, giving the protection for the citizen that I know both the Minister and I want? Certainly, I want to see it in place as quickly as possible.

[Lord Newby]

My Lords, I am grateful to the noble Lord, Lord Tunnicliffe, for those questions, because they enable me to clear up, I hope, the points that he raised. He asked whether agricultural products were included in the definition of “commodity”. The answer is that, just like a metal, agricultural products —such as pork belly, or whatever, futures—are an excluded entity, along with all other commodities.

The noble Lord asked me about how to define “simple”. I am slightly inclined to say that of course it is not easy to define “simple” simply. However, the simple instruments that ring-fenced banks will be permitted to sell to their customers are defined in articles 10 and 11 of the excluded activities and prohibitions order, so there is quite a long list there. The definition or underlying concept of “simple”, is that we are primarily talking about derivatives that do not complicate the resolution of a failing bank. Why do we try to keep to simple products? We want to make it possible, relatively easily, to resolve a failing bank. Therefore simple derivatives are primarily ones that are straightforward to value; that is what makes them simple, or relatively simple.

[Lord Tunnicliffe]

Can the noble Lord repeat what he just said? I think he said something quite profound, although he said it quickly: that, by definition, they must be instruments that would not complicate the resolution.

[Lord Newby]

Yes; they are derivatives that would not complicate the resolution of a failing bank. They would not complicate it because they are relatively straightforward to value. As the noble Lord can imagine, some derivatives are extremely difficult to value. If I can just slightly elaborate on that, the excluded activities and prohibitions order limits ring-fenced banks to selling forwards and futures, plus a small range of options. They may only sell derivatives to hedge against three types of common business risk, namely currency, interest rate and commodity risk. Those are the most common business risks in which the market for derivatives is most liquid and, because it is liquid in those areas, it is easier to value them. To ensure that derivatives do not have any of the features that make them hard to value, the order requires that options contracts entered into must specify the amounts that may be bought or sold under the option, be at a specified price, and exercisable on a single specified day; or, in the case of interest caps or floors, interest rates must be based on a specified principle sum for a specified period.

The order also requires that ring-fenced banks may only sell derivatives that can be valued on the basis of observable market data or of a type traded on exchanges, and whose fair values are based on level 1 or 2 inputs under international financial reporting standards. Such instruments are more liquid and could be more easily valued in resolution. Article 12 of the order creates those safeguards, as well as placing caps on the net market risks of the derivatives portfolio, the gross size of the derivatives portfolio and the proportion of the portfolio that can be made up of simple options. I hope that that has gone some way to satisfy the noble Lord on that front.

The noble Lord asked about consultation. Consultation was issued in July last year, and the summary of responses was released in December of last year. We also consulted widely with stakeholders, including the Association of Corporate Treasurers, the CBI, non-financial companies, law firms and, of course, the banking industry itself. As a result of that consultation, we have made some changes to the legislation that are largely technical, but which will ensure that ring-fencing is fully compatible with the needs of UK businesses. For example, we made some small changes to the definition of “simple derivatives”, made it permissible for ring-fenced banks to have exposures to non-systemic insurers, made a series of technical changes to ensure that exemptions for payments and trade finance are operable, and removed the caps on payments and trade finance exposures. We also prohibited ring-fencing banks from having branches in the Crown dependencies. Therefore that is relatively technical stuff, but it has improved the legislation and has been a good exercise.

The noble Lord asked how the supervisors would supervise. The PRA is the principal supervisory body. It is in day-to-day contact with the banks. If it feels that it is not getting adequate information from the banks, it has extensive powers to require further information from them if it has any specific concerns. If a generic problem were to arise, it would obviously be in a position to discuss with the Treasury whether any further changes were needed in terms of the secondary legislation or in any other respect.

As to the question of timing, as the noble Lord said, the end point for the final implementation of the ring-fence is 2019. The justification for that is so that we can get all the secondary legislation done by the end of this year, which we expect to be able to do. The PRA then has to produce very detailed rules to make sure that the system is clear and works in the way that we wish it to do. On the basis of both the primary and secondary legislation, we estimate that it could take up to two years for all those rules to be finally in place, and then a final two years for the banks to implement the rules. That does not mean that the banks will not do anything in the mean time, because making this change obviously involves them in a huge amount of effort, activity and cost, so they are beginning to think about how they are going to do it. We have always thought that this timetable is measured and proportionate. The very fact that the banks know that we are moving in this direction means that some activities that they might have undertaken in the past they will not undertake in the interim period because they know what the new rules will be and that they will abide by them.

[Lord Tunnicliffe]

I thank the Minister for giving way. Clearly, we would like to see this done more quickly, but I hear the Minister’s response. I presume that, alongside this, there will be a parallel activity by the banks to develop their own structure—the responsibility of directors and so on—and to be in a corporate shape for this structure. Are the Government, through the PRA, participating in or monitoring that development?

[Lord Newby]

Yes, they are. We are talking not about hundreds of institutions but about a small number of banks, which are very heavily regulated already. They are in daily touch with the PRA about one or other aspect of the regulations and that dialogue is ongoing. Indeed, some banks have already announced some of their broader strategic thinking. Others are keeping theirs close to their chest and, in some cases, are looking to make sure that these orders have indeed gone through before they decide what to do. In most cases, by the end of the two years before which the PRA detailed rules will not have come out, I expect the banks to become pretty clear about where they want to end up. They will do it, as I said, in consultation with the PRA because that is the way that the system operates already and will continue to operate in the future.

I hope that I have answered the noble Lord’s questions. I was involved, as was he, with the passage of the Financial Services (Banking Reform) Act, at the start of which there was a lot of scepticism about whether it would be possible to do what we have done today and define a ring-fence satisfactorily. I think that these orders indeed do so satisfactorily. It is a major step forward in a very important process to improve the safety and security of the banking sector. I commend the orders to the Committee.

Motion agreed.

Financial Services and Markets Act 2000 (Ring-fenced Bodies and Core Activities) Order 2014

Monday 21st July 2014 Grand Committee

Motion to Consider

17:44

Moved by

[Lord Newby]

That the Grand Committee do consider the Financial Services and Markets Act 2000 (Ring-fenced Bodies and Core Activities) Order 2014

Relevant document: 4th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Police and Crime Commissioner Elections (Amendment) (No. 2) Order 2014

Monday 21st July 2014 Grand Committee

Motion to Consider

17:45

Moved by

[Lord Taylor of Holbeach]

That the Grand Committee do consider the Police and Crime Commissioner Elections (Amendment) (No. 2) Order 2014.

Relevant documents: 5th Report from the Joint Committee on Statutory Instruments, 6th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, this order was laid in Parliament on 9 July. The Government are seeking to amend the Police and Crime Commissioner Elections Order 2012, which sets out the rules governing the conduct of elections of PCCs in England and Wales.

Following the deeply sad and untimely death of PCC Bob Jones, your Lordships will be aware that a by-election for the West Midlands PCC is due to take place on 21 August. The instrument before the Committee today changes the existing provisions by making candidate addresses available online during ordinary elections and by-elections. The instrument goes further by seeking to raise voter awareness about candidates standing for PCC in their police area by providing for booklets containing candidates’ election addresses to be delivered to residential premises in the West Midlands by-election on a trial basis.

The Electoral Commission has been consulted about our proposals and it has lent its support to them. Indeed, the proposals stem from recommendations that the Electoral Commission made in its report on the 2012 PCC elections.

The police area returning officer—PARO—responsible for the by-election in the West Midlands stands ready to produce the booklets if the instrument is approved by Parliament. Before considering whether it would be appropriate to use printed booklets in future PCC elections, the Government will evaluate the impact on voter awareness during the trial.

I hope that the Committee will support these measures, which are intended to help voters make informed decisions when voting for their police and crime commissioner. Accordingly, I commend the instrument to the Committee.

[Lord Imbert (CB)]

My Lords, I thank the noble Lord, Lord Taylor of Holbeach, for putting some flesh on the bones of this proposal. None the less, I would address the cost of this.

As we know, at the time of the original elections, a YouGov poll showed that 65% of those polled did not want the system; 15% did and 20% did not know. None the less, the Government decided to go ahead with it and were a laughing stock when the election took place, when in some polling stations fewer than 10 people attended. I was told in the Chamber that the election cost £50 million.

Now, accepting that the whole system has cost £100 million to date, and if we pursue it until the regular time of the next elections we must accept that it will be another £100 million or so, is it right that this by-election money—another £4 million at the very least—should come out of the public purse as well? I know it is not in the Act, but when the Bill was passing through your Lordships’ House, like others I thought that if something happened to the police and crime commissioner, he or she would hand over to their deputy.

Did the Minister see the television production, “Meet the Police Commissioner”? If not, will he do so? It should be compulsory viewing for the whole Cabinet. It has not become a Whitehall farce but it is being talked about as a Westminster farce. It has become something of a laughing stock. When the police and crime commissioner in Kent allowed the television cameras in, she was asked by the interviewer about her daily workload. He asked, “What is the first thing you do when you arrive in the morning?”, and she said, “My nails”. She has paid herself £85,000. She has a staff of 16. When they get depressed and bored, she brings her dogs into the office to cheer them up. This really is an awful farce. If the Government do not do something to stop this, they will be the laughing stock.

If the by-election costs more than £4 million, could that come out of the money that has been set aside already for the running of the PCC system and not out of the taxpayer’s pocket, although inevitably at the end of the day it comes out of the taxpayer’s pocket anyway? I ask the Minister: how many more—and I mean more—accident and emergency departments are going to be closed in order to keep paying for it? We have already lost dozens of them. I know that the money has to come from somewhere. Would it not be better to spend that money on saving lives rather than saving red faces in the Home Office and the Government?

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for his—albeit brief—explanation of the order. The comments made by the noble Lord, Lord Imbert, are very relevant to this debate.

I thank the Minister for his comments about Bob Jones. He died at the age of 59 very suddenly and it has been a dreadful shock to his family, friends and colleagues in the Labour Party. He was well loved and very highly regarded. His commitment to the post he held, despite the flaws in the legislation, was not new. He had been on the police committee previously and a local councillor for many years, and he is a great loss to the community. His drive always was to engage with the community and with young people so he leaves a huge gap in the lives of his family, friends and the community he served.

Given all the circumstances and the sense of loss and shock felt, it is all the more disappointing that a by-election has been called in the way it has. The legislation provides for just two electors to be able to call a by-election. I understand that one of those electors is a former candidate for the post. They have called a by-election, with the costs and issues that have been raised by the noble Lord, Lord Imbert, which has to be held 35 days later. That leaves us in the position of having an election on 21 August. I would have thought that there would be some kind of decency—that someone should be buried or at least have a memorial service before someone calls a by-election in those circumstances.

Having mentioned the tremendous loss of a friend and colleague that we feel, I am pleased that my old friend and colleague from the other place, David Jamieson, has been selected to stand as our candidate. I know personally of the commitment and integrity he will bring to the election from my work with him in the other place.

The noble Lord, Lord Imbert, raises some valid questions. When the Police Reform and Social Responsibility Bill started its passage through your Lordships’ House we opposed the position of police and crime commissioners. I also note the Kent police commissioner’s TV programme; “sad amusement” might be one way of describing it. I do not think that is typical of police and crime commissioners; however flawed the process and posts are, most of those elected do the best that they can in the job. The Minister will recall that Tony Lloyd, a police and crime commissioner from Manchester, was helpful to us during the passage of the anti-social behaviour Act when he suggested proposals to deal with child sex grooming and how to close down premises more quickly. He was using his role in a positive way.

That fact is that the legislation was rushed in. It became law only 10 weeks before the first elections. That illustrates that more time should have been taken to think it through, perhaps with some heed taken to our objections. Having said that, we fought those elections and put forward the best people because the posts were there. Those posts remain. We are not opposing the order today, but there are some questions on which we seek clarity. Some measures in the order seem to be there to prevent the Government facing further humiliation over the disastrously low turnouts we saw in the elections and, presumably, the by-election. Both the Electoral Reform Society and the Electoral Commission have raised concerns about the level of turnout and public engagement. The Electoral Commission feared that there would be a turnout of just 18.5% when these elections were held in 2012. What a disaster it would be if we had elections in which only 18.5% of people voted. In fact, it was grossly overoptimistic. Nationally, 14.7% took part in the elections. In the West Midlands, where we now face a by-election, only 12% took part. It was an almost perfect storm.

We had public apathy at best, public opposition at worst and a situation, which we raised again and again with Ministers, where the campaign was digital by default. People would find out information about their candidate by going online, because they would obviously be very interested, finding the details of all their candidates and rushing out to the polling stations to vote for them. Well, that was wrong, was it not? Even if it had been right and those who were interested had looked online, 7 million people on the electoral roll have no access at all to computers and to the information. That appallingly low turnout was therefore inevitable. Can the Minister say anything about the kind of turnout that he would expect to see in this by-election, particularly given its date of 21 August?

The Government are recognising the problem in that the order provides for what it calls a “trial”—I should have thought this was evidence that people should get certain information during election campaigns—of the mailing of candidate election booklets. The returning officer should be able to seek a reasonable sum from the candidates towards the printing of an election booklet. This is the kind of thing that we were saying when legislation went through before but which the Government rejected at the time. I am pleased to say that we have seen more interest in telling people that an election is on than we did then.

In the Explanatory Notes, as the Minister says, there is a partial response to the concerns expressed by the Electoral Commission. I mentioned the lack of awareness of the candidates at elections. Then it was an unfamiliar time of the year for elections: November. No other elections were being held and we rarely have elections in November, just as we rarely have elections in August. There was a lack of information, not just on the candidates. The point still remains about what the elections were for, what they were about, why they should stand, and what the PCCs could do. That has not been made up since those elections took place. When I talk to people in my local area, very few of them know who the PCC is, know what they can do, or have any awareness of their role at all. Therefore all those issues are of extreme concern.

The other issue that the noble Lord did not mention that I sought to address was that at the last elections there was a helpline for those who wanted information, albeit it worked for only 23 days before the election took place. Are there any plans for any kind of helpline this time? Also, there was no provision in the elections in 2012 for people with sight difficulties, or materials in any other language. Can the Minister tell me what has been done to address those issues?

18:00

We said at the time that the election was deeply flawed, but there was no great gloating, with people saying, “I told you so”—it was a bad day for democracy and for the police that there was so little interest and enthusiasm, or engagement and involvement with those elections. However, seeking to make changes for this by-election, and presumably to make an assessment of any improvement, comes at a cost. The noble Lord, Lord Imbert, was absolutely right to raise the issue of costs. I have been trying, from the comments on the order and from the Minister’s comments, to get to the bottom of what the costs are. It is a little confusing. There are few bits of legislation that have no impact assessment, and an impact assessment would have been helpful for this order today to try to get to the bottom of the costs.

The Explanatory Memorandum says that the figure is £300,000—£0.3 million—but the Government have since given out other figures. I have heard the figure of £700,000 raised; another figure was as high as £3 million. Why, then, does it say £300,000 in the memorandum if there are other figures as well? When the Minister winds up, can he clarify exactly how much it will cost and who pays? It is important that we have that precise information. We are losing front-line police officers—in my county of Essex we now have no 24-hour police stations, we have lost PCSOs and full-time police officers, yet the money is being spent on elections. How many police officers has the West Midlands lost, and how many could be paid for by the money being spent on these elections? Whatever budget that comes out of, whether it is the Government’s budget, or the Government try to force local councils in some way—and I cannot believe that even this Government would force more costs on local government—at the end of the day, the taxpayer is paying. I am sure that if I speak to any taxpayer in the West Midlands, they could find better things to spend this money on.

The Minister will be aware that the Explanatory Memorandum says that the Government will “track the performance”. Can he tell me how that will be done? He referred to that in his comments about how the marketing of the elections will be conducted, and that the Government will track its performance. If there is a very low turnout again, what conclusions will the Government draw from the turnout as regards any marketing campaign that is run? I am slightly puzzled by that, so any information that the noble Lord can give would be extremely helpful. Will it incur more costs, and has a budget been set aside to track the performance of the marketing exercise to raise awareness, or will it be done purely on the turnout on the by-election day itself?

I will address some other issues. My attention was drawn to some comments made by the head of electoral services in Birmingham, which I think are reflected throughout the West Midlands region. They relate to the number of polling stations that will be available. A number of the polling stations are in schools. The advantage of August is that schools will not be forced to close for the day for another election, but a number of those schools will be having repairs and maintenance undertaken. I am told that 136 out of 460 polling stations in Birmingham will not be available.

Can the Minister confirm whether enough polling stations will be available, but more crucially, can he say how many of those polling stations will be moved from their normal place? One way to encourage voter turnout is the familiarity of polling stations. People know where to go, because they always go to the same place. I am sure that the noble Lord and I have knocked on enough doors on election day to come across people who, as soon as they see that there is a change, say, “Where do I vote? I don’t know where to go”. How many of the polling stations across the West Midlands region will have to close, so there will be a different polling station for these elections?

Can the noble Lord give a reassurance that all polling stations will have disabled access in the normal way as required by law? Can he confirm what the staffing arrangements will be? I know that local authorities are very concerned, because staff will be on holiday during August when schools are away. There will be staff on holiday during the period leading up to and including election night. Can he address that?

There is also the issue of postal votes. In the debate in the other place, the concerns of the head of electoral services in Birmingham were again raised. He had said that the new postal voting arrangements had,

“the possibility to confuse electors”.

If the Minister could say what arrangements have been put in place to deal with that concern, again, that would be very helpful.

We support the order before us today. However, it is a very sad day for us for a number of reasons. We have lost a very impressive police and crime commissioner. The legislation creating police and crime commissioners has been shown to be flawed and unwanted. There has been a lack of interest and enthusiasm from the public. The unseemly haste with which the by-election is being organised is likely to disfranchise a number of people. The cost of this, when the number of front-line police officers is being cut and police stations are being closed, is to the great shame and discredit of the Government. This is a stop-gap measure, but I urge the Minister to give some clarity in response to the points that I have raised today. I would find that extremely helpful.

[Lord Taylor of Holbeach]

I thank the noble Lord, Lord Imbert, for his contribution and the noble Baroness, Lady Smith, for her comments. The choice of the date of the by-election is not the Government’s; it does not lie with the Government.

[Baroness Smith of Basildon]

I said at the very beginning of my comments that it had been called by two electors, one of whom I understand is now a member of UKIP. Although he was an independent candidate at the time, I wonder whether he will pop up as a candidate for another party in these elections.

[Lord Taylor of Holbeach]

I am grateful to the noble Baroness for making that clear. Yes, she did say that the by-election was called by two people. All I am saying is that, in law, the Government have no locus in fixing the date of a by-election. The by-election is unwelcome both for political reasons, in the sense that having a by-election in August would not be the choice of any of us who really believe in democracy, and because of the circumstances which led to it; namely, the death of Bob Jones, who was a highly respected figure. Although, rather like the noble Lord, Lord Imbert, he was not entirely in favour of police and crime commissioners, he realised that it was an important job and he did it well.

It is important to address the question of money, because there are two sides to it. If you are going to hold an election, you need to spend the amount of money that it costs to have the clerks and the polling stations open and you need to meet the bare costs of an election. In this case, we estimate the cost to be £3 million. What we are discussing today is the cost of the leaflet and its provision. I understand, as noble Lords have said, that these are difficult times, and the Government are mindful of the need to keep public expenditure under control. However, the balance of advantage in this case is for there to be an informed electorate and the leaflet provides an opportunity for that to be the case. We consider that the leaflet will cost somewhere between £700,000 and £1 million, although we cannot be certain. We know that in certain forces the cost would have been as low as £300,000, but in the largest forces, of which the West Midlands is one, the cost is estimated to be £1 million. The Explanatory Memorandum makes that clear. I hope that there is no suggestion that this is not good value for money, because democracy never comes cheap. Those of us who have been involved in democratic politics all our lives know how important it is that people are engaged in democratic processes.

I should also emphasise that this money is not coming out of police budgets; it is coming out of direct Home Office budgets. Of course, it is funded by the taxpayer, as all government money is, but it is not at the expense of proper policing or the role that we would expect of the police.

I have to say that I did not see the “Panorama” programme; I read things about it but I have not seen it. As I think the noble Lord will understand, I am usually quite busy, not least in the House, and I do not see television during the week at all, so I missed it.

You have only to look at some of the successes that PCCs have brought. Consider the role that Bob Jones played in the West Midlands. The noble Baroness made reference to her former colleague in the Labour Government in the House of Commons, Tony Lloyd, and his role in Manchester. I can talk of Nick Alston in Essex, Adam Simmonds in Northamptonshire or Martin Surl in Gloucestershire. There are so many examples of individuals who have really made something of the job and brought something to effective policing. As someone who, I know, has spent his life extolling the importance of effective policing, I hope that the noble Lord, Lord Imbert, will accept that.

The noble Baroness asked particular questions. She wanted to know about helpline accessibility. We intend to provide the booklets in alternative formats, such as Braille, and provide a helpline for the election. Of course disabled access will be available, because it is required by law at all polling stations. It is unfortunate: 21 August is not the time to hold a by-election. However, the law is the law. We have to have it on 21 August and deal with it, so not all the polling stations will be the normal ones. That is all the more reason why it is important that the electorate is informed in the proper way.

There has been a lot of ribbing about turnout. I shall not estimate the turnout. All I can say is that I am sure that all noble Lords present would want a better turnout at this by-election than the 12%-odd turnout in the West Midlands when we had the first PCC elections. Those elections were held, as the noble Baroness, Lady Smith, said, at a time of year when we do not normally hold elections. Next time round, as she well knows, they will be in May, alongside local government elections. I believe that the opportunity of this by-election—unsought as it is—and this order will inform us about public response to the opportunity to elect their police and crime commissioners and seek to make those elections as effective as possible.

If it is necessary to bring legislation forward in future—secondary legislation, most likely—of course the Government will not hesitate to do that. I hope that we will have the general support of the Opposition in bringing it forward, because I am a little confused as to where they stand on how they are to provide for people to vote for police and crime commissioners in future if they are not fully in favour of the system. It will be interesting over the next few months, when the position will no doubt be clarified.

18:14

Over the weekend the PARO’s team confirmed that the polling stations had indeed been identified. Some will need to move from their existing locations, as I said, but those who are responsible on the ground for arranging these elections have done very well. Any elector who already has a postal vote will be retaining it for this particular by-election so they will receive their ballot papers by post. Nobody has mentioned that as far as I know, but it is an important addition.

I have spoken entirely from notes from the Box on this issue rather than reading the grand speech that I have here, but I hope that noble Lords will support the order. It is designed to provide the people of the West Midlands who have the unfortunate duty of finding a successor to Bob Jones with the information that they need to make a proper choice. It is an important job. PCCs have shown themselves to be extremely effective and I believe that it is an important election. I hope that the order we have presented to the House will be supported by the Grand Committee.

Motion agreed.

Mobile Homes Act 2013

Monday 21st July 2014 Grand Committee

Question for Short Debate

18:17

Asked by

[Lord Graham of Edmonton]

To ask Her Majesty’s Government what assessment they have made of progress following the enactment of the Mobile Homes Act 2013.

[Lord Graham of Edmonton (Lab)]

My Lords, this is a good opportunity to review the situation, and that is the spirit in which I raise the issue. There are lots of things that I could say from experience, and especially from correspondence with the people involved. I do this because in 1983 I was a member on the Mobile Homes Act 1983. As a consequence, for the last 30 years I have been heavily involved. When I look back over 30 years the progress made from the situation then to now is quite remarkable and satisfactory. I do not intend to go over old ground of what has been fought over, achieved, and all the rest of it. However, I want to put down one or two markers.

The Minister, in replying to me on issues that I raised, alluded—not to put words in his mouth—to the fact that for the next three or four years the Government were looking forward to the issue bedding down. If he thought I was asking for action tomorrow he was wrong, but I know that he was saying, “Look, give us time to work out the detail”. All I want to say to the department—members of which I see not 100 miles away from me—and Ministers who have taken an interest is that there is a big job still to be done and I just want to point out one or two aspects of it.

I have here a booklet, Park Homes in Cornwall. I am sure it is familiar to the department and those who work there. What puzzles me is the assumption that because we are very creditworthy and using all the facilities, everybody else is the same. From a source that I have, which I accept completely, in Cornwall only 8% of the people who live on parks have access not just to telephones but computers. I do not have the answer, but the department should look at how it is possible to ensure that not just every authority and park but every resident on a park is given the information that they are entitled to. It is a tall order and I am not too sure how it should be done, but I congratulate Cornwall County Council, which has gone out of its way to ensure that residents on the parks are given all the information they need in order to make progress.

I remind the Committee that there are some villains who own sites. The situation has changed. At one time a park was owned by a man or a woman or a married couple, and that was their life. Their job in life was to make sure that the people who lived there, who they knew were vulnerable and sometimes distressed, were looked after. But now there are people who own 30 or 40 parks. Because they have that muscle and it is a big business, they combine with others, and a handful of people have the park home industry in their hands.

There are one or two instances that I want to bring up. The first is the following local newspaper article:

“The company that owns an Isle of Wight mobile home site has been ordered to pay more than £300,000 after offences committed against residents”—

of course, comment can be made that if that is the situation, that is what I want. I do not want people to have to pay. I want people to recognise that although they do not have a gold mine, they have something that pays well and they should look after it and do what needs to be done.

We all know the situation in Wolverhampton. I have a document here from a good friend, who lives in Wolverhampton. He is the secretary of the PHRAA. He woke up one night to find that the owner had set fire to some oil drums. In effect, he was trying to force him out. He was very quick. He was on to me like a shot. I spoke to the local police and they set up a system whereby they could co-ordinate. One of the problems we have is the number of different people involved. There is the department, which I deeply respect and the people who work in it, but we not only have the people who work there, but we also have politicians. There are residents’ associations, and all sorts of other things. We even have the police.

A few years ago, Detective Inspector Colquhoun, in Bromsgrove, solved the problem. We usually find that if we make a request, most police will argue that disputes on parks are civil matters, not criminal. Yet, Detective Inspector Colquhoun was called out to the park when a gang of eight tried to burn out this person and some others. The gang was caught and taken to court. Eight of them were given a total of 64 years in prison. That must have been a very big case, but the beauty was that under the Proceeds of Crime Act they were also fined hundreds of thousands of pounds because they could not show where their money had come from. Of course, that is very important.

I have one or two cuttings from various places. A caravan site was fined for safety breaches. Many site owners, as part of a quid pro quo, ask for a pitch fee or 10% of the sale, but they do not carry out the basic requirements or ensure that various aspects of their responsibilities are carried out. Many of the residents meekly accept that the law is the law and think that they can do nothing about it. When they raise the matter with the local police or the council, because of pressure from other places, including this place, those organisations say, “Well, it’s easier for us to tolerate a bad situation than to get involved”, and it costs a lot of money to the council or the police.

An article in the Cornish Guardian has the headline: “£11,500 bill for parks’ failings”. One park was found guilty of having,

“street lamps left with broken glass fittings, exposed electrical wiring in a clubhouse and a former swimming pool building being demolished by unqualified staff”.

The article continues:

“An inspection found sections of the roof fallen in, guttering blocked and electrical wiring exposed”.

People are getting away with these things. Frankly, we ought to be man enough to realise that they should not. The Herald ran an article with the headline: “Big fine for unsafe lights, wiring and pool building at caravan park”. I do not want to see headlines like that, because I know that behind them is human misery.

About a month ago, on 2 July, the marvellous organisation fronted by Sonia McColl presented a petition to No. 10 Downing Street, and then came to a meeting in Room No. 10 here, attended by Members of Parliament and others. They were quite clear in their minds that although they had won one or two victories, the biggest victory was the ability of a site owner to stop a sale, and, further, still to demand 10% of any sale. That battle is going on now, and so far, so good. But we need to watch the situation very carefully because many people who live in parks are single, elderly and unwell. I am frightened to raise the issues that they have in order to keep their homes. They have their homes, which they look after. When you look at a magazine or some of the journals, you will see that the products that these people are selling are absolutely fine, except that there are some blemishes.

There are no instant solutions; if there were, if it were possible to do things by the wave of a wand, I know that this Minister, looking after this Committee and others, would do it. But the strategic value of combining forces with other people needs to be recognised. The police, councils, councillors and authorities are all organisations that can make a contribution.

[Baroness Williams of Trafford (Con)]

My Lords, I ask the noble Lord to conclude his remarks because he has gone significantly over time.

[Lord Graham of Edmonton]

Time is up. Thank you.

18:32

[Lord Best (CB)]

My Lords, I am very grateful to the noble Lord, Lord Graham of Edmonton, for providing us with this chance to consider the position of mobile home owners following the enactment of the Private Member’s Bill which I had the honour of taking through your Lordships’ House. I pay tribute to the noble Lord’s many years of tenacious campaigning on behalf of mobile home—or park home—residents. I took on the Mobile Homes Bill entirely because of my admiration for the noble Lord’s tireless work.

I also want to record my appreciation for Peter Aldous MP, who piloted the legislation with great skill through its stages in the other place. In noting the all-party nature of parliamentary backing on this issue, I also thank Annette Brooke MP, joint chair of the relevant APPG, for her persistent support. In addition, we all owe a debt of gratitude to the hard-working civil servants who have handled all these difficult issues over many years with great skill.

There is no doubt that the Mobile Homes Act 2013 has righted some terrible wrongs and is a landmark for the thousands of residents of mobile homes who faced grave injustices from the evil practice of so-called “sale blocking”. When I got involved with these matters and talked to residents in their homes, I was deeply shocked to discover the appalling behaviour of certain site owners. These had acquired the freehold ownership of sites—some of which were previously quite idyllic little rural communities—and set about exploiting, harassing and intimidating residents, making huge fortunes from acquiring their homes at knockdown prices and selling on at huge profits. Not only that, but services on sites were neglected; the service charges—pitch fees—were exorbitant; and peaceful communities of older citizens suddenly became places of fear, insecurity, danger or even violence.

I believe that the Act has been a power for good both in outlawing sale blocking and in introducing licensing arrangements that, with proper opportunity for appeals to the First-tier Tribunal, mean that pitch fees must be reasonable and site owners must manage their sites effectively. It is gratifying to note that, in most cases, site owners are now using the standard forms recommended by the Department for Communities and Local Government for their agreements with residents on pitch fees.

So far so good, but we always knew that the Act could not do everything, and park home residents still face serious challenges. I shall set out four areas for further action by the Government. I hope that they may be addressed not by another Private Member’s Bill, as it is difficult to get time allocated to such Bills, but by primary government legislation—particularly when the next housing Bill is prepared.

First, when the Mobile Homes Act was a Bill, we recognised that it could not cover the separate but related issue of excessive charges by site owners controlling the supply of liquid petroleum gas—LPG, often calor gas—distributed to residents’ homes. We heard of cases where the site owner, holding residents to ransom, charged double the sum he paid to the liquid gas suppliers. Similar problems with piped gas, electricity and water were the subject of an Upper-tier Tribunal case last year. The tribunal has outlawed such profiteering from the supply of those utilities—although the worst site owners still ignore those rulings—but many sites depend on LPG, and exploitation through controlling that source of heating can mean fuel poverty for elderly residents. Action is needed.

Secondly, the Act makes provision for a review of whether a fit and proper person requirement should be introduced to debar the real gangsters and profiteers who have moved in on this lucrative opportunity to exploit older people. Ministers have said that this exercise will not be undertaken until 2017. In the mean time, some sites remain in the ownership of some pretty unsavoury characters. It is surely unwise to allow those who are serving prison sentences, those with criminal records, bankrupts, those who have been found seriously wanting by a First-tier Tribunal and other undesirable speculators to be awarded licences to manage park home sites. Although the Act may have chased out some of those operators, some offenders have remained in control of sites. It is open to the Government of the day at any time to bring forward the necessary statutory instrument that would require site owners to be fit and proper persons. I urge that process to be pursued as soon as possible.

Thirdly, there is the question of holiday homes being used as permanent residences and occupied on virtually the same terms as other mobile homes, but falling outside the important protections of the Mobile Homes Act. Clearly, genuine holiday homes serve an important function and help local economies, but if some so-called holiday homes are in reality permanent retirement homes, with the protections afforded to other park home occupiers being avoided simply by requiring residents to take an annual holiday elsewhere, surely they should be brought within the scope of the 2013 Act. This is unfinished business, which a forthcoming housing Bill needs to address.

Finally, there is the issue of the 10% sales commissions—payments to the site owner when a resident sells. That was the subject of the rally which the noble Lord, Lord Graham, mentioned, when hundreds of park home owners came to Parliament earlier this month. I am familiar with the concept of exit fees—typically of 1% of sales proceeds—paid by outgoing leaseholders in many retirement housing schemes. The Office of Fair Trading, just before its demise, condemned this practice whereby the money raised was not used to improve the housing or top up “sinking” funds, which provide for future major repairs. The OFT opposed exit fees that were not used to keep down monthly service charges but instead simply represented a windfall gain for the freeholder. I suggest that the same approach should be applied to 10% sales commissions required by owners of mobile home sites. If the sales commission is used to enhance conditions on the site—improve roads, plant trees, upgrade electricity supply lines et cetera—then everyone benefits. The value of a park home may be 10% higher where the quality of a site is kept up to good standards. This suggests that the charge could pay for itself. All occupiers then enjoy better facilities and the site owner benefits, too, because his commission is 10% of a higher sum.

Conversely, if the site owner pockets the commission and neglects his duties, and the site deteriorates, he does not justify extracting a substantial commission. Indeed, I am told that there are cases in which the site owner deliberately runs down the conditions on the site in order to put pressure on the mobile home owners to leave so that more sales, more commissions, will flow in. That is a travesty.

Now that local authorities are being resourced—I hope adequately—to ensure that licence-holders are doing what they should, the proposition from campaigners like Tony Turner in Cornwall deserves to be progressed. They want to align the requirement to pay a large commission to the quality and quantity of time and money invested in the site by its owner. Paying for something rather than paying for nothing changes the picture considerably. A change to make 10% commissions conditional on performance requires primary legislation. However, means of implementing a change seem to be in place already. Local councils would have to be satisfied with the condition of the site and its management before allowing commissions to be demanded. That certainly looks like a priority for legislation when the chance arises.

I conclude by underlining the appreciation of all those concerned with the fate of mobile home occupiers for the sterling efforts of legislators, civil servants, campaigners and residents’ associations but, above all, for the life’s work of the noble Lord, Lord Graham of Edmonton.

[Lord Graham of Edmonton]

Hear, hear!

18:42

[Lord McKenzie of Luton (Lab)]

My Lords, we should be grateful to my noble friend Lord Graham of Edmonton for causing us to keep a focus on mobile or park homes following the passing of the Mobile Homes Act 2013. As we know, and for which we admire him, my noble friend has been a long-standing campaigner for the rights of park home residents. He could be forgiven for signing off and putting his feet up with a job well done now that the legislation is passed, but it is not in his nature to stop campaigning and to give up on the cause. I acknowledge also that the Act was expertly steered through your Lordships’ House by the noble Lord, Lord Best, who is a housing expert to boot, and who had the support of the Government and from all Benches in this House.

However, my noble friend’s Question is a reminder of the nature of our role in such matters. The job is not done just by passing the Act or, indeed, by Ministers securing any necessary funding. It is about seeking to ensure that the legislation is delivering as expected. Of course what spurred this legislation in the first place were the serious abuses in the sector, the victims of which are mostly elderly—“frightened” was the word used by my noble friend and the noble Lord, Lord Best—people. There was also the powerful testament to these abuses not only from the organisations representing the victims but from Members of the Commons and several noble Lords, including the noble Lords, Lord Cormack and Lord Best, the noble Baroness, Lady Scott of Needham market, and my noble friends Lord Whitty and Lord Graham.

The purpose of the legislation was to stop those abuses, giving reassurance and justice to those 85,000 households for whom these sites were intended to be their homes. The legislation was also to create and sustain a level playing field for good site owners and operators, preventing them facing unfair competition from unscrupulous ones. What has happened so far?

Sections 1 to 7 of the Act were brought into force only on 1 April this year, a year after the Act was passed. This date marked the end of the Government’s moratorium on new burdens for micro-businesses. What benefit does the Minister think was gained by the deferred implementation of those provisions? Inevitably this means that there has been very limited opportunity to see how some of the provisions are working in practice. But so far as the licensing role in Section 1 is concerned, is there any indication of the level of fees local authorities are charging and whether they have sought to increase their capacity to undertake their role effectively? Will the Minister say how many authorities in England have “relevant protected sites” within their boundaries?

One of the major bones of contention of the past has been circumstances where site owners have tried to block home owners selling or gifting their property. Section 10 prevents this happening in different ways depending on whether the home is subject to a new or existing agreement. This section has been in force for more than a year and has presumably been tested in practice, certainly with regard to existing agreements. Will the Minister tell us whether any problems have yet arisen from its application and whether site owners are seeking to circumvent or have circumvented its intent?

As the noble Lord, Lord Best, said, we have had no movement on the introduction of a fit and proper person test for site owners and operators. That was a major concern when we debated the Bill and when it was introduced in another place. Such a test was recommended by the CLG Select Committee and strongly backed by the Park Home Owners Justice Campaign. If we had that fit and proper person test, it would address some of the real issues that are still going on in the sector, as we have heard from my noble friend.

Section 8 includes a power to introduce a fit and proper person test but this power has not yet been used. In replying to the Second Reading debate, the then Minister, the noble Baroness, Lady Hanham, explained that it was not,

“the Government’s intention to impose an industry-wide fit and proper requirement at present. New burdens on business are always a last resort”.

However, she went on to say that,

“we will be reviewing the situation after a suitable period—I hope that would be shorter rather than longer—to see how behaviour in the industry has changed”.—[Official Report, 1/2/13; col. 1814.]

Will the Minister confirm that “shorter rather than longer” accords with his view and say what plans there are to review the situation? Must we wait until 2017, as the noble Lord, Lord Best, suggested? What sort of new burden would be unreasonable to impose on someone who was not a fit and proper person in those circumstances?

In that debate, the noble Baroness, Lady Hanham, also responded to points raised by the noble Lord, Lord Best, concerning energy efficiency and fuel poverty. The noble Lord has raised the issue of LPG profiteering again today. Concerns were similarly expressed at the time by Consumer Focus. In particular, there was the suggestion that the standard assessment of energy performance used for the Green Deal was inapplicable to park homes. There were added complications about single metering arrangements on some sites. The noble Baroness, Lady Hanham, indicated that the matter had the attention of the Prime Minister, no less, and that work was under way with DECC officials to see what might be done to improve the position. Will the Minister give us an update on progress?

Noble Lords will doubtless also be aware of the recent Westminster Hall debate initiated by Annette Brooke MP, which focused on the perceived inequity of the commission—up to 10% of the sale price of the pitch—payable to site owners. I raise this point not because we consider that there should necessarily be changes to those arrangements at this stage, although the issue of basis on which they are levied, raised by the noble Lord, Lord Best, seems worthy of review; we acknowledge that the mechanics of the payment are changing—but because it was an obvious opportunity for any perceived failings of the 2013 Act to be aired, and none was.

Two residual questions flow from this. How confident is the Minister that the fundamental changes that the Act brings about are being effectively communicated within the sector, and what more is planned? The legislation was intended to prevent unscrupulous behaviour of site owners and managers, who hitherto have harassed, ill treated and made life intolerable for too many vulnerable people. What arrangements are in hand for the routine monitoring of the legislation’s effect and what early warning systems are in place to identify avoidance of its rigours? As we have heard from my noble friend Lord Graham, these abuses are still going on despite the Act, and we have a concentration of ownership that is deeply worrying.

The efforts of my noble friend over so many years have been the major factor in bringing significant improvement to the lives of thousands of people. We owe it to him to make sure that this legislation stands the test of time, just as my noble friend’s persistence and commitment have endured.

18:50

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)]

My Lords, I am pleased to be answering this Question. Perhaps I may begin, as have other noble Lords, by acknowledging the tireless advocacy of the noble Lord, Lord Graham, on behalf of park home residents. I am therefore pleased that the noble Lord lent his support to the Mobile Homes Act 2013, which, as he rightly acknowledged, puts in place many of the reforms that he has campaigned and argued for over many years. I welcome the noble Lord’s acceptance that the Government have shown determination to provide protection to home owners. However, I totally agree that it does not end with the Act. The noble Lord mentioned Park Homes in Cornwall as an example of good practice. It is entirely appropriate that where we see good practice it should be shared across the country.

I should also at this juncture acknowledge the great efforts and skill of the noble Lord, Lord Best, in his navigation of the Private Member’s Bill last year. The Bill received Royal Assent on 26 March 2013 and, as the noble Lord, Lord McKenzie, said, received support from all sides of the House.

Before I answer some of the specific questions that were asked, I remind the Committee that the Act puts in place measures that will enable the park home industry to develop on a sustainable footing, where site operators who run a decent and honest business can prosper while those who abuse their home owners and have no regard for health and safety will no longer be able to profiteer.

The Act is the biggest shake-up in the law relating to park homes in 30 years. It marks the Government’s commitment to providing greater protection to the rights of park home owners and ensuring that sites in which they live are safe and healthy places. However, we are not complacent and recognise that more work needs to be done to change the culture of the sector and crack down on the rogues operating in it, about whom we have heard today. To achieve this, we will continue to work with partners, the police and cross-government enforcement agencies to raise standards generally and remove criminality from the sector.

On enforcement, we are clear that there needs to be engagement with and education of site operators so that they have the opportunity to put matters right voluntarily before authorities go down the route of formal enforcement action. To that end, the department has set up a licensing working group comprising local authority practitioners, the industry trade bodies and representatives from national resident groups to look into best practice in setting licence fees and enforcement, and to provide guidance on the new licensing provisions for local authorities and site operators.

As acknowledged by the noble Lord, Lord Graham, very little professional advice was available to home owners prior to the Mobile Homes Act 2013. Since last May, we have funded the Leasehold Advisory Service—known as LEASE—to give home owners and site operators free and impartial initial advice on their rights and obligations. Our funding of LEASE, to help people understand and know their rights, is an important step in empowering home owners to stand up for their rights, which was a concern expressed by the noble Lord.

LEASE has already advised about 1,000 customers and is working to increase its outreach. Last summer, the Government also launched a leaflet campaign aimed at every park home resident in England to raise their awareness of the new law and where they could gain further information about it. In that regard, more than 180,000 leaflets were distributed and feedback has been very well received and informative. We recognise that there is also a need for better education of their obligations and responsibilities among site operators and a greater understanding and empathy from them on the rights of home owners. We will continue to work with the industry trade bodies to achieve this.

Turning to some specific questions, the noble Lords, Lord Graham and Lord Best, referred to the 10% commission paid to the site owner when a home is sold as being unfair. Indeed, it has been suggested previously that it should be abolished. It is our belief that commission is an important income strand for park home businesses, enabling them to ensure that sites are properly managed and maintained. If their commission were reduced or abolished there would be a need for a compensatory increase in pitch fees to cover the shortfall in income. As noble Lords will know, in 2006 under the previous Administration, the department consulted on the appropriate maximum rate. In 2012 the Communities and Local Government Select Committee also held an inquiry into the park home sector and considered the issue of commission. The committee recommended that the right of site owners to receive up to 10% commission from the sale of a home should remain in place. Given the balance of views and the committee’s recommendation, the Government do not see a strong case for changing the current system.

The noble Lord, Lord Best, also referred to Ministers recently saying that 10% was an important income strand. The 2013 Act introduced important provisions on site licensing, which came into force on 1 April this year. These are hugely important changes, giving local authorities for the first time powers to take enforcement action against the rogues who refuse to maintain their sites. The issue about a fit and proper person was raised by both noble Lords, Lord Best and Lord McKenzie. The Act enables the Secretary of State to introduce a fit and proper test through secondary legislation should that prove necessary. However, the position cited by the noble Lord, Lord McKenzie, as set out by my noble friend Lady Hanham, has not changed thus far, and the Government are not currently committed to introducing these measures. It is important to see how important the other measures in the Act will be in delivering changes in behaviour in the sector before we introduce such a system. In some cases, that could be bureaucratic to run and could impose additional costs on all owners, good or bad. Therefore, the Government do not intend to bring forward secondary legislation until they have conducted a full review of the effectiveness of the legislation, three years after the licensing provisions in the Act have been introduced—and only then following a public consultation on the proposals.

The noble Lord, Lord Best, raised the issue of energy, and the important issue of park owners being subject to overcharging for liquid petroleum gas and unfair administration charges in connection with the supply of gas and electricity. I understand that the Upper Tribunal Lands Chamber has ruled that charges for things such as reading electricity meters and sending out bills are not eligible unless the park owners are expressly allowed to be charged under the pitch agreement. In any such case, such charges would need to be reasonable.

The Government are committed to providing a fair deal for park home owners in relation to energy charges. Noble Lords may be aware that the Department of Energy and Climate Change will shortly—I qualify shortly by saying imminently—be publishing a call for evidence around energy issues on park home sites. All I can say is: watch this space. The noble Lord, Lord McKenzie, raised several questions on deferment benefits. We have allowed local authorities time to prepare for the new regime. He also talked about the level of fees charged by local authorities. We have not monitored this, but on average fees are about £12 per pitch per annum. In terms of the specific question on how many authorities have protected sites, I shall take the liberty to write to him and other noble Lords in that regard.

Turning to the review of the Act, which was raised by the noble Lords, Lord Best and Lord McKenzie, as I have already alluded to, we will carry out a review of the effectiveness of the legislation in 2017. Although it is too early to say what the terms of the review will be in measuring effectiveness, it is likely to look at: whether poor and unacceptable practices, such as sale blocking, which has been highlighted today, have ceased; whether professionalism in the sector has improved; and whether conditions on poorly managed sites have improved. Ministers will then decide whether there is a need to introduce through the reserve powers in the Mobile Homes Act 2013 the “fit and proper” registration requirements.

The noble Lord, Lord Graham, talked about combining forces and best practice up and down the country. These are all things that the Government totally share. That resonates across the Committee, but we acknowledge that there is more work to do. We want to work with partners so that this small but very important part of the housing market can be put on a sustainable footing for the future. Let me reiterate that the Government are totally committed to improving this sector, so that those who run a professional, honest business can prosper without unfair competition from rogues, and where home owners, some of whom are vulnerable, can be assured that their rights are respected, their health and safety properly protected and that they will not suffer bullying and harassment.

Committee adjourned at 7.01 pm.

House of Lords

Monday 21st July 2014 Lords Chamber

Monday, 21 July 2014.

14:30

Prayers—read by the Lord Bishop of Coventry.

Death of a Member: Lord Lewis of Newnham

Monday 21st July 2014 Lords Chamber

Announcement

14:37

[The Lord Speaker (Baroness D'Souza)]

My Lords, I regret to inform the House of the death of the noble Lord, Lord Lewis of Newnham, on 17 July. On behalf of the House, I extend our sincere condolences to the noble Lord’s family and friends.

Jobseeker’s Allowance

Monday 21st July 2014 Lords Chamber

Question

14:37

Asked by

[Lord Brabazon of Tara]

To ask Her Majesty’s Government what assessment they have made of the latest employment data released by the Office for National Statistics; and what implications that has for the number of claimants of Jobseeker’s Allowance.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)]

My Lords, the employment rate has never been higher and the inactivity rate has never been lower. There are a record 30.6 million people in work and the number of people claiming jobseeker’s allowance has fallen for 20 consecutive months. It is down by more than 400,000 on the year to 1.04 million.

[Lord Brabazon of Tara (Con)]

I thank my noble friend for that reply. Can he confirm that those excellent figures are spread across the whole country, not just London and the south-east as some might have us believe? Will he also comment on the leader in last Thursday’s Times, which suggested that part of the responsibility for the reduction in unemployment lay with the Government’s welfare changes?

[Lord Freud]

Since 2010, 1.8 million people have got jobs. Nearly 80% of that growth was outside London, with all regions being up in that period. As for the role of benefit reforms in our economic recovery, my view—this is something that statisticians will work on for some time—is that we are beginning to move into some of the structural problems that we have had for many years now, and are moving through the cyclical effects into those structural requirements.

[Lord German (LD)]

My Lords, the jobseeker’s allowance is being subsumed into universal credit. Universal credit is being moved along and rolled out slowly; it is much better to get it right than hastily to put something in place that goes wrong. However, it is having a significant impact on the number of people who are being helped and getting into work. Will my noble friend help the House by identifying what the impact would be of the Labour Party’s proposal to hold up and stop the rollout of universal credit on those who are seeking jobs in this country and those who are getting help from joining universal credit?

[Lord Freud]

I think it would be pointless to slow down universal credit, which is now rolling out smoothly. This year, we are rolling it out right the way through the north-west, moving through couples and families. Any delay to that process withdraws support from the people who need it. We have, however, rolled out the claimant commitment, which is part of universal credit, right through the country. The whole drive of that reform is to help and coach people into work, and that seems to be having a good effect.

[Lord Bradley (Lab)]

My Lords, the Minister will no doubt have seen the recent report from the Resolution Foundation suggesting that the extent of the fall in real wages has been underestimated due to the rise in self-employment. What steps are being taken to ensure that we have an accurate assessment of real wages?

[Lord Freud]

The self-employment figures are up strongly, but I need to point out that 60% of the gain in self-employment since 2010 has been in higher-skilled, managerial and professional jobs. It is interesting, when you look at real, living wages, that recent settlements have moved above inflation. There is a lot of variation within the pay settlements, and those in finance and business services have fallen by 0.7%, whereas the figure for retail is up by 2.2% and for manufacturing by 1.8%, running with or above inflation. Some of the suffering being seen in the City is something that I suspect the party opposite would not weep too hard for.

[Baroness Wall of New Barnet (Lab)]

My Lords, can the noble Lord share with us how many of those jobs will lead to a strong career? For instance, how many lead to apprenticeships, and how many of those jobs give young people the aspirations to go on and make a career for themselves, rather than having a job for a very short time, perhaps without a permanent contract? There must be figures that show that. The importance that this and the previous Government put on apprenticeships must prevail for those permanent jobs to be gained.

[Lord Freud]

Apprenticeships are a cornerstone of this Government. Overall, we have had more than 1.1 million extra apprenticeships for youngsters since the election—a 40% increase on the equivalent period before the election, although I acknowledge that the previous Government were also pushing up the apprenticeship rate.

[Lord Flight (Con)]

My Lords, the figures on employment are extremely good news but the data on productivity, so far, are not quite such good news. Does the Minister have any views on why productivity has been so slow to increase? Might it have anything to do with Labour’s tax credits subsidising wages?

[Lord Freud]

A vigorous debate is going on among economists about what has happened to productivity. The most interesting study that I have seen lately was from the noble Lord, Lord Goodhart, and one of his colleagues, which looked at productivity as a cyclical impact, which we should be able to get through later on.

[Lord Foulkes of Cumnock (Lab)]

My Lords, since this Question and Answer show all the features of very careful preparation, I am sure that the Minister will be able to answer this. What percentage of the jobs that have been created are: first, part time; secondly, minimum wage; and thirdly, zero-hours contracts?

[Lord Freud]

I did not need a huge amount of preparation for this Question because it is a slam dunk. The figures for employment are very good. If you are looking at part-timers, the number who do not want to be full time are down by 1.5 percentage points—the fastest decline on record. Depending on the figures you take, we have between 2% and 4% of people on zero-hour contracts, and the CIPD says that people on those contracts are as satisfied with their jobs as people on other contracts.

[Lord Forsyth of Drumlean (Con)]

Does my noble friend share my disappointment that the Opposition can do nothing but carp at this very good news on jobs? Could he remind us what the shadow Chancellor predicted would happen to unemployment as a result of our policies?

[Lord Freud]

My noble friend asks me to remind the House that the leader of the Opposition predicted a million job losses as a result of our policies. I am very happy to remind the House of that fact.

Manufacturing

Monday 21st July 2014 Lords Chamber

Question

14:45

Asked by

[Baroness Perry of Southwark]

To ask Her Majesty’s Government what assessment they have made of the manufacturing output data for the year to April 2014; and what steps they are taking to encourage more exports by United Kingdom manufacturers.

[Lord Popat (Con)]

My Lords, manufacturing output for the year to April 2014 rose by 4.4%, the fastest rise since 2011. Industrial production rose by 3% over the same period. Over the past year UKTI has assisted more than 40,000 firms to export, winning £22.6 billion of new business for manufacturers. Since 2011, UKTI has supported some £10 billion of major project wins, each in excess of £500 million. In 2013, UKTI secured £13 billion of defence and security exports.

[Baroness Perry of Southwark (Con)]

I thank the Minister for that very encouraging reply. Would he agree with me that the manufacturing sector is probably the most important in leading Britain’s growth, and the most optimistic in terms of our growth in exports and, therefore, righting the balance of payments?

[Lord Popat]

I agree with my noble friend, and we are proud of it. We are making things again in the United Kingdom. This is excellent news for the future security of skilled workers and for our economy. Manufacturing is one of the two sectors able to drive productivity growth across the economy through cross-sectoral supply chain linkages. That means potential economic benefits at every stage of the manufacture of a product, from the beginning of an idea to its development and production, through the supply chain to eventual consumer use. The Government are proud of the steps we have taken to support and advise the manufacturing sector. However, we know there is more we need to do.

[Lord West of Spithead (Lab)]

My Lords, one of the greatest successes we have had is defence manufacturing exports. Is the Minister not concerned that, on an Apache order, we are going for a non-competitive purchase of something from a foreign nation, rather than competing and giving a British firm a chance to do that work?

[Lord Popat]

My Lords, the department, through UKTI, is pursuing actively the sale of more defence equipment abroad but, when it comes to buying equipment for UK security, it is up to the Ministry of Defence to make those decisions. There must have been a business case to secure defence equipment from abroad.

[Lord Dholakia (LD)]

My Lords, we are delighted with the recent visit of George Osborne, the Chancellor of the Exchequer, and the former Foreign Secretary, William Hague, to India. There are further visits planned by Nick Clegg and Vince Cable. How are we monitoring the situation relating to British exports to that country? What has been the impact of those discussions so far?

[Lord Popat]

My Lords, we look at emerging markets very carefully, particularly the BRIC markets and especially India and China. In fact, both the Chancellor and the then Foreign Secretary were in India meeting the new Prime Minister, Narendra Modi, to see what we can do to export more to India. Our trade with India is to the tune of about £17 billion now in a two-way bilateral relationship. This is the area we want to increase year after year. Our target for 2015 is £25 billion.

[Lord Stevenson of Balmacara (Lab)]

My Lords, can the Minister confirm it is still the Government’s intention to double exports to £1 trillion by 2020? Given that, can he assess the contribution to that target that is going to be made by the £5 billion export refinancing scheme, which was launched in July 2012 and is yet to help a single company, and the £1.5 billion direct lending scheme launched seven months ago, which has received only one application?

[Lord Popat]

My Lords, it is true that the Government’s target is to achieve the £1 trillion export level by 2020. That is quite a challenging and ambitious target, and we will continue to work towards it. We are developing an economic road map to the £1 trillion target and we will draw on this to inform our priorities for the future. We are also investing huge sums of money in UKTI, which is actively pursuing measures to make sure that British companies are able to export abroad. Most importantly, the recent initiative of onshoring—bringing production back from other countries to the UK—will help our export ambition.

[Lord Pearson of Rannoch (UKIP)]

My Lords, does the noble Lord agree that, in view of his earlier answer, we should therefore concentrate our efforts on the Commonwealth, the Anglosphere and the markets of the future, and stop wasting so much of our energy on that “Titanic” which is the European Union?

[Lord Popat]

My Lords, the Commonwealth is our family, and we are very keen to see more business done in Commonwealth countries—hence the Government have appointed ambassadors to some of them to see how we can increase trade with them.

[The Countess of Mar (CB)]

My Lords, many years ago when the Minister’s noble friend Lord Young of Graffham was standing at the Dispatch Box, I expressed my concern about our loss of manufacturing industry and was told that it did not matter because the service industries—and, in particular, the services provided by the City—would support the United Kingdom. Have the Government now changed their view?

[Lord Popat]

My Lords, the noble Countess raises a very important question. We have not changed our view but we have changed our direction. Manufacturing accounts for 10% of our economy and generates 54% of our exports, so we are encouraging more manufacturing in the UK and helping manufacturers to manufacture more so that they can export more. Equally, our financial services are important, and they also generate quite a large amount of our export trade.

[Lord Naseby (Con)]

My Lords, is my noble friend aware that the CBI and the chambers of commerce have welcomed enormously the recent changes to export finance, which undoubtedly help us to move towards this challenging target? However, one area where still nothing seems to have changed, as I have raised before, is the promotional material behind the Queen’s award for exports. Can my noble friend have a look at that situation to see whether we can bring it up to date?

[Lord Popat]

Yes, my Lords, the Government are encouraging more exports through UKTI. The promotional material for the Queen’s award for exports is an issue that we will certainly look into.

[Lord Tomlinson (Lab)]

My Lords, will the Minister reflect that he gave a rather inadequate answer to the question asked by the noble Lord, Lord Pearson of Rannoch, who made a nonsensical suggestion about our relations with the European Union? Do not the Government, as the basis of their negotiation for improvement in our relationships, believe that we should not ignore nonsenses but stand up and attack them? Our future is quite irrevocably linked to developments in the European Union, and I do not think that we do ourselves any favours by ignoring the noble Lord, Lord Pearson, when he suggests otherwise.

[Lord Popat]

My Lords, when it comes to business, we need Europe and Europe needs us—in fact, 45% of our exports are to the European Union. We want to continue making sure that we work with Europe well, but we need a reformed European Union and a 21st-century European Union.

Railways: High Speed 3

Monday 21st July 2014 Lords Chamber

Question

14:53

Asked by

[Baroness Eaton]

To ask Her Majesty’s Government, following the announcement by the Chancellor of the Exchequer on 23 June of a possible HS3 rail link between Manchester and Leeds, what assessment they have made of the potential benefits to northern cities of such a link, and particularly to those in West Yorkshire.

[The Minister of State, Department for Transport (Baroness Kramer) (LD)]

My Lords, the Government have asked Sir David Higgins to produce ambitious proposals for connecting the great northern cities. This work will look at how to bring the benefits of high speed rail to the north more quickly, as well as initial proposals for faster east-west connections—including options on route, timescale and cost—by the time of the Autumn Statement later this year. This will include an assessment of the potential benefits of the proposals.

[Baroness Eaton (Con)]

I thank my noble friend the Minister for her reply. Should HS3 be built it would be some considerable time before the benefits of it were felt in Manchester and Leeds. Can my noble friend tell the House what transport improvement options have been considered to bring much-needed stimulus to the towns between Manchester and Leeds in the Calder Valley?

[Baroness Kramer]

My Lords, I know my noble friend’s interest in the Calder Valley so I can say generically that we have been investing very heavily in transport schemes in the north. Some £554 million for schemes outside London was announced in the 2012 Autumn Statement, of which £378 million—more than half—was for the north. As for the Calder Valley, the northern electrification task force has been set up to recommend lines for electrification, in which I know the noble Baroness is interested. We would expect it to consider this line alongside other scheme proposals. The task force expects to submit its interim report in February 2015.

[Lord Faulkner of Worcester (Lab)]

My Lords, while it is generally understood that the Chancellor’s announcement about HS3 came as a complete surprise to the Department for Transport, is the noble Baroness aware that the Government’s commitment to the extension of high speed rail is very welcome and can she confirm that no country in the world that has embarked on a programme of high speed rail construction has regretted it?

[Baroness Kramer]

I can certainly confirm the comments from the noble Lord, Lord Faulkner, that high speed rail is a very effective form of transport. It is one of the reasons we have chosen it. However, we have never thought of High Speed 2 as being the limit of our ambition. We have studies under way to look at taking the benefits of high speed rail to Scotland, including what we now call HS Scotland, and we are obviously looking at HS3 and at many more programmes to provide connectivity beyond that.

[Lord Shutt of Greetland (LD)]

My Lords, the word “connectivity” is very appealing. It will be even more appealing if we get more connections that work. Does the noble Baroness agree that if we are to have an east-west HS3 it is even more important that HS2’s arrival in Leeds is not at a hammerhead terminal but at a terminal that really connects with everywhere else in Yorkshire?

[Baroness Kramer]

I fully understand the interest of the noble Lord, Lord Shutt, in connectivity. We consider it to be vital. All the options for the route for phase 2 of HS2 are now being studied, including exactly how stations will work. Connectivity has been built into that discussion with intensive engagement with local authorities and various other stakeholders in the area.

[Lord Adonis (Lab)]

My Lords, does the Minister agree that the train currently called the TransPennine Express is one of the worst offenders against the Trade Descriptions Act in modern Britain? Can she tell us why the Government still do not have a firm plan to get HS2 to the north, let alone HS3? The current HS2 hybrid Bill stops at Birmingham and the Government still have not even confirmed the route for HS2 north of Birmingham to Manchester, Sheffield and Leeds, let alone the legislation. When do the Government expect to introduce legislation to take HS2 north of Birmingham? Will this be before or after work starts on HS3?

[Baroness Kramer]

My Lords, I am sorry to hear the cynicism from the noble Lord, Lord Adonis, because he has heard the commitment from this side of the House many times. We are moving ahead at a pace with determining the route for HS2. However, we are doing it with very intense engagement with local communities, including connectivity, because it is vital. If the noble Lord goes and talks with the many mayors of the great cities of the north, he will discover the intensity of that discussion and engagement. He will also understand that they recognise that we should have the route narrowed down, I hope, by the end of this year and will be moving forward with legislation. There is no question about the timetable. If anything, Sir David Higgins is looking to get into the north earlier.

[Lord Brooke of Sutton Mandeville (Con)]

My Lords, is my noble friend aware that the noble Lord, Lord Brooke of Alverthorpe, and I are members of a family that has had its centre of gravity in west Yorkshire for at least the last four centuries, and will she take particular trouble to make sure that we are kept informed?

[Baroness Kramer]

My Lords, I am delighted to keep all interested Members of this House informed. It would indeed be a pleasure.

[Baroness Armstrong of Hill Top (Lab)]

Can the noble Baroness reassure us that the Government understand that there are great northern cities that lie north of Leeds? The north-east is never mentioned, yet the country depends on the north-east for manufacturing output. We have the only mainline railway on which running times have become slower over the past 10 years, not faster. It looks like the Government are trying to cut us off from the rest.

[Baroness Kramer]

My Lords, I absolutely have to counter such suggestions. First, the cities further north than the actual reach of HS2 will benefit from much higher speeds on the lines in that direction, many of them seeing 30 minutes to an hour shaved off journey times. The released capacity on the east coast main line, the west coast main line and the Midlands main lines will mean new services for many cities in the north. The work on connectivity with Rail North and others who represent local communities and other stakeholders is extensive in order to make sure that that connectivity is built in. It is a very exciting opportunity and I am sure that if the noble Baroness talks to the relevant communities, she will discover how excited and engaged they are.

[Lord Woolmer of Leeds (Lab)]

My Lords, does the Minister recognise that, when looked at from the north of England, HS2 is the top priority, linking as it could Newcastle, Leeds, Sheffield and Nottingham into Birmingham? It is potentially a very important route. Does the Minister further recognise that a lot of work is being done already by local authorities across the north of England, and in August they will produce their initial report on rail improvements and better connectivity between Liverpool and Leeds? Will the Minister ensure that the new investigation co-operates carefully and closely with the consultants who are working with the local authorities to make sure that effort is not duplicated and that returns to investigations are maximised?

[Baroness Kramer]

That is an absolutely pertinent point because, particularly when looking at connectivity in designing east-west routes, it is crucial to ensure that we maximise the benefits of HS2 and we are engaged with the communities that will be the most impacted. They know the situation best and we are all engaged in the same pursuit: that of expanding and rebuilding the economies of the Midlands and the north.

NHS: Ambulance Response Times

Monday 21st July 2014 Lords Chamber

Question

15:02

Asked by

[Lord Kennedy of Southwark]

To ask Her Majesty’s Government what assessment they have made of ambulance 999 response times.

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

My Lords, the NHS is responding to the majority of emergency calls in less than eight minutes, despite the number of these calls having increased by almost 14% from 2011-12 to 2013-14. The NHS has been supported to ensure that urgent and emergency care services are sustainable all year round and are ready for the pressures that winter can bring. Some £18 million will be allocated directly to ambulance service commissioners with a further £10 million to ensure sustained high performance.

[Lord Kennedy of Southwark (Lab)]

My Lords, FOI disclosures indicate that, since 2010, seven out of 10 of England’s ambulance trusts have increased their spending on commercial and voluntary ambulances. In London, spending has grown from £829,000 in 2010 to £9.2 million in 2013. Does the noble Earl share the concern of the president of the College of Emergency Medicine, Dr Clifford Mann, who has said that this is an issue which is causing deep concern and is,

“incredibly wasteful and potentially dangerous”?

[Earl Howe]

My Lords, patients have the right to a high-quality urgent and emergency care service whenever they call upon it, and we expect ambulance trusts to provide that. We are aware that independent or voluntary ambulance services may be used to support NHS ambulance services because they can help manage peaks in demand. Individual NHS ambulance services have got to ensure that 999 calls are attended by staff who are properly trained and adequately equipped. Indeed, since 2011 the providers of independent ambulance services have had to register with the Care Quality Commission, which monitors, inspects and regulates all services.

[Baroness Gardner of Parkes (Con)]

My Lords, is it not a shame that London has only one air ambulance, which is run by a charity, when Sydney and Paris have six and four respectively? Does the Minister not think that it would be to the advantage of patients to have more air ambulances operating in London, because at least they can deal with any major traffic problems?

[Earl Howe]

My Lords, we owe a great deal to the air ambulance services across the country, all of which, I think I am right in saying, are organised as charities. However, it is the case that in every instance the NHS pays for the clinical staff on those ambulances while the charity pays for the helicopter and the pilot. That is the balance we have struck and successive Governments have taken the view that it is the most cost-effective model for the NHS. However, that is not to downplay the very important role that ambulances perform in our society.

[Baroness Hussein-Ece (LD)]

My Lords, will the Minister give an assurance that, when ambulances are called out for patients who are having prolonged epileptic seizures, there will be qualified paramedics in attendance and that we shall not go back to the situation we had of several tragic cases where paramedics were not in attendance and patients with prolonged epileptic seizures died before they got to hospital?

[Earl Howe]

My Lords, I am aware of a number of those tragic cases. It is, of course, up to each response team to decide on the configuration of personnel and the skill mix on each ambulance that goes out. That judgment often has to be taken quickly. Sometimes it is a difficult judgment and, tragically, it is not always the right judgment. However, I know that every ambulance service in the country is mindful of the need to reach patients in emergencies with the greatest possible speed and the right professional skills.

[Lord Hunt of Kings Heath (Lab)]

My Lords, can the noble Earl confirm that the average waiting time for the most urgent 999 calls has lengthened in all parts of the country on average in the past three years? What are the Government doing to improve ambulance performance, and particularly could he comment on the very poor performance of the East of England Ambulance Service?

[Earl Howe]

The noble Lord is right. Ambulance trusts are experiencing high demand and we realise that a handful of services have experienced difficulty. Broadly, we are taking action in the short term and in the medium to long term. In the short term, we are supporting trusts with operational resilience plans so that they are better equipped to manage peaks in demand and we are providing clinical commissioning groups with additional funding, as I mentioned in my original Answer. Over the longer term, the NHS England review led by Sir Bruce Keogh is considering whole-system change, incorporating ambulance services.

With regard to the east of England, I met the East of England Ambulance Service NHS Trust’s chief executive, Dr Anthony Marsh, on 8 July to discuss performance since his appointment in January, and he assured me that the trust is now in recovery stage. Having seen his detailed proposals, I accept that judgment.

[Lord Mawhinney (Con)]

My Lords, in his original Answer, my noble friend said that a majority of ambulances arrived in less than eight minutes. That majority could be 99% or 51%. Will my noble friend tell your Lordships slightly more precisely what the percentage is?

[Earl Howe]

My noble friend makes an important point. The standard for arriving in the most urgent cases is that the ambulance should do so in 75% of cases or more. In recent months, performance across the country has been slightly below that standard.

Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014

Monday 21st July 2014 Lords Chamber

Motion to Approve

15:08

Moved by

[Lord Popat]

That the draft order laid before the House on 23 June be approved.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 16 July.

Motion agreed.

Green Deal (Qualifying Energy Improvements) (Amendment) Order 2014

Monday 21st July 2014 Lords Chamber

Motion to Approve

15:08

Moved by

[Lord Gardiner of Kimble]

That the draft order laid before the House on 16 June be approved.

Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 16 July

Motion agreed.

Criminal Justice and Courts Bill

Monday 21st July 2014 Lords Chamber

Committee (2nd Day)

15:09

Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013–14, from the Joint Committee on Human Rights

Clause 25: Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over

Debate on whether Clause 25 should stand part of the Bill.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I oppose Clause 25 standing part of the Bill. The clause would make a custodial sentence compulsory in the case of a second offence of possession of a knife in a public place. The sentence would be a compulsory minimum of six months in prison for offenders over 18 and of four months’ detention in the case of 16 and 17 year-olds. The clause was introduced into the Bill in the House of Commons by an amendment moved from the Conservative Benches by my honourable friend Nick de Bois. It was not supported by the Government and, indeed, Conservative Ministers abstained on it. I rather hope that my noble friend and other Conservative Ministers will abstain in this House.

Our reasons for opposing this clause in the House of Commons and again in your Lordships’ House are fourfold. First, mandatory minimum sentences are wrong in principle in all but a few special cases, because they remove judicial discretion and fail to allow for individual circumstances. Secondly, the clause is unnecessary, because knife crime is already falling, and runs counter to the aim of rehabilitating offenders. Thirdly, the clause would risk doing real harm to those affected by it, because many who should not be in prison would be imprisoned, damaging large numbers of principally young lives. Finally, the clause would be discriminatory in its effect, even if that is not the intention of its promoters, and so would risk doing serious damage to community relations in this country.

My first reason is one of principle. Determining sentences is generally far better left to judges. Our judges in the criminal courts hear the evidence in individual cases and fully take into account all the facts, including the circumstances of the offence and of the offender, before passing sentences. Obliging judges to take a course that they would not otherwise take necessarily involves forcing them to impose a sentence which they would consider unjust.

We completely agree with those who support the clause that knife crime is extremely serious, that everything should be done to discourage it and that in very many cases, particularly when an offence is repeated, possession of a knife in public will warrant a sentence of imprisonment. In those cases, judges can and do impose custodial sentences. They can, indeed, be legitimately encouraged to pass custodial sentences in such cases in sentencing guidelines. However, if they decide not to pass a custodial sentence in a given case, that is because they regard one as unnecessary, unwarranted or unjust. If the clause is intended to have any practical effect—if it is more than pure posturing—that effect would be to oblige judges to pass a custodial sentence when they would not otherwise do so. There is absolutely no evidence that our judges get this wrong or that they are, in some way, a soft touch and fail to impose custodial sentences when the public interest or justice demands that they should do so. The clause would be an entirely unwarranted restriction on judicial discretion.

That leads to my second reason for opposing the clause, which is that it is unnecessary. Knife crime is falling. The Crime Survey for England and Wales indicates a continuing reduction in crime overall and in crimes of violence in particular, including knife crime. I would suggest that this is one of the significant successes of the Government, all the more remarkable for being achieved against the background of very difficult economic circumstances. The number of young people in custody has fallen to a record low. In May this year, there were fewer than 1,100 young offenders in custody under the age of 18—a fall of no less than 200 from a year ago. The number of 18 year-olds in custody also continues to fall. Parliament and professionals in the criminal justice system have been working very hard and successfully to reduce the numbers of young people in custody. This has been a continuing theme of this Government’s drive to push down crime: rehabilitation to reduce reoffending, and helping young offenders in particular to get away from crime and criminals and lead law-abiding and useful lives. This has been the very point of the rehabilitation revolution and was at the heart of the Offender Rehabilitation Act that we passed this year.

15:15

Against that background, and given the Secretary of State’s repeated statements of his commitment to rehabilitation, it was a shame to hear him say in relation to prison overcrowding:

“I make no apology for the fact that under this Government more people are going to prison, and they are going to prison for longer”.—[Official Report, Commons, 16/6/14; col. 843.]

If true, that is a matter for apology. I know that many in your Lordships’ House agree that rehabilitation is one of the main purposes of punishment and that rehabilitation is generally best achieved by a community sentence, unless a custodial sentence is unavoidable. This clause is calculated—even designed—to reverse that trend: to increase the numbers, particularly of young offenders, receiving custodial sentences, and increase the numbers therefore in custody at great cost to the public purse.

My third reason for opposing this clause is the damage it would do in individual cases. No doubt supporters of the clause will point to the exception which, they will claim, would avoid injustice. The exception granted would permit the court not to impose a custodial sentence if,

“the court is of the opinion there are particular circumstances which … (a) relate to the offence or to the offender, and (b) would make it unjust to do so in all the circumstances”.

However, I reiterate the point I made at Second Reading. If a “particular circumstances” exception is to be widely applied, then it makes a nonsense of the provision for mandatory sentences. If it is to be applied only rarely, then serious injustices will be frequent. The reality is that there are many perfectly ordinary circumstances—neither exceptional, nor even particular—when it would be unjust to impose a custodial sentence for a second offence of possessing a knife.

I add in parenthesis that one weakness of this proposed exception is that although this clause would prescribe a sanction only for repeat offences, the circumstances of the first offence, however minor or understandable in context it might have been, would be entirely irrelevant to the applicability of the exception, and therefore to the imposition of a compulsory prison sentence. Imagine a boy of 15 who carries a knife for a dare. Stupid and reprehensible such behaviour may be, but unfortunately there is nothing unusual about it.

Then imagine the same boy, just under two years later, now 17, approaching his A-level examinations and hoping to go to university. He carries a knife for his own protection and that of his girlfriend when they have been threatened. Again, that is a stupid and reprehensible thing to do, but again there is nothing unusual about it, so there is nothing particular about the circumstances of the offence. Nor is there anything unusual about an 18 year-old being on the brink of taking public examinations, so there is nothing particular about the circumstances of the offender either.

Then imagine that this boy is the son or grandson of a relative or friend. How could your Lordships defend to the parents of that boy the statutory requirement that the judge should send him to prison in a case in which, by definition, the judge would not have passed such a sentence in the exercise of his or her own judgment? If this clause were passed, to avoid imposing the compulsory custodial sentence in such a case the judge would effectively have to flout the will of Parliament and his judicial oath and find that these completely run-of-the-mill circumstances were particular circumstances, making this case so different from others as to require an exception to be made. I suggest that if this clause were enacted, it would cause significant numbers of young people serious and sometimes irreparable damage to their future prospects of further education, employment and useful and productive lives—when a judge would not have passed a custodial sentence.

My final reason for opposing the clause is that it would be discriminatory in its effect. If enacted, it would disproportionately affect young black men because they are disproportionately subjected to stop and search. The Equality and Human Rights Commission report in November 2013 found that in the year 2011-12 black men were six times more likely to be subjected to stop and search than white men. The commission rightly said that, used responsibly, stop-and-search powers are an important tool in the fight against crime and particularly useful in preventing people going out with knives and catching those who do. A great proportion of those caught in possession of knives are caught through stop and search. It follows that if this clause were enacted, the damage caused by the disproportionate use of stop and search would increase and more young black men would be sent to prison as a result. That in turn would risk causing ever increasing resentment and significant damage to community relations, particularly in our great cities.

We are not persuaded that there is any justification for the approach embodied in this clause beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime. I invite Members of your Lordships’ House not to yield to the temptation to look tough on crime by passing a measure that would actually do nothing whatever to reduce crime.

[Lord Paddick (LD)]

My Lords, like my noble friend Lord Marks, I also oppose this clause. The provisions for compulsory terms of imprisonment run contrary to all my professional experience as a police officer of over 30 years and my instincts as a Liberal Democrat. No doubt some of your Lordships might be more convinced by one of those categories of argument than the other. All I seek to do is ask your Lordships to consider that this provision may actually make us less rather than more safe.

At Second Reading, my noble friend the Minister offered but one reason to support this measure. He said:

“It sends out a strong signal that carrying a bladed weapon is serious and has serious consequences if you are caught for a second offence”.—[Official Report, 30/6/14; col. 1621.]

The question is: who will listen to that strong signal?

At Second Reading, I referred to the anecdote of the Commissioner of Police for the Metropolis, Sir Bernard Hogan-Howe, who is quoted as having visited HM Prison and Young Offender Institution Feltham, where young offenders apparently told him they no longer carry guns because there is a minimum term of five years’ imprisonment. However, a former police colleague carried out extensive academically overseen research into the attitude of offenders at Feltham and his conclusions were that the overwhelming majority of offenders rarely thought about the consequences of their crimes before they acted; they had no intention of getting caught, so the legal penalty was irrelevant.

To take a different example, how many of the millions of young people who take drugs every week in this country make their choice on the basis of what category the drug is in and therefore what the likely penalty is before deciding which drug to take?

Even if the Commissioner managed to find some who thought differently, there is a world of difference between a handgun—where there is no lawful reason for carrying one in the street—and a knife, where the carrier can give many innocent explanations to the police officer who stops him. There is also a world of difference between a minimum of five years’ imprisonment and the four months or six months proposed in this clause.

I have worked in parts of London where knife crime is prevalent. I was a sergeant and a chief inspector and a police commander in Lambeth. I was also the chair of trustees of a charity that was dedicated to diverting young people in Lambeth in south London away from crime. I have talked with former offenders and those working alongside them and all my experience tells me that the best way to deal with knife carriers is to allow judges the discretion to hand down the appropriate sentence tailored to the individual, and not to tie their hands by forcing them to impose a term of imprisonment.

Like my noble friend Lord Marks I will address the issue of judicial discretion that is within the clause. My noble friend the Minister may say that there is judicial discretion, and it is worth repeating that new subsection (2B) states that the court must impose a term of imprisonment unless it is of the opinion that there are particular circumstances relating to the offence or to the offender that would make it unjust to do so in all the circumstances. With the greatest respect to the Minister, he cannot have it both ways. Either this sends the clear message that a second-time knife carrier will go to prison if caught or it sends a mixed message that you may go to prison, depending on the circumstances. If it is the latter, other than partisan political point-scoring and the attention-grabbing and misleading headline, “Compulsory Prison for Knife Carriers”, what is the point of this clause?

Short-term imprisonment does not work. It delivers the worst of both worlds—taking offenders out of society and making it more difficult for them to maintain social ties and employment, while not allowing them to benefit from any kind of education, training or rehabilitation regime during their short time in prison. Fifty-nine per cent of those in prison for less than 12 months reoffend within a year of release. In June, Her Majesty’s Chief Inspector of Prisons, Nick Hardwick, reportedly said:

“Resources are now stretched very thinly ... there is a pretty clear choice for politicians and policy makers—reduce prison populations or increase prison budgets”.

Will the Minister—I also ask this of the party opposite—tell the House by how much the Government will need to increase prison budgets to cope with the increase in prison population that this provision will inevitably bring about?

For those who might say that a price cannot be placed on saving lives, my whole point is that this provision would do nothing of the kind. The courts already have the power, as my noble friend Lord Marks has said, to send those who deserve to go to prison for carrying a knife to prison—and to send them to prison for a long time. It is absolutely right that they should be able to do so.

A much better way to reduce knife carrying on our streets is to get ex-offenders—people who at-risk young people can relate to—into our schools, to tell young people, from their own experience, not to waste their lives and those of their potential victims by carrying a knife. With the greatest respect, they are far more likely to listen to them than to politicians and police officers about the sentence they will get in the unlikely event of their being caught.

We must increase the chances of knife-carriers getting caught. A much better way of reducing knife carrying on our streets is to encourage those within communities where the knife carriers live and operate to tell the police who they are, so that the police can target their stop-and-search operations on criminals. If these people know that passing such information will result in people being imprisoned without question, they will be even more reluctant to tell the police.

I served in inner London boroughs throughout my police career. Even as a senior officer I walked the streets. Last Monday was typical. When I left this House at 10.45 pm, I got the bus to Elephant and Castle and I walked home. If I believed that this provision would make people safer, I would have every personal incentive to support it and certainly would not oppose it. I do not support this clause and I urge noble Lords to oppose it as well.

15:30

[Lord Deben (Con)]

My Lords, I ask the Government to think carefully about this clause—and I do so because they have pushed me into the very unlikely position of finding it impossible to support this proposal. The reason I find it impossible is that we already have more people in prison than any comparable country in the world. When we had a discussion about that, Ministers said, “Ah well, judges deem it right to send people to prison”. I do not see how you can say that and then say that in circumstances of this kind, judges should be told that they have to send people to prison. That is the first point that I find very difficult to take.

The second point is that judges are in a position to make proper decisions about very vulnerable young people. When I had a young persons’ prison in my constituency, to go there was one of the most depressing moments of the month because you met all sorts of young men who could so easily have been your own children, if they had not been brought up in circumstances of such horror and in such appalling situations that you were surprised that anybody could have turned out other than criminal. You cannot excuse people by their background or environment but you have to make your judgments on punishment with a full understanding of the circumstances and likely effects of the punishment that you make.

The third reason is this. If you can think of a way most likely to ensure that someone who has broken the law will continue to do so, a short prison sentence must be it. It is manifestly true that it does not work; it is even more true that it normally can make things worse. If other countries manage to have a different system without having some enormous increase in crime, the Government really have to think again. After all, if you walk in the streets of Paris or Berlin, or indeed in Dusseldorf or Lille, do you feel less safe because there are half as many people in prison? Of course you do not. They have found better ways of doing this. I am citing not Scandinavian countries but those countries with which we would normally compare ourselves.

There is a further reason, too, which is this. I hope that my noble friend the Minister will not be embarrassed by this but I do not like the way that this got into the Bill. It was not in the Bill originally; the Government did not think that it was the answer. What happened was that people outside, not known for their concern for young people or their concern for moderation and real facts, started a campaign to say that this was the answer. But that is the same campaign that we have had for years and years, which is: “Be tougher, lock up more people and really show which side you are on”.

I do not think that anyone could claim that I am on any side other than having the toughest belief in the rule of law and the most concern to protect people. However, I do not like it when the law is changed, or proposed to be changed, not by the sober reflection of those who have to carry the consequences but by the noisy statement of those who will move on to another campaign the moment that that one ceases to sell newspapers or gain support. That for me is the reason why this is intolerable. We must make our laws because we know that they are right and have thought about them; otherwise, we will go backwards in so many ways.

I end by saying to my noble friend that one of the things that characterises this Government—and, indeed, this moment in our history—is that we have become more understanding about things and less damagingly demonstrative about our attitude to other people. We have become more willing to say that there must be another way. As we are going to discuss the appalling situations created by those who think that the only way forward is to use force against others, we ought also to think about ourselves. We do not have this right. We have not made our whole punishment system work as well as those of many of our neighbours. Is not this the moment to say that we are not going to keep going down this route but are genuinely going to see whether we can learn more from other people and, having done so, change our system so that we can get the results we need without the knee-jerk reaction of “lock ’em up”?

[Lord Blair of Boughton (CB)]

My Lords, I strongly oppose the proposal that Clause 25 should not stand part of the Bill and it appears that commissioners may think in the same way, according to the noble Lord, Lord Paddick. Since the early 19th century, it has been the received wisdom that people are deterred from committing crime by the likelihood of detection rather than the length of sentence. I agree with that in general.

As a former Metropolitan Police commissioner and deputy-commissioner, I have experience of two categories of crime that proved the rule by being exceptions to it. The first is the one that Sir Bernard Hogan-Howe has apparently already mentioned: that is, the reduction in shootings that occurred in London after a five-year mandatory sentence was announced. That occurred because communication among the criminal fraternity is good. It is particularly good among the women of that group, who stopped carrying the guns in their handbags. Therefore the guns are not as much in evidence as they were.

I imagine that many noble Lords will recall my second example, which was a response to the marked rise in fatal and near fatal stabbings of teenagers in London a few years ago. The most important factor in reducing that was the issue of a practice direction from the noble and learned Lord, Lord Judge—I do not think that he is in his place—when he was Lord Chief Justice, that a first offence of unlawful possession of a knife should normally be considered for a custodial sentence. Knife crime started to fall and I believe that is because people knew that that message was passing around the streets of London.

I believe that, with knife crime falling, a custodial sentence for a second offence of carrying these weapons makes much better sense than for a first offence. The reason for that is it provides people with a chance. A sentencer now sentencing someone for a first offence can give them a very simple message which is very easy to understand—“Don’t do this again or you will go to jail”. Normally, I am in favour of leaving judges and magistrates free to exercise their judgment but this crime has an additional catastrophe attached to it. It ruins the life not only of the person who is seriously injured or killed but also the life of the offender in those circumstances.

I had to talk to the families of people who had been murdered in these circumstances. We have not heard enough from those who oppose the clause or, with respect, from the noble Lord, Lord Deben, about the victims of knife crime. Knife crime can change lives catastrophically. One of the awful things about that period when teenagers were killing each other in London was how often there was only one knife wound. A single blow had caused these deaths, as if these young people had no idea that that action would kill someone. It seems to me sensible to pass a message to stop the thing happening that will then allow someone to be murdered. One cannot murder someone very easily if one does not have a knife or a gun. I strongly oppose the proposal.

[Lord Mackay of Clashfern (Con)]

My Lords, judicial discretion is a very important aspect of the judicial process. However, embedded in judicial discretion is the fact that you cannot know in advance with precision how that discretion will be exercised. If you have studied the sentencing guidelines you may know roughly the areas in which the discretion will operate, but having a fixed penalty as a minimum means that it is known in advance that unless there is a particular circumstance to take you out of the situation a fixed penalty will happen. You know that in advance.

I have heard what has been said in support of this clause and also the other point of view from a very experienced police officer. I know a case of knife-carrying that was enough to kill somebody and give the carrier a life sentence. I found that a very traumatic experience. Telling people in advance what the sentence will be is an extremely important deterrent. It has been done in various parts of our judicial system. Therefore I do not regard the principle on which this is based as one that can apply in all circumstances. In a second offence for knife crime it is reasonable for a statement to be made about precisely what the sentence as a minimum will be unless there are circumstances that take it out of the ordinary.

My noble friend Lord Marks has commented on the nature of the exception. If he wishes to improve on that, there is the option of an amendment to that effect. So far, none is forthcoming. I shall take it that the exception, in so far as it is stated, is a reasonable exception in the circumstances of this case. Of course the idea is not to put more people in prison; it is to prevent people from going to prison by knowing that if they do this particular thing for a second time that is where they will go. On the whole, one hopes that that has a deterrent effect.

Information about this will quickly get around among the people who are affected by it. One can understand the idea of discrimination but of course it depends on the way in which the power to stop and search is used. As far as I am concerned, this power must be used in accordance with the best discretion of the police officers on the street. However this amendment has come about—it was made in the other place—the Government have decided in the light of their experience and of their policy as a whole that it should be adhered to and given effect.

15:44

[Baroness Mallalieu (Lab)]

My Lords, I intervene briefly. I have deep unease about this clause for a number of reasons that have already been given by the noble Lords, Lord Marks and Lord Deben. I hope that the Minister will be able to help me further.

I do not like mandatory sentences. As someone who has practised in the courts for 40 years on both sides, I have seen a great many cases involving knives. I have seen the consequences of them and I have dealt with many people whose lives have been devastated by their use. However, mandatory sentences lead inevitably, in a very small number of cases perhaps, to injustice. There must always be a proper discretion for the judge who hears the facts and sees the people involved to make the right decision on sentencing. I do not like gesture politics either, and sometimes as a result of pressure we are led to amendments in this House which are not going to be the right route to getting the best result.

I should be grateful if the Minister could help us about the discretion currently contained in the clause. The noble Lord, Lord Marks, interpreted the word “particular” in Clause 25(2B) as something exceptional. I would like to know whether he is right. Could “particular circumstances” of the first offence not be the circumstances which relate to the offender and therefore allow judicial discretion to be exercised? It would seem wholly wrong if the circumstances of the first offence were relatively trivial. I can think of an occasion when someone came to see me in this House wearing a Barbour mac which he had worn on the farm in which was a knife that was discovered as he tried to come into the House. He had no idea that he had the knife with him, which he used for cutting straw bale string. It is incredibly easy for somebody to be carrying a knife without appreciating the first time what has happened. I take what the noble and learned Lord said about the second occasion, but although we often speak in this House about sending messages, I doubt very much whether many 16 to 18 year-olds are sitting reading Hansard and taking them in. They may get around in the street. Can a judge really not take into account the trivial circumstances of the first offence when he has to decide whether to impose a custodial sentence? I agree with what the noble Lord, Lord Deben, said about the complete lack of help that a custodial sentence almost inevitably gives to a young person.

[Baroness Butler-Sloss (CB)]

My Lords, I deplore the carrying of knives, as do all of us in this House. I shall make two short points to support the noble Lord, Lord Marks. First, I am sad to disagree with the noble and learned Lord, Lord Mackay of Clashfern, but my experience of teenagers is that those between 16 and 18 would probably not take the slightest notice of a deterrent, as has already been said. Those who are slightly older—over 18—might, but from my experience as a family judge, I doubt that this would be a deterrent to 16 or 17 year-olds.

Secondly, I sat occasionally in crime, and was not very good at it, but I find it quite extraordinary that successive Governments seem totally unable to trust the judiciary to come to the right conclusion. We know from previous speakers that judges already have all the powers they need to deal with a second offence, to deal with it strongly and to put people away for much more than six months. For those two reasons, I very much support the noble Lord, Lord Marks.

[Lord Hope of Craighead (CB)]

My Lords, if I may, I will add a few words in support of the points made by the noble and learned Lord, Lord Mackay of Clashfern, and my noble friend Lord Blair, based on my experience as the senior judge in Scotland, the Lord Justice General. When I held that office, which I held for seven years, there was an upsurge, as happens from time to time, in the carrying of knives, particularly by young people. As the noble and learned Lord, Lord Mackay, has told us, there are cases where people who carry knives use them in an impulsive reaction to something said or done, resulting in horrific injuries. I spent four years as a prosecutor dealing with these cases.

Sitting as Lord Justice General, one of my responsibilities was to preside over the appeal court dealing with appeals against sentence in cases that had come up through the courts—sometimes through the sheriff court or sometimes through the High Court—where people had been sentenced for carrying knives. We thought that part of our duty in disposing of those appeals was to send out a message, because of the deterrent effect that we hoped that it would have. It was very much about deterrence; sometimes one added much more colourful wording to strengthen the deterrence. We might be quite lenient in the decision, but we would couch it in words that were designed to have an effect and draw the media’s attention, in the hope that they would report what we said and carry the message that the carrying of knives would be likely to lead to a custodial sentence.

Indeed, I remember going on television at the request of the police, who were concerned about the issue, using my authority as Lord Justice General to make that very point. I said that those who went out into the street carrying knives ran the risk that they might be prosecuted and that there was a risk that they might find themselves subjected to a custodial sentence. Of course, I was not cutting across the independence of the judiciary or the discretion that we all exercise; our concern was to get the message across. There is a force in doing that in statute, provided that it is appropriately worded.

I have looked at the wording of this particular clause, which contains fairly strong language, pointing in the direction of judicial discretion. As the noble Lord, Lord Marks, has said, I am concerned about bringing into consideration the first offence, which could be extremely important. But one must not underestimate the power of the deterrent effect coming through the message from a measure of this kind. I was not sure that, as judges sitting in the appeal court, by saying the things that we so often did, we were really getting the message across, which was why I was prepared to make a statement about it on television. I was not sure whether that in itself got the message across, either. But putting across the message and deterring people from getting involved in these things, with dreadful consequences for them and their victims, is immensely important. There is great force in the point made by the noble Lord, Lord Blair, to that effect.

[Lord Purvis of Tweed (LD)]

I intervene on the noble and learned Lord with a degree of trepidation. He rightly gives the experience of Scotland from a most senior position. While this was not at the same time, I served on the Justice Committee in the Scottish Parliament, which took a conscious decision to reject the course being taken with this amendment. Instead, we took the approach of putting more resources into the violence reduction unit in the former Strathclyde police force, and working with those charities for gangs. We found that to be the most effective way in which to communicate the message, rather than an approach of amending legislation, which we were informed by all of those experienced on the ground in those communities would not be the most effective way. I may agree with the noble and learned Lord, but we come to a different conclusion. Would he reflect on that before he concludes his remarks?

[Lord Hope of Craighead]

I am very grateful to the noble Lord for raising that point. Of course, one supports everything that could be done by people on the ground, and there are all sorts of things that could be done. I was trying to get across the fact that I was approached by the police to use my authority, as the senior judge in Scotland, to make the announcement that I did on television in the terms in which I made it.

There is a choice as to whether one trusts the energy and resources of those on the ground to carry the message across, coupled with such statements as the judiciary can make, or whether one has to resort to statute. The point that I am making is that deterrence is crucial in this field and that the more one can deter the carrying of knives and thereby the incidents that follow from the carrying of knives, the better.

[Lord Woolf (CB)]

My Lords, it is with some considerable hesitation that I speak now, with two views having been expressed—one by those who support this measure and one by those opposing it. It is only right, however, having heard what my noble and learned Scottish friends have had to say about this that I should mention my experience. I have the greatest respect for the noble and learned Lord, Lord Mackay, whom I was glad to serve under when he was Lord Chancellor, and for the noble and learned Lord, Lord Hope, as well, who is a colleague in the House. With great respect to them, though, neither of them, if I may say so with all due deference, were judges who were sentencing in courts at first instance.

[Lord Mackay of Clashfern]

That is not correct. The case that I referred to was at first instance in a trial in the High Court in Glasgow.

[Lord Woolf]

I stand corrected on that but again, if I may say so, their experience was not, because of the way in which their careers developed, in accord with mine. I sat as a judge in the higher courts at every level, first as a High Court judge, then as a Court of Appeal judge, then as a House of Lords judge and finally as the Lord Chief Justice, in relation to these matters.

The one thing that I want to emphasise is that the right way of sentencing in the ordinary way is not for Parliament to lay down what the fixed sentence should be; rather, it is for Parliament to set out the framework and for the judges, within that framework, to deal with matters specifically. Four-month and six-month fixed sentences amount to tinkering. To think that that sort of sentence is going to be of any significance—again, I speak with great respect for the noble Lord, Lord Blair, whom I know and respect—is not right. Four-month and six-month sentences, as has been said already, just do not work as far as either the authorities or offenders are concerned. If someone is the sort of person that this provision is aimed at, who caused someone’s death by the carrying of a knife, I am afraid I cannot begin to believe that their conduct will be influenced by this. That is contrary to the experience of the great majority of judges and, as I have said, amounts to tinkering. That is what we should not do.

We have powers in the court to deal with these matters. Both the noble Lord, Lord Blair, and the noble and learned Lord, Lord Hope, put their finger on the point when they said that the courts can send messages in the same way that Parliament can send messages. However, there are situations where it is appropriate for Parliament to send a message, but there are situations where it is much better done otherwise, although I do not say that it has to be the judiciary. We have heard in this field that both the noble and learned Lord, Lord Hope, and Lord Justice Judge sent messages and were indicating. Although it is right, as the noble and learned Lord, Lord Mackay, says, that if you have a fixed sentence there is more of a likelihood that someone might know what the fixed sentence is, it is also more likely that injustice will be caused by the fixed sentence.

When we legislate, we have to hold the balance between doing justice and ensuring that people are safe so that we do not get into a situation where a court finds that its hands are tied and it is forced to give a sentence that it would prefer not to. The provision that is a safeguard in this case is based on one that is well known to courts south of the border and, I suspect, north of the border. The difficulty with this provision has already been indicated by the noble Lord, Lord Mallalieu. What does it mean? It is a matter that I do not mind saying—[Interruption.] I am sorry, the noble Baroness, Lady Mallalieu. I apologise to the noble Baroness and I know that she will forgive me for that discourtesy.

The position is this: Lord Bingham took one view of what a provision of this sort made, and I took a different view. I said, and you can find this in the Law Lord reports, that the only way you can make sense of this provision is to say that the right way of interpreting it is that a judge’s hands are not tied if that would cause injustice, because it is obviously not the intention of Parliament that judges should impose an unjust sentence. Lord Bingham said that that made this provision a non-entity. I realise that and I agree, and if that is so then we are better off without it.

15:59

[Baroness Howells of St Davids (Lab)]

My Lords, I had not meant to take part in this debate; I am neither a lawyer nor a judge. However, at one time in this Chamber today I felt I was being given the strong impression that only black boys carried knives in this country. I want to put on record that this is not so. In cases with which I have been involved in Greenwich, young men were killed with knives not because they had committed a crime but because they were black. I should like that to be put on the record.

[Baroness Berridge (Con)]

My Lords, I raised this matter at Second Reading and draw to the Committee’s attention the fact that the amendment was tabled by Nick de Bois, an Enfield MP, strongly supported by David Burrowes, another MP for the Enfield borough. It is a borough not unfamiliar with knife crime, which in some cases involves fatality. These are MPs who have direct experience and I hope that that ameliorates the suggestion that this provision is just a knee-jerk reaction. Knife crime has been an issue for Enfield for some time. It has also been drawn to the House’s attention by the Lord Chief Justice that we have a problem. Whether this is the correct solution is another matter but we have a problem with the carrying of knives by young people that is often seen as some kind of status symbol.

I remind your Lordships of what perhaps seems an obvious point. There have to be two convictions before this power comes into play. I have read of situations in the media in which people have carried penknives. One would have to possess these weapons,

“without lawful authority or reasonable excuse”.

This does not apply to anyone accidentally having a knife left over from pruning the roses or working on the farm at the weekend. These are people who are carrying knives without being able to provide an excuse. This power is supported by not only the former commissioner but the current Metropolitan Police Commissioner, who said:

“Where we are getting gang members or young people carrying knives and there is no excuse, then this is a serious matter for me”.

So we also have the Metropolitan Police saying that it wants additional powers in relation to knife crime. I have looked at the discretion given, and this is not a mandatory provision that necessarily would lead to injustice.

I should really like to highlight the issue of discrimination, and I strongly disagree with my noble friends on this. I raised this matter way back, in my maiden speech. There sometimes seems to be a disproportionately low response to victims of violent crime when they are not white. One must not forget that, in this situation, the figures from when I checked—I thank the Library—show that one is twice as likely in London to be a victim of knife crime if you are black. From my experience of speaking to community leaders, they are extremely concerned about the effect of this on their own communities. They are the victims of this, so it is flawed to suggest that the provision is discriminatory because of stop-and-search powers. I accept that elements of our criminal justice system have been discriminatory over the years and one can point to the discussion in the other place involving the Home Secretary, who has brought in a review of stop and search. Her Majesty’s Inspectorate of Constabulary has looked at this, and the Home Secretary had the support of Diane Abbott, of all people. We had grasped a nettle that had not been grasped for a long time.

This Government have also rid the ethnic-minority communities of the injustice of a DNA database that held innocent people’s DNA. These issues have been addressed and it ignores the effect on victims in minority communities if we refer only to the perpetrators.

[Baroness Walmsley (LD)]

My Lords, I had not intended to speak in this debate and will do so briefly. I have listened carefully to those who oppose my noble friend Lord Marks, and I am afraid that I am not convinced by them for two reasons. First, the cases that they cite are ones in which the judge would almost certainly have sent the person to prison anyway. When somebody carries a knife with serious intent and uses it, that is when people go to prison. We do not need the clause for that reason.

The other point has not been mentioned at all. The clause is supposed to be a deterrent, mainly for young people, to prevent them getting involved in carrying knives in the first place, which is a very laudable objective. However, let us remember the development of children’s brains. The majority of the development of children’s brains happens between birth and three years of age, but there is a boost during the teenage years. That is when risk taking comes in. If noble Lords consider that, they will realise that a deterrent such as this very small prison sentence—I quite agree with the noble and learned Lord, Lord Woolf, that it will do nothing but harm—will certainly not deter someone whose brain is telling them, “Now you can take risks, and you should”.

[The Earl of Listowel (CB)]

My Lords, I ask the Minister to clarify one issue, and ask for help from my noble friend Lord Blair on another. The first issue concerns children in care. As the Minister will be aware, a disproportionate number of children in care are in custody: more than half the boys and just under half the girls in custody come from the care system. I would be interested in clarification about any exception under the proposal that will look at the backgrounds of young people, particularly if they come from a care background. I imagine most of your Lordships will be aware that 60% of children originally come into care because they have been abused and a further 10% because their family has broken down. As the noble Lord, Lord Deben, described, these are children who are very damaged and sometimes troubling to others as well.

When we discussed mobile phone crime seven or eight years ago the law was strengthened because of concerns at that period. I remember a case where a 15 or 16 year-old boy, on his first day at a children’s home, joined a group of people he did not know. One of that group stole a phone. The judge was obliged to be tough with him and sentenced him to custody. There was no suitable secure local authority children’s home for him. I think he was placed in a young offender institution and he hanged himself. One must also remember that these children are more vulnerable to knife crime. It is of course a very finely judged argument.

My question to my noble friend Lord Blair concerns his experience, which was most interesting. His first example concerned women taking guns out of their handbags, so it was an older group. What was the experience of 16 or 17 year-olds in the second example he gave, if he is aware of that? I share the concern of my noble and learned friend Lady Butler-Sloss that 16 and 17 year-olds may not be able to understand the weight of punishment that may await them if they continue—although they will have committed a first offence, so they probably should be aware.

[Baroness Howarth of Breckland (CB)]

My Lords, of course it is wrong for a young person to carry a knife. Of course we want to remove and reduce the number of young people in school with knives. Of course we want to sympathise with the victims. I am a mere social worker, so I have had to work at both ends of this spectrum. However, what we are talking about is what the real deterrent would be, not whether we are aiming to reduce the use and holding of knives.

I agree with noble Lords who have spoken about young people’s development; we think of that very little these days in our policy. Based on my experience, the clause is very unlikely to deter them from carrying knives. What happens is that young people find themselves in a gang at the age of 14. The rest of the gang are aged 16 to 18. The clever thing is to carry a knife. It may be that the 16 to 18 year-olds are not carrying the knives, but the young person is encouraged to take the risk. On estates they are terrified that their parents—usually their single mum—are going to be harmed, so they carry a knife. Of course it is wrong, but the deterrents will not work if these young people are going to be put away.

The All-Party Parliamentary Group for Children has just been looking at the relationship between children and young people and the police. A number of the young witnesses were pretty tough and had been in extraordinary trouble. It became clear that what made a difference was those young people having a police mentor. As the result of the police going into their schools and talking to them, they joined the police cadets or some other organisation, and that was far more likely to deter them from the path of any sort of criminality, particularly violence. If young people begin to understand, through relationships, what the outcome of their actions will be, they will be much more likely to change. Therefore, I oppose the clause and support the noble Lord, Lord Marks.

[Baroness Buscombe (Con)]

My Lords, I rise to speak with some trepidation because I have found this debate really rather depressing. I speak as a member of the Joint Committee on Human Rights. I am not speaking as someone who might have experience as a social worker or as a member of the judiciary. I am a lawyer but I am also a mother and perhaps, through that experience, in addition to my experience as a lawyer and as someone who has spent many years in your Lordships’ House, I might understand the thinking of those who carry knives. We should remind ourselves that we are talking about:

“Possessing an offensive weapon or bladed article in public or on school premises: sentencing for second offences for those aged 16 or over”.

I shall be brief because most of what I want to say has been said very eloquently by my noble and learned friend Lord Mackay and my noble friend Lady Berridge.

My support for this clause focuses on two points. First, it is true that the level of knife crime is falling and that has to be a good thing but, through our ability as a legislature, let us give all the support we can to those who work to support that trend to do the right thing—that is, the police, teachers, governors, the Government, the Ending Gang and Youth Violence programme led by the Home Office, and those very young people themselves. Let us not underestimate the ability, the intelligence and, in some ways, the smartness of those who unfortunately are gang members. Let us give them every piece of ammunition to stop carrying knives in public places and in the schoolyard. Let us think about their friends who are terrified every time they go into the playground because they do not know who, among their friends, is carrying a knife.

My second point concerns deterrence, and it has pleased me to some extent that we have at least heard that word. I was beginning to think that there was no longer any such thing in people’s minds and that people were saying, “Well, it won’t work, so let’s not bother”. We have been allowing these gangs to grow in number in all parts of this country. Let us do all we can to see whether just one additional strengthening of the law will lead to some small deterrent somewhere in the minds of these young people, giving them the strength to say, “You know what, it’s not worth it. Even though it might look cool, it ain’t cool, because I don’t want to go to prison”. Call me naive but I can tell your Lordships that, in a sense, bringing up children is as good an experience as sitting in a court of law and receiving the problem after the event. I am saying that we have the ability in your Lordships’ House to focus on prevention, not the after-effects. So please can we say to all those children out there, “Be strong and we will show you that it’s just not cool to carry knives”?

16:14

[Lord Foulkes of Cumnock (Lab)]

My Lords, I have listened carefully to all the speeches and I must say I find the arguments on both sides very powerful—some very powerful, convincing arguments have been put forward. It is a great pity and does a disservice to this House that an artificial division is being created on such an important matter merely because the Liberal Democrats want to have a conscious decoupling from the Conservatives in the run-up to the general election.

[Baroness Hussein-Ece (LD)]

My Lords, I, too, was not going to take part but the previous contribution was not worthy. This is a very serious subject. I am the mother of a son who was mugged when he was a teenager. He came to the brink when he felt so scared that he wanted to carry a knife but luckily he did not—not to my knowledge, anyway. Young people, particularly young men, are more likely to be victims of crime and we need to have faith in the judicial system—as we have heard from noble and learned Lords this afternoon. We need to allow judges to take and judge each matter on its merits, case by case, and must not dictate from this Chamber and from Parliament.

We heard earlier from the noble Baroness, Lady Howells, about the issue of black youth. The argument was—with respect to the noble Baroness, Lady Berridge, whom I respect enormously—that they are disproportionately affected as they tend to be stopped and searched more. That means that others who may be carrying knives are unlikely to be stopped. That is a discrepancy that needs to be taken into account.

The idea that a 14 or 15 year-old boy who feels scared and vulnerable because he may not be in one gang or another but feels the need, however wrong it is—of course it is wrong, but there is no rationality here—to go out with a knife should then have his life ruined as a result of making one mistake is not something that we should support. We should leave it to the courts. We should be listening a little more to young people, which I do not think we are, about which things work and which do not. At a time when knife crime is falling I cannot for the life of me see why we should want to impose this mandatory obligation on the courts.

[Lord Richard (Lab)]

My Lords, I shall be very brief. What I object to in the Government’s proposal is the automaticity built into it. Irrespective of the circumstances of the particular offence or of the offender, there is an automatic assumption now that a second offence will produce a sentence of imprisonment. I do not like that—I think it is wrong. I do not think that is the way in which our courts should behave. Indeed, in 99.9% of the cases that is not the way in which our courts do behave. It is essentially a matter for judges to decide what is the appropriate penalty given all the facts and the circumstances of the case. Therefore, I ask myself, “If that is wrong, why are the Government doing this?”. I suppose the answer is that they want to send a message. What message do they want to send? It is a mixture, I suppose—part politics and part deterrent. I will leave the politics out of it because one of the interesting things this afternoon has been how apolitical this discussion has been. Therefore, let us just look at the deterrent argument. Does it hold water?

My noble friend Lady Mallalieu said that she practised at the criminal courts for 40-odd years. I cannot say that I practised with quite the continuity she did over the past 40 or 50 years but I have done the same. I have to say to the House—as she did—that the idea is fanciful that criminals solemnly sit down and say to themselves, “Well, if we are going to get X years we will commit this crime and if we are caught and we are going to get Y years then we won’t”. That is not how it works. The professional criminal does not think in that way and certainly the youth who may be carrying a knife as part of some kind of teenage bravado is certainly not going to think in those terms. I do not accept the deterrent argument.

So do we want to send a message? If we do want to send a message—a united one, I hope—that we thoroughly disapprove of knife crime and that people who carry knives should be properly punished, and in some cases severely punished, that is a good message and we should send it. But should we send it via statute, in an automatic way? It says, “If you do that, this is bound to happen to you.” I think not. It is totally the wrong approach. Judges have the power to deal with these cases and to send their message. If judges impose heavier sentences for second offences of knife crime, that is a matter for them, and some may hope that perhaps they will. It should not be a mandatory message of the sort that this clause would impose. It destroys judicial discretion and alters the nature of the criminal process. In almost every other area of the criminal justice system of this country we do not have mandatory sentences and I hope that we do not go down that particular road in this area.

[Baroness Manzoor (LD)]

My Lords, I, too, had not intended to speak, but I feel moved to do so on this occasion. We have judges for a reason, and if we set a precedent in relation to this particular issue, I think that we will put ourselves on a slippery path of setting other mandatory sentences in the future.

[Baroness Scotland of Asthal (Lab)]

My Lords, I, too, was not going to add my voice to this debate, but I feel compelled to do so for two reasons. The first is because this is an issue which has been troubling the House for quite some time and we have had a number of debates about it over the years. There is an issue about whether we believe that judges, when they issue sentencing guidelines, are able to do that which a number of Members of this House want in terms of deterrence. A judge’s guideline which indicates that for a second offence the expectation will be imprisonment does have a profound effect.

Secondly, I refer to the period of imprisonment, which is to be four to six months. Those of us who have been burdened with the joy of helping to deliver the criminal justice system know that a period of imprisonment of four to six months is the least effective term there is. Very little opportunity arises in which to do a needs-based assessment with the offender, to do a skills analysis, and then to be able to ascertain how best to intervene and interrupt the pattern of criminality, if one has already been established. If we are thinking about the efficacy of a sentence, this, I must respectfully say to the Committee, seems to be the least efficacious. I would hope that we can trust the judgment of our judges and invite them, if there is not now a strong guideline in relation to sentencing, to provide us with one.

[Lord Deben]

Will the noble and learned Baroness confirm for the Committee that neither she nor I have any intention of supporting a Liberal Democrat plot on this subject?

[Baroness Scotland of Asthal]

My Lords, I can assure the Committee that this has been a sober debate on the issues and that it is clear that there is no unanimity of view on any Bench. I believe that the House of Lords is demonstrating its independence and doing what it does best, which is to argue and disagree, and then, it is hoped, to come to a consensus.

[Lord Macdonald of River Glaven (LD)]

My Lords, amen to that. Like the last several speakers, I had not intended to intervene in the debate—this could go on all night, I suppose—but I want to make two points. First, it was my experience, not only as chief prosecutor but also over very many years of practising criminal law, that sentences of between four and six months are not just pointless, as many speakers have indicated, they are positively damaging. Young people who are sent into young offender institutions for four to six months do not come out with nothing, they come out with worse than nothing. I have always thought that it was a preposterous policy to send young people into incarceration for such periods, and yet that is precisely what this Bill mandates, and in that sense it will do serious damage.

The second issue is mandatory sentencing. We have a good example of a jurisdiction that has gone down the route of mandatory sentencing: the United States of America, which has well known federal sentencing guidelines. The prison population in the United States of America stands presently at 3 million.

[Lord Kennedy of Southwark (Lab)]

My Lords, when I make contributions to these debates, I am always conscious of a sense of nervousness because so many distinguished noble and learned Lords have contributed to the debate. I am not a lawyer: I come to the debate as a lay person. On these Benches, we are unable to support the noble Lord, Lord Marks of Henley-on-Thames, although we share his concerns about the effects of stop and search. We must have procedures in place to discourage the carrying and use of weapons. I am sure that the noble Lord, Lord Faulks, will confirm when he responds to the debate that he believes, as I do, that the Bill should allow for judicial discretion.

It is important that the Government deal with the issues that lead people, particularly young people, to commit these offences. I agree with the comments of the noble Lord, Lord Paddick, who talked about getting into schools. It is not enough to lock up young people who commit offences without dealing with the causes that lead them to do so. What will be provided to deal with the problems? Many noble Lords made that point about what actually happens to people who are in prison for short sentences.

I agree with the comments of the noble Lord, Lord Deben, about how this provision got into the Bill in the first place in the Commons. It came in very late. That is regrettable. I also agree with the comments of the noble Lord, Lord Blair.

As my title indicates, I grew up in Southwark, on a council estate. I was very happy there. I do some work with a local charity working with kids on council estates all over the borough and the neighbouring borough of Lambeth. It seeks to get kids to play football together. You can hardly fight as you play football together. I recently spent some time with the charity. I was shocked and depressed by how much depended on the estate you lived on, so that when you walked home if you walked a certain route, you would have real problems. I met one young lad who lived on the Wyndham estate, right next to my primary school. The estate is 50 yards from the borough of Lambeth, but he told me that he never walked across into the borough because he was scared. He would never cross the road. I could not believe that—it is an absolutely shocking situation. We have to deal with those problems.

The charity organised a World Cup in Kennington Park, and it got different council estates and different nationalities playing football together—meeting up and playing football together rather than fighting each other in the evenings. That was fantastic. This chap does all this work, with virtually no funding from the local authority, from the Government or from anybody. It is fantastic. These are the sort of things that we would all agree need our full support.

My response to the noble Lord, Lord Paddick, is that I agree with the noble and learned Lord, Lord Mackay—this is about a deterrent which will keep people out of prison. We are not actually sending people to prison. I also agree with many of the comments of my noble friend Lady Howells and the noble Baroness, Lady Berridge. However, I am confused about the Liberal Democrat position. I mentioned in my speech at Second Reading that in the LASPO Act, the Liberal Democrats supported mandatory sentences for carrying a threatening or offensive weapon. The question was raised recently in the Commons and an amendment agreed without a Division. There is now an offence of carrying an offensive weapon in public with a mandatory maximum sentence of four years. I find that a bit odd in terms of what comments I have heard and taken note of from the Liberal Democrat Benches.

16:30

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

My Lords, Clause 25 would put in place a minimum custodial sentence of six months’ imprisonment for adults and a four-month detention and training order for 16 and 17 year-olds where an offender has committed a second or subsequent offence of possession of a knife or offensive weapon, unless there are particular circumstances that would make it unjust to do so. The clause also provides for a previous conviction of threatening with a knife or offensive weapon to count as a first strike.

Clause 25 was passed into the Bill in the other place and is now being considered by your Lordships’ Committee. The coalition Government are fully committed to ensuring that the public are protected. However, policy agreement has not been reached on this clause, and so it will be for the whole Committee to decide the issue. In these circumstances, noble Lords will understand why I am unable to answer many of the questions about the proper construction of the relevant clause, although I think I can simply draw the attention of those who have not had a chance to study it in detail to the fact that the initial offence has to be,

“without lawful authority or reasonable excuse”.

Then discretion is given with the words,

“unless the court is of the opinion that there are particular circumstances which … (a) relate to the offence or to the offender, and … (b) would make it unjust to do so in all the circumstances”.

The only other point that I make at this stage is that a number of noble Lords made the point that short sentences were not effective. I simply remind the Committee that only this year we passed an important Act which provided, for the first time, that those sentenced to less than 12 months would receive support in the community and support before leaving prison to assist in the resettlement process.

[Lord Foulkes of Cumnock]

I am completely confused as to who the Minister is speaking on behalf of. Is he speaking on behalf of the Government, the Conservative Party or the group of people who put the clause in the Bill? How are we therefore to treat his remarks? Is it to be a regular occurrence that we get Ministers coming to the Dispatch Box who are not speaking on behalf of this great coalition?

[Lord Faulks]

I hope it will not be a regular occurrence. I am endeavouring, in my short remarks, to assist the Committee as a whole on matters of construction but not to persuade it in one direction or another.

[Lord Richard]

Is the Minister speaking for the Government or is he merely putting this before the Committee, so to speak, as a debating issue, which we can all have a go at and then come to a conclusion on?

[Lord Faulks]

I am putting this before the Committee in circumstances in which, as I think the noble Lord well knows, a compromise has been reached.

[Lord Deben]

Does my noble friend agree that this is too important an issue for it to become a kind of joke measure for those who wish to make other party-political points? We ought to consider this seriously, in the way it ought to be considered, and make our own decisions according to the facts.

[Lord Faulks]

I agree with my noble friend that it should be considered seriously and a judgment exercised by the Committee as to what it thinks the appropriate response to this particular clause is.

[Lord Reid of Cardowan (Lab)]

I am grateful to the Minister. Whoever he is speaking on behalf of, he should regard me as a floating voter. I came in with my mind pretty well made up to support the clause, whoever’s it is—I was going to say it was the Government’s. However, I had the misfortune to sit next to my noble and learned friend Lady Scotland, who gave me an enlightened commentary to supplement everything that was being said and tried, as she did when she was my Minister in the Home Office, to soften my hard heart on this issue.

Subject to the response to one question asked by my noble and learned friend, I am still inclined to vote with whatever entity is in favour of the clause. I hope the Minister can answer the question and help me decide. What consideration was given to outlining this in sentencing guidelines, without the need to put it in the Bill? I am not suggesting for a minute that judges always follow sentencing guidelines. Indeed, the Committee may be amused to learn that when we put forward sentencing guidelines to diminish hugely the number of four and six-month sentences when we were bringing in indeterminate sentences at the other end, judges proved very reluctant not to send people to jail. It was suggested to me by the Lord Chief Justice at a meeting of the Criminal Justice Board that I should write and remind them of that. When I did, I was massacred in public for suggesting that judges may not need to send people to jail. I understand that they do not have to follow guidelines, but I hope the Minister has had time to consult his notes and to let us know whether, before going to the mandatory statutory sentence, such a course of action was considered, as my noble and learned friend asked.

[Lord Faulks]

Before the noble Lord’s intervention, I was going to conclude by saying that this is not a clause that could ultimately find its way to the statute book. If the vote results in the Bill remaining in its current form, the Government will bring back amendments to make various alterations—not to the effect or the substance, but to the detail—and in particular to make sure that the provision is consistent with the sentencing framework as a whole. There are also various other technical amendments that will have to be made.

[Lord Reid of Cardowan]

I am not a lawyer or a civil servant draftsman. Does that mean that if this clause is agreed to, the Government will come back with guidelines, rather than putting it into the Bill? Is that my understanding, or have I got even more confused? Perhaps the Minister would explain.

[Lord Faulks]

It is not a question of guidelines; there are a number of particular defects in the clause. For example, it would be necessary to fix the period for appealing a minimum sentence if a previous conviction upon which the minimum sentence is based is overturned. The period should be fixed at 28 days to ensure consistency. Furthermore, it is not clear in the current draft that the Attorney-General would be able to make a reference on the basis of a court’s failure to impose a minimum sentence, and the usual practice in relation to early guilty pleas for minimum sentences is a reduction of up to 20%. As currently drafted, the court would not be able to apply any discount for an early guilty plea. It is also necessary to add equivalent offences under UK and EU member state service laws to relevant previous convictions.

[Baroness Kennedy of The Shaws (Lab)]

If the Government have so many reservations about this clause, surely their position should be to oppose it. The Government’s position at this stage should be to say that they think the Committee should look closely at this clause because they are not happy with it. Surely that should be the Government’s position.

[Lord Faulks]

The Committee is looking carefully at the clause. I have endeavoured to assist with various questions to indicate that certain technical amendments would have to be made, which would not alter the fundamental purpose behind the clause, but would nevertheless make it more satisfactory.

[Lord Deben]

Would it help the Government if we voted this clause down? They could then produce a clause that was satisfactory and would listen to what the Committee had said.

[Lord Cormack (Con)]

Why have a vote at all? We are in Committee and the Bill will then be on Report. At that stage, the Government can tell us what sensible amendments they wish to move. Some of us have been whipped to come this afternoon—and I always treat Whips with great discernment—but what is the point in voting this afternoon?

[Lord Carlile of Berriew (LD)]

Can my noble friend elucidate for those Liberal Democrats who are unaccustomed to taking part in plots organised by the Chief Whip of the Liberal Democrats—I claim to be one of them—and answer the question of the noble Lord, Lord Reid? Why is this issue not better dealt with by sentencing guidelines, which can be changed from time to time to meet the circumstances that the courts have to face on a regular basis, rather than by using this clumsy statutory provision, which is not in a fit form to enact in any event?

[Lord Harris of Haringey (Lab)]

My Lords, I have listened to this debate for the last hour and a half and was almost looking forward to the Minister’s response. Some serious issues have been raised during the course of this debate which deserve an answer on behalf of the Government. As I understand the position—and I have got more rather than less confused as the afternoon has worn on—we are about to have put before us the Motion than the clause should stand part of the Bill.

If we were to agree with the noble Lord, Lord Marks, we would presumably vote not content. Presumably, too, the Government and possibly the Opposition have whipped all the noble Lords here to vote content—that we want the clause. Therefore, before we vote on the matter, it is really important that some of the issues that have been raised are addressed by your Lordships’ House with the authority of the Government saying what their responses are.

For example, one point that exercises me is the question of why it is thought that this might have a deterrent effect on young boys who act largely on impulse. I appreciate that the Government do not want—or the Minister does not, on behalf of whatever entity he is speaking—to express a firm view. However, he could share with the House the research work that no doubt different government departments have conducted on what constitutes a deterrent effect on young men and whether the clause, as drafted, conceivably delivers such an effect.

[The Earl of Listowel]

My Lords, I apologise for prolonging this still further. Following the noble Lord, Lord Harris of Haringey, I was grateful to the Minister for his response but the concern about the criminalisation of young people in care is very serious. It is one of the two main agenda items for the new chair of the Youth Justice Board, the noble Lord, Lord McNally. He is very concerned particularly that so many young people from children’s homes enter the criminal justice system. It would be helpful as background to the Bill to have some warning as to what if any impact this clause, if accepted, would have on the number of young people from care coming into custody.

[Lord Faulks]

There were quite a number of interventions. I will endeavour, very briefly, to say what I can within the terms that I speak today. On the question of sentencing guidelines, they are of course changed from time to time. It is a matter for the House to consider whether sentencing guidelines are an appropriate way to deal with this or whether it is more appropriate to use the clause as it currently appears in the Bill—whether that is called sending out a message, providing a deterrent or whatever construction one places upon that particular clause.

As to all the other matters, there is no question of a Liberal Democrat plot. I readily concede that this is an unusual situation. However, I am simply not in a position to say more than I have in answer to the various questions raised, except to say this: the issue for the House is fairly before the House, as brought by my noble friend Lord Marks, and it is whether the clause currently in the Bill should stand part.

[Lord Marks of Henley-on-Thames]

My Lords, this has been an important debate. It has been a serious and sober debate. I agree with the noble and learned Baroness, Lady Scotland, on that point. It has also not been a political debate in the sense that noble Lords on all sides have spoken both ways. My understanding of the Government’s position is that the position of Conservative Ministers remains as it was in the House of Commons; they will not support the clause as it stands, as inserted by the Back-Bench amendment; nor will they oppose it.

However, the position is that everyone in this House is agreed that we cannot, do not and never will condone knife crime. We all share the aim of driving knife crime down. I listened carefully to the points made, particularly those made by my noble and learned friend Lord Mackay of Clashfern, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Blair. All of them of course have enormous experience of the criminal justice system. Other noble and learned Lords, notably the noble and learned Lord, Lord Woolf, spoke the other way.

The points made against me and in favour of Clause 25 principally concern deterrents and sending a message. However, what has been entirely unclear is the notion that there is clear evidence that a message and deterrence are better sent by a mandatory provision in a statute than they could be by judges exercising their discretion—going on television if necessary, as the noble and learned Lord, Lord Hope, described; by action outside Parliament, as the noble Lord, Lord Purvis described; or by sentencing guidelines, as the noble and learned Baroness, Lady Scotland, suggested, supported by the noble Lord, Lord Carlile.

Sentencing guidelines are daily used and daily applied, but they do not remove judicial discretion to sentence appropriately, departing from the guidelines where that is the right and just thing to do. I do not believe that deterrence by a mandatory provision in a statute is proven to have any beneficial effect at all. I believe that a mandatory provision for minimum sentences in a statute, to be imposed where judges would not—when wishing to do justice—otherwise impose them, removes judicial discretion and inevitably does injustice in a number of cases. For those reasons we oppose this clause.

Your Lordships have also heard the extent to which the clause is defective. It is not supported by either of the parties of Government. It is not supported by many of great experience who have spoken from the opposition Benches. It is not supported by many of those who have spoken from the Cross Benches. The Motion will be that this clause stands part of the Bill. I urge noble Lords to oppose the Motion and vote not content. I wish to test the opinion of the House.

16:46

Division 1

Ayes: 228

---

Conservative: 123
Labour: 93
Crossbench: 6
Independent: 3
Ulster Unionist Party: 1

Noes: 159

---

Liberal Democrat: 65
Crossbench: 57
Labour: 23
Conservative: 4
Independent: 4
Ulster Unionist Party: 1
Plaid Cymru: 1

17:00

Clause 26 agreed.

Amendment 35A

Moved by

[Lord Beecham]

35A: After Clause 26, insert the following new Clause—
“Offence of driving while disqualified to be triable either way
(1) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences under the Traffic Acts) in the entry relating to the offence of obtaining licence, or driving, while disqualified, section 103(1)(b) of the Road Traffic Act 1988—
(a) in column 3, for “6 months” substitute “12 months”;(b) in column 2, after paragraph (c) insert—“(d) On indictment, in England and Wales”; and(c) in column 3, after paragraph (c) insert—“(d) 2 years or a fine or both”.(2) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference to 12 months is to be read as being a reference to six months.
(3) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”

[Lord Beecham (Lab)]

My Lords, after the late excitement, we come to the more mundane world of driving while disqualified.

Clause 26, which we do not oppose, deals with what might be described only as another Grayling gimmick: the imposition of a maximum 10-year sentence for causing death while driving when disqualified—not for causing death through dangerous or careless driving while disqualified but for causing death while driving when disqualified. It is a measure of the significance of the amendment that there were 13 convictions in the past year for the offence of causing death when driving while disqualified or without insurance or a licence. This was not really a major problem. What the Government failed to do was to consider the real problem of the number of members of the public who drive while disqualified whether or not they are involved in other road traffic offences, particularly offences which cause injury. It is that problem with which this amendment deals. The current situation is that the maximum sentence is six months’ imprisonment only.

The question of causing death while driving under disqualification, now to attract a 10-year sentence, stands oddly with a five-year maximum sentence for causing death by careless driving and a two-year sentence for causing death while driving without a licence. Some 7,000 people are convicted every year for driving while disqualified. In my submission and that of the Opposition the sentence of six months is clearly inadequate for that offence. The amendment therefore proposes that the offence should carry a maximum of two years’ imprisonment and be treated as either way: it could be tried in a magistrates’ court or a higher court if necessary. That seems an appropriate way of dealing with an offence of this kind and I hope that the Government will reflect on it and accept the suggestion, if not today then on Report. We must do something to discourage the prevalence of the serious offence of driving while disqualified. At the moment, particularly given the very substantial sentence imposed under Clause 26, that looks inadequate and needs to be remedied. I beg to move.

[Lord Faulks]

My Lords, this amendment, as the noble Lord, Lord Beecham, has explained, would make the current summary-only offence of driving while disqualified an either-way offence. That would mean that the offence, currently dealt with by magistrates, could also be tried by the Crown Court with a jury, and the Crown Court would have a maximum penalty of two years’ imprisonment available. I know that an identical amendment was tabled on Report in the other place, but let me explain what the Government propose to do in relation to driving offences.

This Bill already contains proposals, welcomed from all sides, to increase the maximum penalty for causing death by driving while disqualified to 10 years’ imprisonment and to create a new offence of causing serious injury while driving while disqualified with a maximum penalty of four years. That was a pressing issue which the Government wanted to address, and we have done so in this Bill.

I agree with the noble Lord, Lord Beecham, and the question of disqualified drivers generally is of concern to the Government and all in this House. We want to ensure that we are doing what we can to keep our roads safe. Those who are disqualified from driving should not be on the road, and those who flout the law should be dealt with appropriately by the courts. I stress that where a person decides to drive when they have been disqualified and their driving is also bad, the CPS has a range of other offences it can charge—for example, dangerous driving, which is already an either-way offence with a maximum penalty of two years’ imprisonment.

However, the Government are not ruling out doing exactly what the amendment seeks to achieve. We have already made it clear that we will carry out a wider review of the offences and penalties for driving offences over the coming months. We want to look at the sentencing framework for driving offences as a whole and to address the various concerns that I know many noble Lords and the public have about specific aspects of the law in this area.

I know that my right honourable friend Jeremy Wright has already made it clear that the review would look at the specific issue of driving while disqualified. We also want to look at the most effective ways of ensuring that repeat offenders are prevented from driving and do not pose a risk to the public in future.

Noble Lords will recognise that while we can make changes to specific offences where there is a pressing need to correct a gap in the law, as we have done with the causing death and serious injury offences, looking at the wider range of offences and the rationale for the entire sentencing framework needs careful consideration and should be done over a longer period.

I hope that my undertaking that the Government are looking at the driving while disqualified offence in the wider context of its relation to other offences and sanctions will reassure the noble Lord, and that he will feel able to withdraw this amendment.

[Lord Beecham]

I am grateful for the Minister’s indication. What he said underlines the legitimacy of the charge of gesture politics laid at the door of the Secretary of State, because he said that there is now to be an intensive review of the range of driving offences. It is absolutely right that that should be the case, but for an offence that was committed 13 times last year it was found necessary to amend the Bill in advance of the review to which the Minister referred. It is lamentable that Parliament, and this Bill in particular, should be used to make a mere gesture of that kind when the Government have already decided upon a proper, thorough review of these serious matters. Having said that, the assurance that the Minister has given satisfies me and the Opposition. I beg leave to withdraw the amendment.

Amendment 35A withdrawn.

Schedule 4 agreed.

Clause 27 agreed.

Amendment 36

Moved by

[Lord Faulks]

36: After Clause 27, insert the following new Clause—
“Meeting a child following sexual grooming etc
(1) In section 15(1)(a) of the Sexual Offences Act 2003 (meeting a child following sexual grooming etc), for “on at least two occasions” substitute “on one or more occasions”.
(2) In a case in which person A met or communicated with person B only once before the event mentioned in section 15(1)(a)(i) to (iii) of the Sexual Offences Act 2003, an offence under that section is committed only if the meeting or communication took place after this section comes into force.”

[Lord Faulks]

My Lords, this Government, and I know this House, are committed to doing their utmost to protect children from the scourge of sexual abuse. There is unity across Parliament in that regard.

Amendment 36 amends the grooming offence at Section 15 of the Sexual Offences Act 2003. It has been prompted by the sterling work of the cross-party inquiry into the effectiveness of legislation for tackling child sexual exploitation and trafficking within the UK. The inquiry was supported by the children’s charity, Barnardo’s, and chaired by the honourable Member for Rotherham, Sarah Champion MP, and the Government are very grateful to everybody who contributed.

While the report concluded that the Sexual Offences Act 2003 is generally fit for purpose, it identified a small number of amendments which would improve enforcement of specific offences, including the offence of grooming. Under the current law, a person is guilty of grooming if he or she meets or communicates with a child on at least two occasions, and subsequently they meet or arrange to meet the child, or they or the child travel to meet the other. The defendant must intend, either during or after the meeting, to commit a sexual offence against the child. It is the part of the offence which specifies that there must be two initial contacts between offender and child which is now problematic and which this amendment seeks to address.

Sarah Champion sought to deal with this issue through the amendments she tabled in the other place. She withdrew those amendments after we committed to look closely at this issue. Having considered the evidence and her representations carefully, the Government are persuaded that change is now needed.

At the time of its creation, the original offence was designed to tackle a relatively new pattern of behaviour that we commonly thought of as grooming. The aim was to protect children who may be contacted by adults repeatedly over a period of time to build their trust with the intention of subjecting them to sexual abuse in future. However, with the development of new technology and better, faster and simpler forms of communication including chat rooms and social media sites, it is easier for offenders to make contact with their victims and build their trust relatively quickly. The inquiry heard evidence that contact sexual offending against a child can now occur following just one communication or meeting. For example, the Child Exploitation and Online Protection Centre, CEOP, reported in 2013 that online child sexual exploitation has shifted in its nature, with the time between initial contact and offending behaviour often extremely short and characterised by rapid escalation to threats and intimidation. It describes a “scattergun” approach taken by perpetrators, who target a large number of potential victims. Even if they are ignored by the vast majority of children whom they target, they focus their efforts on the small number who respond positively to their communications. These views were echoed in oral evidence given to the inquiry by the police.

This amendment will therefore amend the grooming offence so that the number of initial occasions on which the defendant must meet or communicate with the child in question is reduced from two to one. This will permit more effective intervention by the police in relation to individuals who could otherwise have been prosecuted only when a second contact had been established, and in certain cases might prevent the sexual contact element of the offence occurring. It will also bring the offence in England and Wales into closer line with the equivalent Scottish offence, which requires only one initial contact.

More widely, the amendment will support the work being undertaken across government to tackle the sexual exploitation of children. My honourable friend the Minister for Crime Prevention, Norman Baker MP, is leading the Sexual Violence against Children and Vulnerable People national group. This panel of experts was brought together by the Home Office to co-ordinate and implement the learning from recent inquiries into historical sexual abuse and current sexual exploitation cases and issues around sexual violence more widely. Amendment 88 updates the Long Title of the Bill to reflect this change. For those reasons, I beg to move.

17:15

[Baroness Butler-Sloss]

My Lords, this is an extremely sensible amendment. I rise on behalf of Barnardo’s to express its very real thanks, which I share, for the amendment that the Government are putting forward.

[Lord Mackay of Clashfern]

My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.

[Baroness Thornton (Lab)]

My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.

[Lord Faulks]

I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.

Amendment 36 agreed.

Clause 28: Possession of pornographic images of rape and assault by penetration

Amendment 36A

Moved by

[Baroness Thornton]

36A: Clause 28, page 28, leave out lines 1 and 2

[Baroness Thornton]

My Lords, I am pleased to introduce a group of amendments that seek to tighten up Clause 28 and make it more effective. I welcome the clause, as I did at Second Reading. We on these Benches definitely welcome the Government’s efforts in this regard but think that there are some issues that need to be taken account of.

I place on record my thanks to Professors Rackley and McGlynn of Durham University for making their research and commentary available to us all, and to End Violence Against Women for its briefing and campaign. I also thank the British Board of Film Classification for coming to the House last week and giving a presentation—which, it has to be said, at times was really rather horrible—to explain how and why it sometimes does not give a classification to rape and extreme pornography. Several noble Lords attended the presentation, and I think that we all now have a greater understanding of where Clause 28 might not quite do the job that the Government intend. This particularly concerns the issue of context, definitions of penetration and realistic rape. I thank the Minister for his time in starting the discussion about these matters, and have suggested that he and the Bill team might also get the BBFC to come and discuss this clause with them; it is not a pleasant experience but it is very enlightening indeed.

I turn to the amendments. Amendment 36A would remove the requirement that the image be grossly offensive, disgusting or otherwise of an obscene character. The current law provides that for an image to be “extreme”, it must also be,

“grossly offensive, disgusting or otherwise of an obscene character”.

The current amendment would preserve this provision. We urge reconsideration of the use of language regarding obscenity. The use of the term “obscene” has long been criticised on the basis that it is typically deployed to capture material that is not only harmful but causes offence and disgust, and is typically focused on the impact on the consumer of material, rather than the wider consideration of harm, which is what this clause is actually about. We suggest that the Government should explore whether their description is compatible with justifying the original Clause 28 on the basis of cultural harm, not obscenity. We also contend that the criminal law is not used to prohibit material on the basis that it is considered disgusting. We recommend, therefore, the removal of the requirement that an image be,

“grossly offensive, disgusting or otherwise of an obscene character”.

Amendment 36B deletes lines 6 to 42, and the following amendments in the group would replace them. Amendment 36B would replace the existing language of the offence, and state that an image would be covered by this clause if it portrayed,

“sexual activity which involves real or apparent lack of consent or any form of physical restraint which prevents participants from indicating a withdrawal of consent”.

Amendment 36C seeks to clarify the definition of a realistic image, and would replace the requirement that the image portrays rape and assault,

“in an explicit and realistic way”,

with a requirement that the image be of,

“real or simulated depictions of”,

rape and assault by penetration.

The requirement that an image is “realistic” does not require the act depicted to be real, although we know that the clause seeks to cover real rape that has been filmed and made available to people. This is why the law refers to images which are “realistic”, meaning those that resemble or simulate real life. The use of the term “realistic” also mirrors international provisions on pornography, which similarly include real and simulated images. Article 9 of the Council of Europe Convention on Cybercrime 2001, on,

“Offences related to child pornography”,

extends to “realistic images”. The notes in our briefing tell us about the inclusion of real and simulated images.

The current laws on extreme pornography, and the proposed new provision, thus cover both real and simulated images. There is little doubt that Section 63(7)(c) of the Criminal Justice and Immigration Act extends to include “realistic” images of necrophilia where the “dead” person is not in fact dead. Similarly, in the proposed new law, a “realistic” explicit image of rape and/or assault by penetration—that is, an image of a simulated rape—should be covered by our amendment. However, in view of the fact that there has been some debate over the meaning of “realistic”, we suggest that this amendment is included in the Bill for the avoidance of doubt. Obviously, in all these amendments, if the Minister has something better to suggest, that would be even more wonderful. An amendment to the effect I have described was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in light of an explanation that the Bill’s Explanatory Notes would clarify that the offence would,

“cover both staged and real depictions of rape or other penetration”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]

This assurance is not sufficient and, for the purposes of clarity, we would much rather see this made clear in the Bill.

Amendment 36D would provide that an image would be caught by Clause 28 if it portrayed any sexual activity involving real or apparent lack of consent. This is also covered by Amendment 36B. This is an important clarification because, as the BBFC showed noble Lords last week, it is possible to have an image that does not involve anyone else except, for example, a woman and no penetration but, because of the depiction and what is being done by binding, gagging, other positioning or other horrible things, this is definitely sexual activity and there is a lack of consent, whether real or apparent. In the terms that the Government have used to justify this clause, the cultural harm of depiction of rape and non-consensual sexual activity would appear to be covered by our amendment. I ask the Minister seriously to consider it.

Amendment 36E would provide that possession of an image of sexual activity would be caught by Clause 28 if it fulfils certain criteria. It refers to sexual activity where a participant,

“is portrayed in such a way as to make them appear under 18”;

where a participant is,

“with someone who is depicted as a member of their immediate family; and … sexual activity incorporating sexual threats, humiliation or abuse”,

which are not part of a “consenting role-playing game”.

Amendment 36F would ensure that the context of an image—the descriptions and sounds accompanying it—is considered when determining whether it is extreme. The BBFC gave us an insight into the need to take context into account, which might include grooming, stalking or other kinds of threatening behaviour that leave no doubt as to what is happening or what is about to happen. Music, sounds, text and banner headlines would also be captured by this amendment.

I ask the Minister to see these amendments in the light in which they are proposed, which is to help to make the clause work better. I beg to move.

[The Deputy Chairman of Committees (Lord Colwyn) (Con)]

I remind the Committee that if Amendment 36B is agreed to, I cannot call Amendments 36C to 36F; if Amendment 36C is agreed to, I cannot call Amendment 36D; and if Amendment 36D is agreed to, I cannot call Amendment 36E, all by reason of pre-emption.

[Baroness Howe of Idlicote (CB)]

My Lords, I thank the noble Baroness, Lady Thornton, for her amendments to Clause 28, because it is clearly very important we get this right. In particular, I support the principle of Amendment 36C, which clarifies that the images can be “real or simulated”. I know the Government have amended the Explanatory Notes to clarify this point, but it seems to me that what is in the statute will be the key issue when the case is before the courts. With the increasing use of computer-generated images, surely it is right for us to clarify that these images are covered. The importance of such clarification is made in relation to children in the Protection of Children Act 1978 with the definition of “pseudo-photographs”. Why should a similar clarification of “real or simulated” not be made here when we are dealing with extreme pornographic images?

[Baroness Barker (LD)]

My Lords, I thank the noble Baroness, Lady Thornton, for explaining to the Committee the details of the meeting that a number of us attended last week. It was one of the most horrible meetings I have ever had to attend, but it was extremely informative. It showed the way the BBFC very diligently performs its role and achieves what most people in Britain want to see: it enables adults to view as much as they could possibly wish to—provided that it does not harm anybody else—but it is quite clear in the classification of materials and tries to limit those materials to which it would be preferable that there was no access.

The noble Baroness, Lady Howe, is absolutely right—she has much more experience of dealing with these matters than many of the rest of us. The key factor we kept coming back to was whether something was real or realistic or could be assumed to be real for a number of reasons. We were shown a particularly horrible image that was a cartoon. There was no way that anybody could view it and consider it to be real, but what it showed was truly gruesome. In the end the BBFC had not classified it.

The Minister may say there are different elements in these amendments that are technically deficient. However, I hope that he might be able to accept some of the points being made. This is a work in progress. The way the internet is taking over this form of very adult entertainment is still unfolding; the law is clearly currently way behind the producers of it and needs to be changed. This may not be the definitive answer, but the noble Baroness, Lady Thornton, has put forward some very helpful suggestions.

17:29

[Lord Faulks]

My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.

I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.

I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.

Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.

The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.

Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.

Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,

“grossly offensive, disgusting or otherwise of an obscene character”,

in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.

For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.

In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.

Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.

Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.

Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.

Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.

Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.

The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.

For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.

Amendment 36A withdrawn.

Amendments 36B to 36F not moved.

Clause 28 agreed.

Amendment 37

Moved by

[Lord Marks of Henley-on-Thames]

37: After Clause 28, insert the following new Clause—
“Offence of publishing a sexually explicit or pornographic image without consent
(1) A person commits an offence if they publish a sexually explicit or pornographic image of another identifiable person (whether or not that person is engaged in a sexual or pornographic act), unless—
(a) the identifiable person consented to publication;(b) the person who published the image reasonably believed the identifiable person would have consented; or(c) the person who published the image has reproduced an image that has already been published by another person. (2) For the purposes of this section it is immaterial who owns the copyright of the published image.
(3) In this section “publish” means to reproduce, share or otherwise distribute an image via the internet or other means.
(4) In this section a person is an “identifiable person” if—
(a) their face is displayed in the image;(b) any other identifiable characteristics are displayed in the image;(c) their name is displayed on, or otherwise connected to, the image; or(d) the image contains any other information by which the identity or address of the person could reasonably be ascertained.”

[Lord Marks of Henley-on-Thames]

My Lords, the term “revenge pornography” refers to the publication, usually but not always, on the internet, of intimate images of former lovers without their consent. This thoroughly nasty behaviour generally involves the perpetrator in taking advantage of his or her possession of sexually explicit images, generally taken or obtained in private during the course of an intimate relationship in circumstances where the parties, and certainly the party photographed, had every right to expect that the images would remain private.

Obtaining such images has become more common and much easier with the prevalence, popularity and sophistication of smartphones, with their ability to take or record high quality images, still and video, instantly and simply, with accompanying sound in the case of video. It is set to become even easier to take such images with the advent of cameras installed in glasses and yet further improvement in high definition video cameras in phones.

The widespread publication of such images causes, and is generally intended to cause, distress, humiliation and embarrassment for the victim—hence the name “revenge porn”. She or he—the victims are usually but not exclusively women—face the humiliation of their most private moments being exposed to family, friends, employers and the world at large. It is entirely predictable that such exposure can cause serious psychological and emotional damage even to those with robust personalities. Suicides as a result of such publications have been recorded. Worse still, the damage may often be increased because it follows the trauma of relationship breakdown and is caused by someone with whom the victim had previously been close. Publication can cause havoc in personal and family relationships and in relationships at work. The betrayal and the hurt it causes could hardly be worse. Such behaviour has been characterised by academics in the field as a form of abuse and I suggest that such characterisation is entirely accurate.

I have no hesitation in concluding that this practice should be criminalised and in asking your Lordships to pass legislation accordingly. I was therefore extremely pleased that in response to our Second Reading debate my noble friend the Minister indicated that the Government would be open to amendments of this Bill to that effect. I was also delighted when my noble friends Lady Berridge and Lady Morris of Bolton laid their Amendment 40, which is also in this group. I hasten to add that in my view there is neither magic nor any monopoly of wisdom in any particular wording. The point is to secure legislation to criminalise such behaviour with the most appropriate statutory language that can be found. I would mention, however, that I do have some concerns about my noble friends’ formulation of the proposed offence, to which I will come in a moment.

17:45

I will explain the draft clauses in our amendments. The offence would be committed by publication of an image that is sexually explicit or pornographic; the publication would have to be of an identifiable person as defined; it would have to be without the consent of that person or at least in circumstances where the perpetrator did not believe he had such consent; and the image must not have been published before. It would be a defence for the perpetrator to prove that he believed he had the consent of the person in the image or that the publication was unintentional. The offence would be triable either way and would carry a maximum sentence of 12 months’ imprisonment and/or a fine on indictment or six months and/or a fine on summary conviction.

The mischief to which these proposed clauses are directed is fairly and squarely the publication of the image. The criminal behaviour is the publication and the effects we seek to avoid are the hurt, humiliation and distress caused to the victim by such publication.

I have three doubts about the formulation of the offence proposed by my noble friends Lady Berridge and Lady Morris of Bolton. The first is that in their draft clause an offence would be committed only if the publisher intended that someone looking at the image did so for the purpose of obtaining sexual gratification. That may be an undesirable consequence of publication, but in our view such intention is irrelevant to the criminality of the publisher. What we wish to target is the humiliation of the victim and that is the same whether or not there is any intention of affording sexual gratification to third parties.

Our second concern is that for the offence to be committed under their formulation it would be necessary for the image to portray the person portrayed in it doing a private act, defined as a sexual act not of a kind ordinarily done in public. For an image to cause real distress, it is not necessary for the subject of the image to be actually engaged in a private act. The fact of being exposed naked or semi-naked in a compromising position or in compromising circumstances may be just as devastating. It does not seem to us that a sexual act should have to be portrayed in the image before an offence could be committed.

Finally, and I accept less importantly, we are not convinced that it should be necessary for the person in the image to be exposed or semi-exposed in the way described in my noble friends’ proposed new subsection (3)(c)(i) for an offence to be committed. While I can see that an image of a person not so exposed is unlikely to be reasonably classifiable as sexually explicit, I am not sure that can be ruled out and I suggest the requirement is unnecessary.

However, the important thing is to secure the criminalisation of this behaviour. Long gone are the days when we should regard physical harm as a necessary ingredient of an offence against the person. The degree to which malicious individuals can hurt innocent victims by publication on the internet of images of their most intimate moments is ample justification, I suggest, for our invoking the criminal law to prevent and punish such behaviour. I beg to move.

[Baroness Berridge]

My Lords, I rise to speak to Amendment 40 in this group. It seeks to introduce a new criminal but also sexual offence of posting on the internet what has been outlined as revenge pornography. This is one of those rare situations where I do not advise noble Lords to go on to the internet to look first-hand at these sites; they are truly appalling. As my noble friend Lord Marks has outlined, this is a growing problem that affects mainly women, particularly when naked or sexually explicit pictures or videos of them have been posted on the internet without their consent. Obviously these images are put online almost exclusively by ex-partners, and there is generally an intention—which is why our clause is drafted as it is—to sexually humiliate the former partner. Often the contact details of the victim as well as sexually abusive or malicious comments are added when the image is posted.

There are dedicated websites that are easily accessible; this is not a niche problem. The UK Safer Internet Centre, which is working in this area, has stated that some 20 to 30 websites in the United Kingdom are hosting this type of material. Apparently it has become a consumer product on pay-per-view. Many of the websites attract huge volumes of traffic, and the more often an image is looked at, the more likely it is that when you Google search your own name, the first thing that will come up in connection with your name is these images that have been posted, which is particularly degrading.

These are pictures that the victim may regret were taken in the first place, but, as my noble friend outlined, there would have been every expectation that they were private and would not be viewed, sometimes within days, by thousands of people on the internet, including perhaps work colleagues and friends at the school gate. Of course, the impact can be devastating. Victims have described that they feel like they have become a porn star without their knowledge or consent. There are also devastating impacts on employment prospects as well as on personal reputation and career.

This is another situation where the law has not quite kept pace with the internet. I am grateful for my noble friend’s contribution to the drafting of the proposed new clause, which is based on the offence of voyeurism. I hope that the Minister will take all of these proposed clauses away in order to consider what would be the most appropriate formulation. However, we would submit that this should be classified as a sexual offence. Currently, these matters do not fall within the ambit of the Protection from Harassment Act 1997 because they are not a course of conduct. They are also not caught by the Obscene Publications Act 1959 because the images are not always classified as being obscene.

It is important not only to make this behaviour criminal, but for the police to know that it is a criminal act in order that they can take action at police level and against the internet service providers. Once this is an offence, they will have a mechanism by which to remove these images, because many victims are complaining that without such clarity, they find that although they make submissions to the internet service providers again and again, the images are not being removed from these websites. Of course, the longer they remain posted, the greater the damage that is done to the victims.

At this point I wish to pay tribute to the very brave women who have put their head above the parapet and have spoken out in order to bring attention to this issue. I mention in particular Laura Higgins and the work of organisations such as the UK Safer Internet Centre. I am also pleased that Women’s Aid, Welsh Women’s Aid and Scottish Women’s Aid all support the amendment tabled by myself and my noble friend Lady Morris. Although this matter was not raised in the other place, honourable Members including my right honourable friend Maria Miller hosted an adjournment debate in June to bring it to the attention of Members of Parliament.

At the moment, Amendment 40 does not include any reference to penalties, but I hope that my noble friend will consider the similar offence of voyeurism, which carries with it a sentence of imprisonment of up to two years. We believe that this offence should attract the same scale of penalty. It is only by showing our abhorrence of the sexual abuse of these people that they will be able to secure justice.

This type of behaviour is becoming an ever more pressing problem, and other countries such as the United States and Israel have had to bring forward legislation to catch it. I believe that we should take this opportunity and I am grateful that the Minister is in listening mode in relation to this matter. I hope that that we can come up with an acceptable formulation of what the offence should be in order to offer these victims some protection.

[Baroness Grender (LD)]

My Lords, I apologise for having been unable to attend Second Reading. I will speak in particular in favour of Amendments 37, 38 and 39. To hear people talk about revenge porn, you would think it had only just been invented, but the divorce in 1963 of the Duke and Duchess of Argyll involving the infamous image of a headless man tells a different story. The dramatic difference is that of course today we have the ability to reproduce a picture a thousand times without the permission of the individual concerned. I will focus on one aspect of this, which is the motive to hurt or humiliate the individual.

I do not believe that on the whole the motivation is sexual gratification, as outlined in Amendment 40. Perhaps I may put before the Committee three case studies that will help to illustrate this. The first is of a lady who was with her partner for two years. They planned to buy a home together so it was a trusting relationship, but after it broke down, her ex published photos of her and labelled her as a “whore” and a “slut”. He even set up an identity pretending to be her and invited humiliation and insults. When she went to the police they were unable to help, and the website refused to remove the images, in spite of regular requests.

The second example is that of a woman whose images were posted on a website called myex.com. The images spiralled from website to website gathering views, comments, abuse and humiliation. While some porn sites actually responded to the woman’s specific requests to remove the images, myex.com did not. She currently remains terrified of family and work colleagues seeing the images. We need to be conscious of the fact that men can also be victims, although most are women. I cite the case of a 29 year-old man who exchanged images having been sent fake images by his girlfriend. His ex has shared them, particularly with his work colleagues.

These cases are ones that involve not naïve teenagers—although obviously I believe that they should be protected as well—but people who have been in trusting relationships where the trust has broken down. What has been done is something that we should clearly define as a crime. These people are our sisters, brothers, daughters and sons, and what they need is protection against these vile acts that are committed without their consent. The inflicting of pain and humiliation is the only motive, and the individual who publishes such images should know that when they do it, they are committing a crime. I hope that the Minister will reflect that when he considers a possible amendment to the Bill.

[Baroness Howe of Idlicote (CB)]

My Lords, I support the principles behind Amendments 37 and 40. The internet, as we all know, is a fantastic resource, but it can also be a source of harm to children and, in this case, to adults. Noble Lords were clearly grateful for the very positive spirit with which the Minister, the noble Lord, Lord Faulks, agreed to consider suggestions for tackling revenge pornography when the issue was raised at Second Reading, and I hope very much that he will continue to work with the noble Lord, Lord Marks of Henley-on-Thames and the noble Baroness, Lady Berridge, and other noble Lords who are interested in these amendments. We must make sure that a robust solution is found to this increasingly worrying problem.

18:00

[Baroness Kennedy of The Shaws (Lab)]

My Lords, it is important that this proposed new clause is drawn with real care. While I hear the discussions about the motivation to degrade and humiliate or to secure sexual gratification, it is important to draft widely without specifying the nature of the motivation. That is because it is always difficult to pin down motivation. A case in Canada is currently attracting a great deal of public attention in which a woman judge has been suspended from the judiciary while an inquiry takes place because her husband put on to the web images of her that had been taken in intimacy.

The concern for the judiciary is that this undermines her authority in the courtroom, because these images are available. It is, if you like, bringing the judiciary into disrepute. The consequences for her life are therefore considerable. It is an interesting and rather difficult debate in Canada. She has remained with her husband and seems to have forgiven him for his transgression, but the issue has moved beyond the pair in the relationship to be an issue of public concern.

I urge that we think about the implications of the drafting. In Canada, a woman’s career has been held in abeyance. She has remained in a marriage because of her commitment to it, but certainly it is causing problems. It is really an issue about consent: has a person consented to the disclosure of intimate photographs? It is not an issue of speculating about what the motivations might be.

[Baroness Morris of Bolton (Con)]

My Lords, my noble friend Lady Berridge set out strongly the case for Amendment 40 with which I am associated—namely that the appalling act of revenge pornography should be a serious sexual offence. I take on board what my noble friend Lord Marks and the noble Baroness, Lady Kennedy, said about the drafting. Neither of us would seek to be draftsmen, but we should make sure that we capture whatever needs to be captured in these amendments.

I was unable to speak at Second Reading but this is a matter that concerns me and rightly concerns many in your Lordships’ House. The issue is how we address that concern. The amendments brought forward by my noble friend Lord Marks would classify the online posting of revenge pornography as an ordinary criminal offence. This fails to recognise the sexual nature of the crime and the impact that it has on the victim, which is a clear violation of the victim’s dignity. Further, this failure to recognise the gravity of the sexual offence leads to an unduly lenient penalty, allowing for imprisonment for no more than 12 months. The courts must have adequate sentencing powers to reflect the severity of this act. For these reasons, I press strongly for this crime to be classified as a sexual offence.

Revenge is a horrible and destructive motive generally, driven as it is by anger, malice and cruel calculation. Perpetrators choose many ways to pursue their revenge, such as harassment, stalking, humiliation through social media by posting malevolent or hurtful comments or spreading rumours concerning work, family or finances in order to ruin reputations. But the greatest betrayal is to choose to use naked or sexually explicit images that should be a private and deeply personal matter between a couple and which were never intended to be seen by anybody else. In this way, the perpetrator commits an act of sexual abuse against the ex-partner, specifically designed to subject them to humiliation and degradation.

If we look at the criminal offence of sexual assault under Section 3 of the Sexual Offences Act 2003, we see that:

“A person (A) commits an offence if he intentionally touches another person (B) … the touching is sexual … B does not consent to the touching and … A does not reasonably believe that B consents”.

To my mind the posting of revenge pornography online is in essence a virtual form of sexual assault since the perpetrator is intentionally posting the naked or sexually explicit image without the subject’s consent, the posting of the image is sexual in nature, the subject does not consent to the posting and the perpetrator does not reasonably believe that the subject of the image consents.

Victims of revenge pornography face extraordinary difficulties, as we have heard, in trying to have their photographs taken down from websites set up specifically to display this type of material. Clearly criminalising this type of activity should give an incentive to internet service providers and search engines to take material down. As things stand, some victims have had to pay so-called fees of hundreds of dollars to host websites based in the United States just to have their photograph taken down from the site.

The law needs to set out clear boundaries about what is and what is not acceptable behaviour, including sexual behaviour. As technologies change, we need to ensure that we keep up with changes in behaviour. This is why we should take this opportunity to recognise revenge pornography as a sexual offence.

[Baroness Brinton (LD)]

My Lords, I added my name to Amendments 37, 38 and 39 and I shall not repeat the very good points made by my noble friends Lord Marks and Lady Grender. I shall start from the point at which my noble friend Lady Grender ended: namely, the activities among our teenagers and very young adults which may not always be fully sexually explicit, and certainly may not be intended to be pornographic. A large number of students both in schools and colleges are being asked by their boyfriends or sometimes—though it is unlikely—girlfriends to have photographs taken of them which I am afraid are being used against them. The noble Baronesses, Lady Berridge and Lady Morris, made valid points about the distinction between different types of photograph. It may be that that will be addressed in the discussion that I hope the Minister will have with those who have put forward both sets of amendments.

The principle in our amendments is clear: that the crime is the publication of those photographs or other electronic media, because it is that over which the person in the photograph feels they completely lack control. It is used as a form of abuse. Increasingly what is used as a key element in cases of stalking—indeed this morning there is a case in the paper for which a court date has just been set in December in Scotland—is the threat to publish not only publicly but also among family and friends. The key point of our amendment is that when it becomes a tool of abuse, that in itself should become a crime.

Because this is about making a law, there is, understandably, little focus on the victim. I will highlight the work that the NSPCC and ChildLine have been doing with young people. They have a very good app called Zipit that is intended to teach secondary school pupils how to respond if their boyfriend or girlfriend asks them for a photograph that is inappropriate, using silly photographs and silly text underneath that might say something like, “You’re having a laugh”. That is beginning to work. The work that PSHE staff are doing in schools to make young people understand the dangers of this are vital if we are not to end up with a generation of young people thinking that it is acceptable to play at this. When they get into stronger relationships where they may have a partner over some period of time it will be second nature; then, if they want to get their own back, we will end up in a position where these sexually explicit photographs start to be exported.

I am concerned that one thing that we have not looked at is the circulation of the image after initial publication. There has been some discussion online about trolling and about abuse of the victims by others. I hope that the Minister will be prepared to look at this. It may be difficult to pin down who has circulated the image but we have seen, in recent cases of trolling, that people who have recirculated offensive and defamatory literature can be taken to court for continued publication. That should also be true in this case.

[Baroness Barker]

My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.

To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.

The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.

[Baroness Thornton]

My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.

Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.

We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,

“with the intention that he or a third person will”,

gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.

Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.

[Lord Faulks]

My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.

Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.

18:15

Amendment 37 would create a new offence making it illegal to,

“publish a sexually explicit or pornographic image of another identifiable person”.

The new offence would be subject to a 12-month maximum prison sentence. Amendment 40 creates a new offence to capture revenge porn by amending the Sexual Offences Act 2003, although the proposed new section does not provide for a penalty for the offence. In addition, it only captures images of another person doing a private act that are shared with the intention that the publisher, or a third person, will obtain “sexual gratification” by looking at them. It would not therefore capture all types of revenge porn, such as images which are being posted not for sexual gratification but with the intent of causing maximum distress or damage to the victim.

I assure your Lordships’ House that laws already exist that capture many instances of uploading or sharing such material. The Government encourage any members of the public who have been a victim of this behaviour to contact the police. All published material, both online and offline, is subject to the Obscene Publications Act 1959, which would cover the distribution of particularly extreme material that has been uploaded on to the internet. We also have in place other communications offences that might equally apply to this behaviour. If the content is grossly offensive, indecent, obscene or menacing it may fall foul of Section 127 of the Communications Act 2003, which makes it an offence to send such material over a public telecommunications network.

In addition, depending on the content, posting this material may be an offence under Section 1 of the Malicious Communications Act 1988, the sentence for which the Bill will increase to two years’ imprisonment. The distribution of this material, if carried out as part of a “course of conduct” which alarms a person or causes distress, could amount to a criminal offence under the Protection from Harassment Act 1997. That Act also provides civil remedies that would prevent more material from being distributed. Lastly, I assure noble Lords that if revenge porn images are of children under the age of 18, then very robust legislation dealing with indecent images of children would come into play.

However, notwithstanding this, the Government are carefully considering what more needs to be done to combat this very damaging behaviour. We are listening to campaigners, including those from across the House, and looking urgently at the best way to address the behaviour that these amendments seek to criminalise. This includes raising awareness of these issues, looking at the existing framework of criminal offences and ensuring that the relevant authorities are adequately equipped to take enforcement action when needed.

If new legislation is required, we must ensure that we address all the issues involved to ensure that we properly target the material that is causing concern and that we capture only the relevant behaviour. This requires detailed consideration and care, as has been widely acknowledged during the debate. Although there is a degree of consensus about what evil we are trying to seek out and criminalise, exactly how we capture it is a complex problem. This debate will certainly help the analysis that will take place in the month or two that follow, and I would of course be happy to see any of those concerned to ensure that we capture adequately and appropriately the behaviour at which these amendments are directed. We will take away these amendments and return to the House with our conclusion at a later stage of the Bill. In the mean time, in thanking all noble Lords for their participation in the debate, I urge that the amendment be withdrawn.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful to everyone who has spoken in this debate, and to the Minister for his strong indication that legislation will be forthcoming. It is clear that there is consensus on the nature of the problem and on the proposition that legislation is required to deal with it. I entirely accept the point of the noble Baroness, Lady Kennedy, that it is important not to set the hurdle too high by requiring the motivation to be established. Our amendments did not do that. I also entirely accept the point made by my noble friends Lady Berridge and Lady Morris of Bolton that it may be sensible to record this as a sexual offence, to enable the consequences of it to be followed through.

I also take the point the Minister makes—that some offences already capture some elements of this kind of behaviour. However, he plainly accepted that this is not true of all such behaviour and, because the offence is so unpleasant and the consequences so bad, it seems clearly proved that we need a separate offence. I look forward to us all co-operating and trying to word this appropriately. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendments 38 to 40 not moved.

House resumed. Committee to begin again not before 7.01 pm.

Ukraine (Shooting Down of MH17) and Gaza

Monday 21st July 2014 Lords Chamber

Statement

18:21

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:

“Mr Speaker, this is the first time the House has met since the tragic loss of Malaysian Airlines flight MH17 last Thursday and I think that it is right to make a Statement about this and the ongoing crisis in Israel and Gaza. Flight MH17 was travelling from Amsterdam to Kuala Lumpur when it was shot down by a surface-to-air missile over eastern Ukraine. All 298 people on board were killed. It includes 10 of our own citizens, as many as 80 children and victims from nine other countries, including 193 Dutch citizens. It also includes members of an Australian family who had lost relatives on Malaysian Airlines flight MH370 earlier this year.

From Adelaide to Amsterdam, from Kuala Lumpur to Newcastle, we are seeing heart-wrenching scenes of grief as communities come together to remember their loved ones. I am sure the whole House will join me in sending our deepest condolences to the friends and families of everyone affected. Alongside sympathy for the victims, there is also anger. There is anger that this could happen at all; there is anger that the murder of innocent men, women and children has been compounded by sickening reports of looting of victims’ possessions and interference with the evidence; and there is rightly anger that a conflict that could have been curtailed by Moscow has instead been fomented by Moscow. This has to change now.

In the last few days I have spoken to Presidents Obama and Hollande, Chancellor Merkel, and the Prime Ministers of the Netherlands, Malaysia, Poland and Australia. We are all agreed on what must happen. First, those with influence on the separatists must ensure that they allow the bodies of the victims to be repatriated and provide uninhibited access to the crash site to enable a proper international investigation of what happened to flight MH17. Secondly, President Putin must use his influence to end the conflict in Ukraine by halting supplies and training for the separatists. Thirdly, we must establish proper long-term relationships between Ukraine and Russia, between Ukraine and the European Union, and above all between Russia and the European Union, NATO and the wider west. Let me take each of these points in turn.

The first priority remains ensuring proper access to the crash site to repatriate the bodies and investigate what happened. The UK has sent air accident investigators and a police-led victim identification team to help with the international effort. The Ukrainian Ministry of Emergency Situations has now searched an area of 32 square kilometres around the crash site and recovered 272 bodies. The work has been made more difficult by the presence of armed separatists. The bodies sitting on a refrigerated train have still not been allowed to leave. The pictures of victims’ personal belongings being gone through are a further sickening violation of this already tragic scene.

It is welcome that international experts have been able to visit the site, but this should not have taken four days, and even now they are still not getting the unimpeded access that they need. I spoke to President Putin last night and made it clear that there can be no more bluster or obfuscation. We expect him to help right now by using his influence with the pro-Russian separatists to secure full access for international investigators and to support the repatriation of the bodies, by handing them over to the appropriate authorities and ensuring they are treated with dignity.

Families want information and answers and we must make sure we get them. The UK and Australia have tabled a joint resolution at the United Nations Security Council demanding proper access in support of a credible international investigation, and we expect this resolution to be voted on this evening. Secondly, I also made it clear to President Putin that we expect Russia to end its support for the separatists and their attempts to further destabilise Ukraine. No one is saying that President Putin intended flight MH17 to be shot down—it is unlikely that even the separatists wanted this to happen—but we should be absolutely clear about what caused this terrible tragedy to happen.

The context for this tragedy is Russia’s attempt to destabilise a sovereign state, violate its territorial integrity and arm and train thuggish militias. Over the past month there has been an increasing amount of heavy weaponry crossing the border from Russia to separatist fighters in Ukraine. There is evidence that Russia has been providing training to separatist fighters at a facility in south-west Russia, including training on air defence systems. Seconds before flight MH17 dropped out of contact, a surface-to-air missile launch was detected from a separatist-controlled area in south-eastern Ukraine. According to expert analysis, an SA-11 is the most likely missile type.

In an intercepted conversation, a known separatist leader was overheard claiming that a separatist faction had downed an aircraft. Another separatist leader claimed on Twitter to have shot down an aircraft at about the same time, while a video on social media over the weekend showed an SA-11 missile system, missing at least one missile, travelling back towards Russia. Those who argue that the Ukrainians could be responsible need to explain all of this. In addition, there is no evidence that Ukrainian forces have fired a single surface-to-air missile during the conflict and no Ukrainian air defence systems appear to have been within range of the crash. By contrast, pro-Russian separatist fighters have downed more than a dozen Ukrainian aircraft over the past few months, including two transport aircraft, so the picture is becoming clearer and the weight of evidence is pointing in one direction: MH17 was shot down by an SA-11 missile fired by separatists.

Thirdly, this is a defining moment for Russia. The world is watching and President Putin faces a clear choice in how he decides to respond to this appalling tragedy. I hope that he will use this moment to find a path out of this festering and dangerous crisis by ending Russia’s support for the separatists. If he does not change his approach to Ukraine in this way, then Europe and the west must fundamentally change our approach to Russia. Those of us in Europe should not need to be reminded of the consequences of turning a blind eye when big countries bully smaller countries. We should not shrink from standing up for the principles that govern conduct between independent nations in Europe and which ultimately keep the peace on our continent. For too long, there has been reluctance on the part of too many European countries to face up to the implications of what is happening in eastern Ukraine. It is time to make our power, influence and resources felt.

Over the weekend, I agreed with Chancellor Merkel and President Hollande that we should push our partners in the European Union to consider a new range of hard-hitting economic sanctions against Russia. We should take the first step at the Foreign Ministers’ meeting in Brussels tomorrow. If Russia does not change course, then we must be clear that Europe must keep increasing pressure. Russia cannot expect to continue enjoying access to European markets, capital, knowledge and technical expertise while she fuels conflict in one of Europe’s neighbours. We must do what is necessary to stand up to Russia and put an end to the conflict in Ukraine before any more innocent lives are lost.

Let me now turn to the ongoing crisis in Israel and Gaza. The crisis was triggered by Hamas raining hundreds of rockets on Israeli cities, indiscriminately targeting civilians in contravention of all humanitarian law and norms. In the last fortnight, Hamas has fired 1,850 rockets at Israeli cities. This unprecedented barrage continues to this moment, with Hamas rejecting all proposals for a ceasefire, including those put forward by the Egyptian Government.

I have been clear throughout this crisis that Israel has the right to defend itself. Those criticising Israel’s response must ask themselves how they would expect their own Government to react if hundreds of rockets were raining down on British cities today. But I share the grave concern of many in the international community about the heavy toll of civilian casualties. The figures are very disturbing. Over 500 people have now reportedly been killed in Gaza and over 3,000 people injured. The UN estimates that over 83,000 people have been displaced so far. Israel has also faced loss of life, with 18 soldiers and two civilians killed, including 13 soldiers yesterday alone.

I spoke to Prime Minister Netanyahu again about this crisis last night. I repeated our recognition of Israel’s right to take proportionate action to defend itself and our condemnation of Hamas’s refusal to end its rocket attacks, despite all international efforts to broker a ceasefire. But I urged him do everything to avoid civilian casualties, exercise restraint and help find ways to bring this situation to an end. Prime Minister Netanyahu made clear that Israel had been ready to accept each of these ceasefire proposals and had unilaterally implemented a temporary ceasefire in the hope that Hamas would follow suit. My right honourable friend the Foreign Secretary has spoken to President Abbas to welcome his support for a ceasefire and underline our wish to see the Palestinian Authority back in Gaza.

The UN Security Council met in a special session last night and issued a call for an immediate ceasefire. The council expressed serious concern about rising casualties and called for respect for international humanitarian law and the protection of civilians. We strongly endorse that call. It is vital that Hamas recognises the need to enter serious negotiations to end this crisis. In particular, we urge Hamas to engage with the ceasefire proposals put forward by the Egyptian Government. It is only by securing a ceasefire that the space can be created to address the underlying issues and return to the long and painstaking task of building the lasting and secure peace that we all want to see. I commend this Statement to the House”.

That concludes the Statement.

18:33

[Baroness Royall of Blaisdon (Lab)]

My Lords, I am grateful to the Leader of the House for repeating the Statement made by the Prime Minister in the House of Commons. I am also grateful to the Chief Whip for extending the time for Back-Bench questions to 30 minutes.

The shooting down of MH17 over the skies of Ukraine was a tragedy which shocked the world. From these Benches, I join the Leader in expressing our heartfelt and deepest sympathy to the relatives of those who lost their lives. We share the feeling of anger mentioned in the Statement. We have all been greatly saddened and dismayed by the images of the site, strewn with bodies and belongings, telling the tale of what was normality and hope but is now despair and destruction.

We have been outraged about the way in which the site has been dealt with—first, access barred to the OSCE by drunken rebels, then the site left open for anyone to trample over and the casual indifference in how the bodies of the deceased have been handled. These are the remains of human beings who were loved by families and friends. One can only imagine what it must be like for them to see the disregard and disrespect with which their loved ones are treated.

The families face not only grief and loss but at the same time multiple practical issues. I would therefore ask the noble Baroness if the Government will identify a senior Minister to co-ordinate support for them—as was done by my right honourable friend Tessa Jowell after 9/11, 7/7 and the tsunami. I would be grateful for an assurance from the noble Baroness that the Government will do everything they can to enable the international community to help secure the site, repatriate the bodies and gather the evidence that shows who is responsible. We welcome the resolution of the United Nations Security Council this evening. Does the noble Baroness agree that as soon as the investigation into the disaster is complete there should be an emergency meeting of European Heads of Government to consider what further steps should be taken?

It would appear that international civil aviation regulators imposed no restrictions on crossing this part of eastern Ukraine. Could the noble Baroness confirm that the necessary safeguards are now in place over this area—and also over any other conflict zone in the world? The evidence is growing that this was not simply a tragedy but a terrible crime. In light of the vile attack on flight MH17, can the Leader say whether there is now any specific travel advice to British citizens planning to go abroad?

This is the moment for a strong and determined EU to step up to its responsibilities and confront Russian actions. Europe must show its sorrow but also its strength. If we, the European Union—born out of conflict and with a mission to keep peace—act together, we can and will be strong. So I welcome the Prime Minister’s commitment to seek a toughening of EU sanctions against Russia at tomorrow’s European Council meeting. Can the noble Baroness tell us what measures the Government want to see considered? Will the Government support decisive steps to extend sanctions, not just against specific individuals but also against Russian commercial organisations to dissuade President Putin from the supply of arms and support for the separatists that he is now providing across the Russian border?

Turning to the horror unfolding in Gaza, I am sure that other noble Lords, like me, wept when witnessing on our television screens the unnecessary death and destruction which grows by the hour. It is intolerable to see the harrowing images of hospitals overwhelmed, mortuaries overflowing and parents devastated as they cradle their dying children. With each day the situation worsens.

Since the start of this conflict, 20 Israelis have been killed—18 of them soldiers. More than 500 Palestinians have been killed, including countless innocent young children. Their short lives ended in the most brutal and horrific of circumstances. No one would suggest that reducing this conflict to a ledger of casualties is right but I am sure the whole House would agree that we must acknowledge the scale of the suffering in Gaza. The life of a Palestinian child is worth just as much as the life of an Israeli child. Every death will fuel the hatred, embolden Israel’s enemies and recruit more supporters to terrorist groups. We abhor the firing of rockets by Hamas into Israel and we abhor the escalation of Israeli military action. Both must cease. It is innocent people who are suffering most.

The Israelis have the right to live without constant fear for their security; the people of Gaza have a right to live with dignity and peace. We stand up for Israel’s right to defend itself but does the noble Baroness agree that self-defence must be proportionate? The escalation of military action will not bring Israel lasting security. Rather, it deepens the insecurity and brings suffering and death to individuals and the devastation of innocent lives. Does the noble Baroness agree with the Secretary-General of the UN, Ban Ki-moon, that we must continue to press for an immediate ceasefire, an immediate end to the Israeli military operation in Gaza and rocket fire by Hamas, that all sides must respect international humanitarian law and that Israel must exercise maximum restraint? Does the noble Baroness share the concern expressed about Israeli use in Gaza of flechette shells, which spray out thousands of lethal metal darts? I am sure the whole House will agree that the only way to avoid the cycle of violence and perpetual insecurity in the region is to address the root causes of the conflict, and that there must be an immediate return to the negotiating table, and talks for a two-state solution. In the words of Mr Ban:

“Israelis but also Palestinians need to feel a sense of security. Palestinians but also Israelis need to see a horizon of hope”.

18:40

[Baroness Stowell of Beeston]

My Lords, I welcome the response of the noble Baroness, Lady Royall, to this Statement and for her support. I think it is fair to say that we both speak for the whole House in sending our heartfelt condolences to the families of the victims of the appalling incident in Ukraine. At moments such as this, both Houses of Parliament, the Government and the Opposition speak with one voice to ensure that the deceased are treated with respect and dignity. Above all else it is a matter of human decency that recovery officials in eastern Ukraine are allowed to get on with the task of repatriating the bodies of the deceased and of investigating the crash site fully and unhindered.

I turn now to the noble Baroness’s questions. She asked whether we would identify a senior Minister to co-ordinate support for families. I can confirm that Mark Simmonds, who is the relevant Minister of State in the Foreign Office, is that person. The Prime Minister also said this afternoon, in another place, that he would also want to discuss directly with the families how best we can take care of their needs and concerns.

The noble Baroness asked whether there should be an emergency meeting of the European Council Heads of Government. The Prime Minister has not ruled out such a meeting but tomorrow evening the meeting of European Foreign Ministers takes place, and it is in that forum that we should set out the tough measures necessary to show that Europe is very firm and resolute in its requirements from Russia.

The noble Baroness also asked about specific travel advice for those planning to go abroad. Eurocontrol is the organisation that sets parameters for where aeroplanes can or cannot fly, while we give advice about individual countries where citizens should or should not travel to. This information is set out on the Foreign Office website, where it is regularly updated.

The noble Baroness asked about sanctions. Clearly, I agree with her that this is a moment of reckoning for Europe and I hope the European Council will not be found wanting. Regarding specific steps that should be taken, we already have what we describe as tier 2 sanctions, some of which are already in place, and the Prime Minister has said that more can be done, which might include naming individuals and increasing the number of asset freezes and travel bans. When the Prime Minister was at the European Council last week, he suggested that this could be broadened to include cronies and oligarchs around President Putin and other leaders—even those without a direct link to Ukraine and Crimea. He made some progress on that and hopes to make more.

The Prime Minister also said this afternoon that it is time to go into tier 3 sanctions, which might extend, for example, to stopping future military sales by any European country going ahead. We have already stopped sales from Britain. There are a number of other suggestions about airlines and banks, particularly ones connected with Crimea, that have not yet been acted on. There are, therefore, a whole set of things which should be set in train and a very clear message sent.

I turn now to the points the noble Baroness made about Gaza. It is most important to stress from the start that the loss of any innocent civilian life is a tragedy and I wholeheartedly endorse her comments about that. The first priority must be a ceasefire and an end to the bloodshed on both sides. I agree that we should not look at this—I think she described it thus—as a ledger of casualties. It is, rather, a deeply human tragedy and what is happening in Gaza is heartbreaking. In the longer term—beyond an immediate ceasefire—we want an end to this cycle of violence once and for all. That would make the Israelis secure and ease the suffering of ordinary people inside Gaza.

The noble Baroness referred to the comments of Ban Ki-moon. We have to be absolutely clear that the quickest way for the situation to be brought to an end is for Hamas to stop the rocket attacks on Israel. I agree that we need to make progress towards a two-state solution but that will not happen while there is no ceasefire and Hamas continues to fire rockets into Israel. That is the root cause of this and it needs to change—and change quickly—to bring peace to the Middle East.

18:46

[Lord Dholakia (LD)]

My Lords, I extend my sympathy to the Governments, people and families affected by the MH17 tragedy. The Prime Minister is absolutely right to insist that the UN Security Council demands proper access in support of a credible international investigation. He is also right to insist on hardening the economic sanctions. The question I put to my noble friend the Minister is: what would be the impact on the British economy of this measure and could we count on the wholehearted support of the EU, in particular Germany?

[Baroness Stowell of Beeston]

The most important thing is for the sanctions put in place to have a direct effect on Russia. The existing sanctions have already had some impact—Russia’s economy has shrunk as a result. As far as the future is concerned, and how any additional sanctions might affect the UK economy, we should recognise that our success is based on our security. That also applies to Europe more widely, so in looking at possible further steps we need to make sure that, as member countries of the European Union, we apply measures fairly in terms of their impact. We must, however, not lose sight of the fact that security is a very important part of our success.

[Lord Warner (Lab)]

Can the Minister please give us some figures on the Israeli casualties arising from the 1,850 rockets? Will she also acknowledge that there is a slight disjunct in this Statement between the robustness in the Government’s response on Russia and their response on Israel? Will she recall that Israel is becoming a serial offender in this area? Israel, under Operation Cast Lead, killed hugely larger numbers of Palestinians in its response to rockets fired over. It is a repeat of what happened there. Those of us who went to Gaza and saw what the Israeli forces had done in Gaza to civilians—not to Hamas militants—as a result of Operation Cast Lead are now seeing this repeated. Will the Government not consider taking the kind of robust resolution to the United Nations that they are doing with Russia, in relation to the disproportionate action taken by Israel?

[Baroness Stowell of Beeston]

It is important for me to say that this conflict is taking a terrible toll. Along with the rest of the Government, I am deeply concerned at the high number of civilian casualties and the humanitarian impact of the conflict. The people of Israel have the right to live without constant fear for their security and the people of Gaza have the right to live safely and in peace. The most important thing is that we bring this current conflict to an end and that steps are taken to make this ceasefire durable so that it is not repeated. That is the only way in which we can ensure the safety and security of all people in the region and make steps towards a longer two-state solution.

[Baroness Deech (CB)]

Does the noble Baroness agree that there is something distasteful about this concentration on numbers and proportionality? In recent months, some 2,000 Palestinians have been killed in Syria without, I gather, much notice being taken in this House. The reason for the civilian casualties in Gaza appears to be that Hamas hides its weapons and rockets in schools, mosques and hospitals and is prepared to use civilians as a shield. One simply cannot therefore make a parallel between the two. If a country has to defend itself, I cannot imagine what the answer is to proportionality when the entire population of Israel is only 6 million, including 1 million Arabs. I hope that the noble Baroness will encourage the Government to complain to UNWRA about the rockets hidden in schools and to the Red Cross about the use of civilians as human shields.

[Baroness Stowell of Beeston]

As I said when I repeated the Statement made by the Prime Minister in another place, we have been absolutely clear in our remarks to Israel about the needs for its response to be proportionate and to minimise any civilian casualties. The most important thing that we are trying to encourage is an end to this bloodshed on all sides, and we continue to press for an urgent agreement to that end.

[The Lord Bishop of Coventry]

My Lords, perhaps I may return us to the tragic event of the downing of flight MH17 to join others in expressing deep and profound condolences to the families, friends and colleagues of those who died. In particular, I express the deep sympathies of those of us who spend quite a lot of our time caring for those who are bereaved and, in so doing, I pay tribute to the Protestant, Anglican, Old Catholic and Roman Catholic ministers who have been trying to care for the stricken families at Schiphol Airport. They have a very demanding task.

As we have heard, the bereaved are suffering from a deep and dreadful trauma. The deaths were sudden and led, of course, to shock on the part of those bereaved. They were inflicted by violence, leading to anger. They took place in foreign lands where, as we know, the bodies are out of reach—not only that but lying around in the heat, in body bags, in full view of the world’s media. Now, as the noble Baroness, Lady Royall, powerfully explained, they are being disregarded and disrespected. It is a psychological, pastoral and spiritual nightmare of unspeakable proportions. My question is simply: will the Government continue to use appropriate means to ensure that the bodies are treated with dignity in this period and, of course, returned with urgency?

[Baroness Stowell of Beeston]

Our first priority over the last few days has been applying pressure to Russia to use what influence it has to ensure that what occurs is exactly what the right reverend Prelate asked for. While this has not yet been confirmed, I hear that there are now reports that the refrigerated train has left Torez and is now en route to Kharkiv. That is exactly the kind of progress we need to see continue so that people are able to grieve, while knowing that their families and friends are being treated properly and being looked after by the people who they would want to be doing so.

[Baroness Morris of Bolton (Con)]

My Lords, I declare my interests as set out in the register. At the beginning of this crisis in Gaza, my right honourable friend William Hague called for an immediate ceasefire and a fundamental transformation of the situation in Gaza. Can my noble friend the Leader of the House say whether the Government are talking to Qatar to see whether it might be best placed to broker a ceasefire, following yesterday’s talks in Doha? Regarding the long-term fundamental transformation of Gaza, does she agree that economically active people seek peace and that all Palestinians should be free to trade, travel, hope and dream, and lead ordinary lives?

[Baroness Stowell of Beeston]

The Foreign Secretary is in contact with a range of countries in the region to try to progress the situation there. My noble friend is absolutely right that we need to ensure a durable ceasefire, so that all people who are desperately affected by this current situation find some peace and security as soon as possible.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, my first question is about the part of the Statement dealing with MH17. During the course of the weekend there were widespread reports that the black box had been removed from the wreckage of the aircraft, so that investigators—independent people—could not look at it. Do the Government have any independent evidence to indicate whether the black box has indeed been taken away already?

On Gaza, perhaps I may return to the question raised by my noble friend Lord Warner and referred to from the Cross Benches about proportionality. Proportionality is important in international law, so can the noble Baroness the Leader of the House tell us whether the Government believe that it is proportionate for Israel to have taken 500 lives and made 83,000 people homeless as a result of its recent action? Do the Government believe, since the Prime Minister raised this question with Mr Netanyahu, that his response has indeed been proportionate?

[Baroness Stowell of Beeston]

On the first part of the noble Baroness’s question, I cannot stress enough how much the international community is united in its call for a swift, transparent and credible investigation into the incident in Ukraine. We understand that there were two black boxes on board the aircraft and are aware of reports that one of those black boxes has now been found. We urge that this should be passed on to the International Civil Aviation Organization at the earliest opportunity. It is so important that all the proper and relevant authorities are able to do their work in response to this situation.

As to the noble Baroness’s question about Gaza and Israel, as my right honourable friend the Prime Minister said, he was clear during his call last night to Prime Minister Netanyahu that he should do everything to avoid civilian casualties, exercise restraint and help find ways to bring that situation to an end.

[Lord King of Bridgwater (Con)]

My Lords, while I join my noble friend in offering the deepest condolences to all those who have suffered from this appalling outrage with the Malaysian airliner, there was one sentence in her Statement that I found difficult to accept. It was when the Statement said:

“It is unlikely that even the separatists wanted this to happen”.

This is a disaster for everybody concerned and it has obviously made the position of President Putin even more difficult than it was before. The separatists are now pilloried right across the world and, if they are responsible for this, have done their own cause enormous damage as well.

This has happened against a background of bombing of this area by the Ukrainian air force and of the separatists shooting down some aircraft in self-defence. It is important to recognise the situation in which this has happened. I say in passing that I find it extraordinary that the European organisation responsible for flight safety gave airlines permission to fly over this area. Having said that, two weeks ago, while on their way to the World Cup, Angela Merkel and President Putin called for Ukraine and the separatists to stop fighting and start talking. That is the background against which this has happened. There must be a cessation of violence and an opportunity must be given for an independent inspection of what has happened. Efforts must be made at the earliest possible opportunity to get constructive talks on the tragedy that has followed this episode of violence.

[Baroness Stowell of Beeston]

As the Statement says, even the separatists did not want to target a commercial airliner: that is the point we are trying to get at. It is not a question of evidence being gathered to show that there was that intent; it is about the aircraft that they were focusing on. As regards my noble friend’s point about the fly zone above this area, it is important to note that the controls that were in place extended to a specific height, and that this commercial airliner was above the height determined to be safe. However, those controls have now been extended and there is a complete lockdown of the whole area at any height. My noble friend rightly said that the fighting needs to stop and talking needs to start. We are very clear that Russia needs to take steps to de-escalate the action in Ukraine. We need to ensure movement to bring security to Ukraine very soon.

[Lord West of Spithead (Lab)]

The shooting down of MH17 was clearly an unexpected atrocity. However, we must not be surprised at that because atrocities happen every day in civil wars, as we see in Syria and Iraq and saw in Bosnia. I am afraid that these irregulars will behave in a very inhumane way: that is what happens in civil wars. There is no doubt whatever that Putin has been caught on the back foot. He has been caught out in this situation for the second time. The first time was the revolution in Kiev, where he was very badly caught out. We must think very carefully about how the Russians perceive this. They conflate NATO, the EU and America and see them all as a threat. We never gave any credit whatever to the fact that Crimea has a special status. There is no love lost between me and Putin, but does the Minister really believe that forcing him even further into a corner will help the settlement within Ukraine? Would it not be far better to aim to stop all fighting and have a conference whereby we can leave Russia primarily to broker some sort of agreement because, in the end, the Minister must agree, it is only with the Russians that we can get peace in this region?

[Baroness Stowell of Beeston]

The UK has been at the forefront of calling for a ceasefire, for the fighting to stop and for Russia to de-escalate the situation. However, because of the aggression that Russia has shown, we believe that it is vital that we also show strength in response to that, and that we are clear about the sanctions that are necessary to try to resolve this situation.

[Baroness Falkner of Margravine (LD)]

My Lords, will my noble friend please explain what is meant on page 6 of the Statement, where the Prime Minister says:

“Those criticising Israel’s response must ask themselves how would they expect their own Government to react if hundreds of rockets were raining down on British cities today”?

Will she tell me—perhaps in writing if she cannot tell me now—what is meant by drawing an analogy between what might happen in British cities with what is happening between Israel and Palestine, particularly what is happening in Gaza this week? I respectfully say to her that, even at the height of the Northern Ireland Troubles, this was not an analogous situation, and any idea that it is disregards the history of the Middle East over 100 years. Finally, will she also say—in writing if she cannot do so now—whether she recognises the importance of proportionality and distinction in international humanitarian law?

[Baroness Stowell of Beeston]

The Prime Minister’s Statement is very clear in the terms that he is using. We are absolutely clear that the loss of any civilian life is an absolute tragedy. We are also clear that the first step to bringing about peace is for Hamas to stop firing rockets at Israel. As I said when I repeated the Statement, Israel has taken steps to introduce a temporary ceasefire that was not reciprocated by Hamas. Clearly, the Government are looking to ensure that all sides in this argument work together to bring forward peace. That is what we want to see happen as soon as possible.

[Lord Kilclooney (CB)]

Given that the EU Foreign Ministers will meet tomorrow, has the Minister any good reason to expect that they will reach a unanimous decision that will be effective?

[Baroness Stowell of Beeston]

As regards what has happened over the past few days, there was a meeting last week of the European Council where it was agreed that further steps were necessary in terms of strengthening sanctions. That decision was taken before the tragic incident on Thursday. We have been talking to our European partners throughout the weekend and have had extensive discussions. My right honourable friend the Foreign Secretary will work very hard to ensure that there is clarity tomorrow and that further steps are taken in accordance with what I have already said we believe is necessary—to force Russia to withdraw and de-escalate.

[Lord Marlesford (Con)]

My Lords, on the—

[Lord Campbell-Savours (Lab)]

My Lords—

[Lord Popat (Con)]

May we hear from this side? The noble Lord will have an opportunity to speak later.

[Lord Marlesford]

My Lords, on Russia, I welcome the Prime Minister’s suggestion that it is time to make our power, influence and resources felt. May I make a practical and proportionate suggestion that one measure would be to suspend all civil air flights to and from Russia? Ideally, this would cover the whole EU and the USA. Although, Mr Putin would, of course, find methods to fly people in and out of Russia, it would be at a heavy cost, both economically and in terms of Russia’s status in the world.

[Baroness Stowell of Beeston]

I take note of the proposal put forward by my noble friend. I do not believe that that is one of the specific steps that we are currently considering but I am happy to talk further to him about his idea.

[Lord Campbell-Savours]

My Lords, will the noble Baroness reply by not reading the reply to a question she has not heard? She seems to be reading all these answers. Will she answer the question asked by my noble friend Lord Warner earlier about why there is such a big difference between the way that Israel is being treated in the crisis that it has created by occupying the West Bank of the Jordan and the far more vigorous treatment being meted out to the Russians when they have not even invaded a country?

[Baroness Stowell of Beeston]

I have been very clear in responding to the points raised in the course of this Statement. In respect of Gaza, there are three situations that need to be dealt with. The first concerns an immediate ceasefire between Hamas and Israel, and stopping the fighting and bloodshed that are occurring there. Then we need a durable ceasefire to ensure that this kind of situation is not repeated; all parties involved in that need to play their part. Clearly that is the only way of our then moving towards the longer-term situation of ensuring that the Middle East peace process has some prospect of succeeding.

[Lord Steel of Aikwood (LD)]

Will my noble friend confirm that of the more than 500 civilians killed in Gaza, more than 100 were children? Will she therefore give the figure, which has been repeatedly asked for, for the number of Israeli citizens killed by Hamas rockets so that we can understand what the word “disproportionate” means? Will she accept from me, as someone who visited Gaza in the aftermath of Operation Cast Lead, that that amount of carnage and mayhem manifestly did not stop the rockets coming into Israel then, and nor will this? That is surely the point. There is no substitute for the painstaking talks of the kind in which John Kerry was engaged to get Hamas to stop violence against Israel and to get Israel to cease its settlements in the West Bank.

[Baroness Stowell of Beeston]

The number of Israeli civilians killed and injured by Gaza rockets amount to two killed and 13 treated for shrapnel-related injuries; 13 Israeli soldiers have been killed during the ground operation. But as the noble Baroness, Lady Royall, said in her response to my Statement, this is not about comparing numbers. All loss of life is a real tragedy. It is important that we acknowledge that the rockets being fired from Gaza into Israel are indiscriminate. Clearly, we want Israel to respond proportionately and minimise the loss of civilian life. More than anything, we want this situation to stop and the bloodshed to end. That is possible only when both sides cease fire. Certainly, the most important first step in that would be for Hamas to stop firing its rockets.

[Lord Stoddart of Swindon (Ind Lab)]

On Ukraine, is it not reprehensible that the tragedy of MH17 is being used for so much international political rhetoric? Would it not be better to have some tact and diplomacy? We have heard that the Prime Minister had a 30-minute conversation with Mr Putin. We have heard what financial sanctions were proposed, but presumably during the 30-minute telephone call Mr Putin had something to say. Will the Minister tell us exactly what he said and whether he confirmed that he wished to have an international investigation into the downing of MH17?

[Baroness Stowell of Beeston]

The current calls for Russia to de-escalate and the sanctions that we are putting in place are in response to Russian activity in Ukraine, which predates last week’s incident. It would be wrong of the noble Lord to suggest that all our efforts being made now are only on the back of the terrible crime committed on Thursday. What happened on Thursday has focused minds, but it has not led to the start of our demands for Russia to take all the necessary steps to withdraw from its aggression in Ukraine.

As for what President Putin said in response to my right honourable friend, I do not have details of that. I can say to the noble Lord that clearly the conversation that the Prime Minister had with President Putin has had some influence. Thankfully and finally, we are starting to see some co-operation from the separatists in Ukraine to help ensure that the bodies there are treated with the dignity and respect that they deserve, that the right authorities are properly able to do their job, and that we can get to the bottom of just what happened.

[Lord Cormack (Con)]

My Lords, building upon the wise words of my noble friend a moment ago and on the extremely sensible comments of the noble Lord, Lord West, does my noble friend accept that if we are not sensible we shall drift into another cold war from which no one will benefit? Could we not ask the Secretary-General of the United Nations to summon a special conference of all the parties to address the Ukrainian situation: to ensure the territorial integrity of Ukraine, a proper recognition of the legitimate interests of Russia, and an end to this drift—as I say—into a new cold war?

[Baroness Stowell of Beeston]

My noble friend is right to raise the United Nations. I repeat what I have already said: the UK is playing a leading role to secure UN action. There is a meeting of the UN tonight. There is an Australian-led draft resolution, which the United Kingdom very much supports. Along with Australia, we have accelerated discussions on this, which welcomes a Ukrainian-led investigation, containing strong language on access to, and dignity in dealing with, the bodies and incorporating tougher UK language from the draft press statement.

[Lord Williams of Baglan (CB)]

My Lords, in the course of a week we have seen two terrible tragedies claiming hundreds of innocent lives. Other noble Lords have suggested that behind both crises, whether in the Middle East or in Ukraine, we need to see a more proactive diplomacy that is not limited to 30-minute telephone conversations or meetings of the EU Council, but one that resembles diplomacy of the past that confronted international crises. In the dark days of the Cold War, high-level western envoys went to Moscow to meet Kruschev or Brezhnev to address the great crises of the day and try to find solutions. We are not doing that in the case of either Ukraine or the Middle East. Of course it is awful that lives been lost in both cases, but we need to find a diplomacy that meets these crises.

In the case of the Middle East, diplomacy has collapsed. Perhaps it is no accident that events in Gaza follow on six weeks after the collapse of the Middle East peace process. We saw the resignation of the American envoy, Martin Indyk, because of the unwillingness of the Government of Prime Minister Netanyahu to come to an agreement with President Abbas. This is the background to this crisis and this Government must join with others in looking for diplomatic ways forward. Prime Minister Netanyahu’s Government have avoided political solutions. We must impress on him the need for those.

[Baroness Stowell of Beeston]

For the United Kingdom, my right honourable friends the Prime Minister and the Foreign Secretary are engaged in diplomatic talks and processes, and I assure all noble Lords that these will continue and that all our energies will be applied to achieving the kind of resolutions that we think are important for all parts of the world where there is conflict.

[Lord Popat]

My Lords, the time is up for the Statement.

Criminal Justice and Courts Bill

Monday 21st July 2014 Lords Chamber

Committee (2nd Day) (Continued)

19:20

Amendment 41

Moved by

[Lord Foulkes of Cumnock]

41: After Clause 28, insert the following new Clause—
“Assault on workers selling alcohol
(1) A person who assaults a worker who is required to enforce or comply with the Licensing Act 2003—
(a) in the course of that worker’s employment, or(b) by reason of that worker’s employment,commits an offence.(2) In this section—
“worker selling alcohol” means a person whose employment involves them selling alcohol under the provisions of the Licensing Act 2003;
“employment” in this context means any paid or unpaid work whether under contract, apprenticeship, or otherwise.
(3) A person who is guilty of an offence under this section is liable—
(a) on conviction on indictment to imprisonment for a term not exceeding two years or an unlimited fine (or both),(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory minimum (or both).”

[Lord Foulkes of Cumnock (Lab)]

My Lords, we now move away from great events around the world to rather more mundane matters here at home. None the less, they are very important matters. Noble Lords will recall that last year my colleagues in another place and I in this House moved an amendment to the Anti-social Behaviour, Crime and Policing Bill which would have created a separate legal offence for assaulting a worker in the course of his work. Our goal was relatively simple; it was to create a new, tougher penalty for assaulting people when they are carrying out their work which would encourage prosecutions, act as a deterrent and, most important of all, do justice to the physical and mental suffering of the hundreds of thousands of workers who are assaulted in the course of their employment. Unfortunately, although many noble Lords, including Cross-Benchers and even members of both parties in the coalition, were sympathetic to the general aims of my amendment, it did not succeed.

One of the main concerns raised at the time was that the amendment was too wide in its scope and would cover so many workers that it would be ineffective. I have taken all those criticisms on board in drafting the amendment before the Committee today. Once again, I have had the help of the Union of Shop, Distributive and Allied Workers, one of the most effective unions in the country looking after the interests of its many members in shops and centres around the United Kingdom.

This amendment, unlike the previous amendment, focuses specifically on those workers who are required to enforce and comply with the Licensing Act 2003. They are acting in a policing capacity and if they do not carry out what they are required to do, they are committing an offence. This amendment would create a separate either way offence of assaulting a shop or bar worker selling alcohol. In doing so, it also takes into account another criticism made by the Member of Parliament who is now the new Solicitor-General when a similar amendment was tabled by my colleague, Labour’s shadow Justice Minister, Dan Jarvis. The right honourable Member for Swindon South, our new Solicitor-General, expressed sympathy with the aims of the amendment, but commented that if we were truly serious about higher penalties such an offence should be either way, not summary as was originally intended. I hope, therefore, that my seriousness on this issue has been affirmed to the Solicitor-General, and to those in his party in this House and elsewhere who may have already been sympathetic to the aims of the amendment, as I have taken on board the fact that it should be an either way offence.

For noble Lords who are still sceptical of the case for granting workers who sell alcohol special protection through a separate criminal offence and those leaning towards supporting the amendment, I shall give one example—I have many more, but because of time and because I knew there are other amendments I shall give just one—which captures the issue the amendment seeks to resolve. It is the story of Barry and Teena who own a pub in Leek called “The Priory”. One Sunday night, after the bar had closed, revellers approached Barry in order to purchase some more drinks. It happens again and again like that. Barry rightly refused to serve them. He would have been breaking the law if he had served them. At that stage, one of the revellers threw a glass at Barry’s arm, jumped over the counter and punched the couple’s son, Mark, in the face, splitting his lip. Teena came out to see what was happening and was immediately assaulted by a woman standing behind the bar. Her nose was broken, and when the blood was gushing out of her nose and face, she suffered an asthma attack and needed to be hospitalised. The police arrived, and two people, one man and one woman were arrested. Astonishingly, both were let off with just a caution after that attack. Barry and Teena were two people upholding the law on our behalf, and if they had not done that, they would have been breaking the law. I have other stories, and perhaps I will have another opportunity of telling them.

Why do we need the amendment? This tragic episode and others underline three things which are currently wrong with our criminal justice system. First, and most importantly, the incredibly dangerous and vital public function of workers who serve alcohol goes completely unrecognised. These are men and women who are charged, like the police, with enforcing the law. They must refuse service to those who are underage or too intoxicated. If they refuse to do so, they face legal action, and even the potential loss of their licences and thus their livelihoods. Unlike the police, they have no additional protection for the additional service and for the grave danger it puts them in. What they receive, like all workers, is a clause in the sentencing guidelines—noble Lords who took part in the debate last year will recall this—which makes the assault of a worker providing a public service one of 19 aggravating factors.

There are two problems with the current regime. First, it fails to recognise the additional danger that those who have to sell alcohol face vis-à-vis workers in most other professions and their vital contribution to public order and safety. According to the Health and Safety Executive’s latest figures, alcohol was the trigger to threatened or actual violence in 38% of cases. The second problem is leniency. The regime has produced a system with disincentives to prosecution and which is too lenient. Unfortunately, the fact is that until we start acknowledging the service done by and the added danger faced by those who serve the public alcohol, in a similar manner to how we do with the police, prosecutions will fail to reflect the seriousness of the crime, and victims like Barry and Teena will continue to be deprived of proper justice. At present, as the assault of workers who sell alcohol usually falls into the category of common assault, with the relatively lenient punishments on offer, it results in the Crown Prosecution Service deciding that it is not worth prosecuting. This has been the experience of a range of groups which are supporting my amendment: USDAW; National Pubwatch; the Wine and Spirit Trade Association; the Retail of Alcohol Standards Group, whose members include almost all major supermarkets; and the Association of Convenience Stores. They all support the amendment. Lenient sentencing and a lack of prosecutions feed into a vicious cycle whereby incidents go unreported as workers lose faith in the justice system. Action must be taken.

My amendment will address the problems in three ways. First, by creating a separate offence for assaulting someone who sells alcohol, one that carries a harsher penalty of either up to six months in prison and a fine of up to £500 for those charged summarily—I take what was said earlier about short prison sentences—or, up to two years in prison or an unlimited fine for those convicted on indictment at the Crown Court, the amendment recognises the additional danger faced by this set of workers and their special public service. Secondly, in doing so the amendment will create a greater deterrent through stiffer penalties. I do not want this to happen. I do not want people to be committing this offence and filling up the prisons with all the extra costs involved. That is why having these serious penalties will mean that it is less likely to happen because of the greater deterrence. Thirdly, I hope it will encourage more prosecutions as a new separate offence is easier to determine than common assault, as the Minister knows. I am very pleased that he is dealing with the amendment today. We are not related, but I have developed a friendship with him since he joined this House, and I know he takes his work and this kind of matter very seriously indeed. Common assault, which is currently how such acts are classified, has a number of mitigating and aggravating factors. As this carries stiffer penalties, it would incentivise the CPS to make more prosecutions.

In conclusion, I believe that the amendment would offer greater protection to workers selling alcohol—something that it is often all too easy for us in the comfort of this Chamber to take for granted. The time has come finally to acknowledge the grave danger often faced by those who serve us and enforce our law in the pubs, clubs, bars and shops that all of us frequent and love so much. The time has come for those of us in this Chamber who benefit from their actions to do something to acknowledge that and return the favour to them. I have much pleasure in moving this amendment. I beg to move.

19:30

[Lord Kennedy of Southwark (Lab)]

My Lords, many years ago, I was a shop worker. Although I never sold alcohol, I certainly recall having to deal with difficult situations. I was then a member of USDAW and active in the trade union so I am delighted to speak in support of the amendment today. USDAW is one of the most effective unions operating in the UK today. For many years, it has run its Freedom from Fear campaign, which raises the issue of shop workers put in difficult and threatening situations just because they are going about doing their job. It has put proposals to the Government and others to ensure that shop workers—in this case, people working in pubs, bars and clubs—can do so free from fear of attack.

The amendment would create a specific offence of assaulting a bar or shop worker selling alcohol. This group of workers has a unique set of obligations put on them by the Licensing Act 2003. I and other noble Lords think that they deserve similar protection while they seek to enforce the law on our behalf. My noble friend has taken on board the comments made by Mr Robert Buckland in the other place. As he mentioned, he has just been made the new Solicitor-General in the Government.

I hope that the Minister will not tell the House that we already have adequate protections for these workers anyway. I certainly do not believe that it is the case. They are certainly some of the most vulnerable workers working in the retail and service sector. If he is not prepared to accept the amendment today, I hope he will agree to meet me, my noble friend Lord Foulkes, representatives from USDAW and all the retail organisations which, as my noble friend said, are backing this amendment, and that we can persuade him that workers selling alcohol need this additional protection.

Someone working with the public is especially traumatised by an attack at their place of work. They usually have to go back into that situation, facing a constant stream of strangers, any of whom could become violent. Reports of anxiety and panic attacks on returning to work after an assault, with the constant worry that the next person walking in through the door could be their attacker, are not uncommon.

We are all aware of the trigger that alcohol can be to violent crime. Figures have been produced by the police, the Health and Safety Executive and others that prove that; it is not in dispute. Workers who serve alcohol have to enforce the law, as my noble friend says. They are required to obtain proof of age from the purchaser, to refuse to serve alcohol to someone who is drunk and aggressive and to refuse the proxy sale of alcohol. The staff have no option; they have to enforce the law. These actions are all major triggers for assaults on staff, but if they are not undertaken the staff could be liable for prosecution themselves, resulting in a heavy fine, maybe the loss of their job and possibly the loss of the licence for the business. We should also remember that these people could also be working late at night, possibly on their own, in a corner shop or a petrol station. Some workers are too traumatised to return to the same job and lose their livelihood in addition to the physical effects that they have had to endure. Victims rightly feel that sentencing should reflect those effects on their lives.

The sentencing guidelines for all types of assaults state that that an offence,

“committed against those working in the public sector or providing a service to the public”,

is an aggravating factor that adds to the seriousness of the crime. Creating a specific offence would send a clear message that violence against somebody serving the public is not acceptable. Preliminary evidence from Scotland where a similar measure was introduced for emergency workers shows that that the number of such incidents has declined since the legislation was introduced. That is another reason why we are better together, so that we have the experience of our colleagues in other parts of the United Kingdom.

I want to mention one incident that happened to a team leader at a checkout at a large supermarket in Rochdale. That store had only one security guard. The team leader had to step in and assist whenever the checkout person received abuse or had a problem. In October last year, that team leader went to help when a gang of youths had been refused the sale of alcohol and were racially abusing the security guard. The youths went away, the incident was reported, but when the police arrived they had already left. The next evening another security guard was on duty and he shouted for help as the same gang of youths approached the store. One youth started to spray liquid in the face of the security guard, and the team leader ended up in a scuffle with one of the youths. He woke up in hospital eight days later, having suffered a severe heart attack, probably caused by a heavy kick to his chest. His wife had been told that he was unlikely to make it. He had been kicked in the face and lost some of his teeth and his colleagues who saw the attack had to be counselled for trauma. The attack has devastated his life. His heart has to be constantly monitored and he struggles even to walk to the local shops. He cannot do things that he used to enjoy doing with his family, including playing football with his son. He has not been able to go back to work; the doctor has said that he will be off work for at least 12 more months; his take-home pay used to be £1,300 a month, but he now receives sick pay of just £300 a month. Two males and one female took part in the assault; one youth received a small fine, the woman has not been found, and the other youth has been charged—the case will be heard in the autumn. We should all be concerned that, unless people who assault front-line staff receive adequate sentences, this sort of incident will continue. There was another case of a landlord in Bolton who refused to serve a young man whom he knew to be underage. When he took his dog out for a walk that night, the youth beat him up, kicking his face when he was on the ground and causing extensive cuts and bruising. The police arrested him and the next day he got a caution.

We all owe shop workers, particularly those who serve alcohol and have to enforce the law, proper protection. They do not get it at present and it is time that they did.

[The Lord Bishop of Chester]

My Lords, I have considerable sympathy for the amendment, although I wonder how it will interact with the remainder of the law on assault if this is criminalised in a specific way. I declare an interest in that I used to be a publican. When I was employed in a university, one of the members of staff had to go down to the magistrates’ court and swear that they were a fit person to keep order. That is the only time when I have been into a court of law in my life, and the magistrates were not quite sure that this young clergyman would be able to do so. My main task was to prevent the students drinking the profits rather than sorting out any brawls.

I would like the Minister to comment on the two examples that we have been given of the use of caution where assault takes place. If a publican’s wife was assaulted and her nose was broken and this simply resulted in a caution, that is widely held to be inadequate as a legal response. I hope that when he comes to reply the Minister will deal with that point, especially if he is not prepared to accept the amendment.

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

My Lords, it has been a short but informative debate, informed by experience from quarters where we do not necessarily expect it to be shown, but none the less welcome for that.

The amendment would make it an offence to assault a person who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way, with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.

The House will of course join me in condemning assaults on anyone who comes into contact with the public as part of their work. No one should be expected to face violence because they are simply doing their job. In particular, it is essential that the criminal justice system deals adequately with violence against people who are engaged in the licensed sale of alcohol—for instance, in pubs, off-licences, supermarkets or corner shops. However, the Government do not at the moment agree that creating a new offence is the right way to combat this unacceptable behaviour. The Government are committed to creating new offences only where it is considered necessary, there are no other reasonable options available, and there is evidence to support the need for a new offence. I will endeavour to explain why we do not believe that is the case in relation to assaults on workers enforcing or complying with the Licensing Act 2003.

There are already a number of offences that criminalise disorderly and violent behaviour, and which apply in cases of violence towards such workers. They cover the full spectrum of unacceptable behaviour, from using abusive language to the most serious and violent offences. In every case referred to the Crown Prosecution Service where there is sufficient evidence to justify a prosecution, prosecutors must then go on to consider whether a prosecution is required in the public interest. The section of the Code for Crown Prosecutors giving guidance on the public interest test states:

“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.

If the evidence is there and the code is satisfied, the CPS will prosecute.

Moreover, sentencing guidelines, to which there has been reference, specify that where an assault is committed against someone providing a service to the public, whether in the public or private sector, this is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made clear in its guidance that that includes those who work in shops and the wider retail business and such people who might well be enforcing or complying with the Licensing Act 2003.

The noble Lord, Lord Foulkes, referred to the observations of my honourable friend Robert Buckland, now the Solicitor-General. It is not normal for a Minister to give advice from the Dispatch Box but the noble Lord, as an experienced parliamentarian, will know that the Solicitor-General and the Attorney-General are in fact the law officers responsible in the case of unduly lenient sentences and can themselves initiate an appeal to the Court of Appeal should sentences be regarded as too long. In fact anyone can refer those sentences for consideration by the law officers, so that is a matter that he may well wish to convey to USDAW if it is not already aware of that.

Currently, the only offences of assault on members of specific groups are the offences of assault on a police constable in the execution of his or her duty and assault on an immigration officer. Creating a new offence of assault on workers selling alcohol would single out this type of assault as the only one meriting a specific offence alongside assaults on these public servants. I do not believe that this can be justified.

Whoever the victim, the degree of seriousness of an assault should depend on the particular facts of the case. Why should it be worse or more traumatic for the victim for someone to be assaulted at work rather than on the bus going to work, or for that matter when locking the front door as a result of an intrusion into the home? Of course, where the evidence indicates a more serious offence than merely common assault, whoever the victim, more serious charges are available to the prosecution, such as assault occasioning actual bodily harm, which carries a maximum penalty on indictment of five years’ imprisonment or an unlimited fine, or both, or grievous bodily harm under the 1861 Act.

There was reference to the position of police officers, who of course occupy a very important role. The offence of an assault on a constable or an immigration officer is a separate matter, although interestingly the proposed “triable either way” offence of assault on a worker selling alcohol would carry a higher sentence in the amendment than the offence of assault on a constable. I think it is fair to say that assault on a constable in the execution of their duty tends to be used for minor offences, whereas if there is a serious assault on a police officer it will be charged under the Offences Against the Person Act.

Noble Lords referred to cases that are not proceeded with, rather surprisingly on the facts of one particular case involving Barry and Teena, as the noble Lord, Lord Foulkes, said. USDAW has highlighted many cases that never reach the courts because the police and prosecution decide not to prosecute. As the Committee will appreciate, the investigation and prosecution of cases is a matter for the police and the Crown Prosecution Service, and regardless of the existence of a particular offence it is ultimately a matter for them whether they decide to investigate and prosecute.

Reference was made to the creation in Scotland of a specific offence of assaulting an emergency worker and it was suggested that this had increased the prosecution rate and resulted in a decrease of such offences. That was raised by the noble Lord, Lord Kennedy. Of course I entirely agree with the comment that we are better together. Be that as it may, what one can say about that, and there has been some research into it, is that it is difficult to draw any conclusions. It may well be that these offences are now being prosecuted under the legislation covering assaulting emergency workers whereas previously they would have been prosecuted under the common law of assault. The figures prior to the creation of the offence in the 2005 Act do not distinguish between those assaults that were committed against emergency workers and assaults against other people. It may be right, but we suggest that we cannot draw anything from that.

While I would be very happy to meet the noble Lords, Lord Foulkes and Lord Kennedy, to discuss matters further, at the moment we are unpersuaded of the need for these further offences despite the variation from the amendment put forward on the Anti-social Behaviour, Crime and Policing Bill. In light of the points that I have endeavoured to draw to the attention of the House, I hope that the noble Lord will feel able to withdraw his amendment.

19:45

[Lord Foulkes of Cumnock]

My Lords, I am grateful to the Minister for replying in his usual courteous and helpful way, which I greatly appreciate and which I know the House generally appreciates. I was encouraged by three things that he said. First, he said that the Government do not agree at the moment, which indicates that they are open to looking at the issue further. Secondly, I liked the suggestion that he made about the Solicitor-General and the Attorney-General being able to appeal if sentences are too lenient. I will certainly draw that to the attention of USDAW and others.

There were other Members who wanted to take part in this debate. The noble and learned Lord, Lord Hope, wanted to be here and apologises for not being able to. He said that he would have raised the question about the experience in Scotland. The noble Baroness, Lady Coussins, and the noble Viscount, Lord Montgomery, also wanted to be here. We had rather a long debate earlier, for which I must say I take some of the blame. Only some—a very small part, in fact, I say to the Whip who was nodding rather too enthusiastically there.

Thirdly, the most helpful suggestion of all those that have been made came from my noble friend Lord Kennedy and was very kindly picked up by the Minister—that he is willing to meet a group, including my noble friend and myself, of USDAW and representatives of the trade to discuss this further. I will pass on that very kind invitation and I am sure that it will be taken up. In the light of all those helpful comments, I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Amendment 42

Moved by

[Lord Sharkey]

42: After Clause 28, insert the following new Clause—
“Disregarding certain convictions for buggery etc: making an application on behalf of another person
(1) In section 92 of the Protection of Freedoms Act 2012 (power of Secretary of State to disregard convictions or cautions), after subsection (1) insert—
“(1A) A person may make an application under subsection (1) on behalf of another person if that other person is deceased.”
(2) In section 93 of that Act (applications to the Secretary of State)—
(a) in subsection (2)(a), at the end insert “or if applying on behalf of a deceased person, the name and dates of birth and death of that person”;(b) in subsection (2)(b), at the end insert “or if applying on behalf of a deceased person, the name and address of that person at the time of the conviction or caution”.”

[Lord Sharkey]

My Lords, next Wednesday night there will be a late second promenade concert at the Royal Albert Hall. There will be only one work in this prom: “A Man from the Future” by the Pet Shop Boys, who I am sure are familiar to all your Lordships. The piece is based on the life of Alan Turing and is an orchestral biography for electronics, orchestra, choir and narrator.

The piece as it will be performed is different from its final draft, because after the final draft was completed Alan Turing was granted a posthumous royal pardon. This pardon, for homosexual acts that would not now be illegal, left some with mixed feelings. Andrew Hodges, Turing’s biographer, on whose work much of the libretto is based, said about the pardon:

“I don’t think it’s right in principle to make an exception for one person on the grounds of what they did for the State. It should be for everyone who was in that situation”.

Neil Tennant and Chris Lowe—the Pet Shop Boys, as your Lordships will know—will explicitly address this contradiction in the finale of Wednesday’s performance. They say:

“We had to rewrite the ending to point out that the convictions of tens of thousands of other men remain and that hasn’t been discussed”.

They are right to raise this issue. Under the dreadful Labouchère amendment of 1885 and other equally dreadful laws, 75,000 men were convicted of homosexual acts. These laws were eventually repealed in the 1960s.

In 2012 this Government did something to put right this injustice. We passed the Protection of Freedoms Act, which allowed all those convicted under those old statutes to apply to have their convictions disregarded. This would happen if it could be demonstrated that the acts for which they were convicted would not now be illegal. Of the 75,000 men convicted under the now-repealed Acts, 16,000 were still alive and could now apply to have their convictions disregarded. This provides real help and comfort for them, their families, relatives, friends and loved ones, and helps to put right a serious and enduring historical injustice.

However, this still leaves the 59,000 men similarly convicted but now dead. In March 2012 I tried to do something about this. I tried to amend the Protection of Freedoms Act, via the LASPO Bill that was then before us. I wanted to extend the right to have a conviction disregarded to apply to those 59,000 men. I wanted friends, relatives or supporters to be able to apply for a disregard posthumously on their behalf. I said then that I believed that this simple extension was fair and right in principle. I wanted equality of treatment for all those convicted under the cruel Labouchère amendment and other laws, whether alive or dead. I believed then, as I still do, that this would go some way towards making amends to the many thousands of men who were cruelly and unjustly persecuted simply for being gay.

The Government were not persuaded. The Minister said in reply:

“I do not believe that the provisions for disregarding convictions, which are concerned with the practical consequences of conviction, are an appropriate means of putting right the wrongs done to people who are no longer alive to suffer those consequences. As my noble friend himself points out, the numbers involved are potentially very large”.—[Official Report, 20/3/12; col. 876.]

This seems to be very mean-spirited and wholly legalistic. It entirely fails to take into account the feelings of friends, relatives and supporters of those convicted but now dead. It fails entirely to acknowledge a moral duty to help put right a serious injustice. It also devalues the disregard for those convicted and still alive. The purpose of the disregard is not just to help with the practical consequences; it is also to publicly acknowledge a very grave injustice.

The last sentence of the Minister’s response seemed to imply a worry about being overwhelmed by applications for a disregard. I thought that very unlikely. Now there is some concrete evidence to show exactly how unlikely it is. The Protection of Freedoms Act was commenced in October 2012. In a Written Answer of last Thursday, my noble friend Lord Taylor of Holbeach gave the latest figures for application for disregard. There are 16,000 men who may apply. Since the Act commenced, in total 147 have applied. Of these, 13 applied in the last three months. This is not an avalanche. The MoJ has confirmed to me that it is not able to put a cost on processing these applications because they have been dealt with within existing resources.

In conversations I had with the Minister and his officials in 2012, the MoJ raised another objection to the idea of a posthumous disregard. It was concerned that many of the posthumous cases might be so old that there would be no safe way of demonstrating that the conviction in question involved consensual and over-age sex. This did not seem to me at the time to be a valid argument and it still does not. The essence of the application process is that the applicant must supply evidence to convince the Secretary of State that the historical offence would not now be an offence at all. That applies to the living. It would also apply to applications on behalf of the dead.

Our amendment simply sets out to give equal treatment to all those gay men convicted under the cruel and homophobic Labouchère amendment and other Acts. It sets out to treat the dead and the living equally. It would bring closure to an extremely unhappy period in our criminal law. It would give comfort to the relatives, friends and supporters of those gay men convicted but now dead. It would help to put right a serious historical injustice.

I hope that this is an uncontroversial measure and that my noble friend will now take a sympathetic view. It would be very good to be able to attend Wednesday’s prom in the knowledge that we had been able to bring a satisfactory end to this long-running injustice.

[Lord Lexden (Con)]

My Lords, I was very glad indeed to append my name to this important amendment. My noble friend Lord Sharkey has explained its aims and objectives in full and with his customary clarity.

As he made clear, a number of sexual offences have been removed from the statute book in recent years, reflecting in many cases a strong belief that they should never have been crimes in the first place. As my noble friend explained, Parliament has now made it possible for those convicted of such offences who are still alive to apply to have their convictions disregarded. My noble friend’s amendment would enable such applications to be extended so that they could be put forward on behalf of those who are dead.

My noble friend has called for this extension before. Concern has been expressed that it might lead to a flood of applications. That seems extremely unlikely in view of what has happened now that living people have the right to have their convictions disregarded. No large number of applications has been lodged. There is therefore no reason to suppose that the right would be widely invoked by the families and friends of those who had their reputations blackened in their lifetimes but would not have been hauled before the courts at all if lawmakers in the past had not from time to time made unfortunate decisions. Parliament has recognised that that should be put right as regards the living. It should now extend that principle to cover all who suffered grave hardship, as the amendment provides. Justice demands it.

Our country’s lawmakers never blundered more seriously in the sphere of sexual offences than when they passed the Criminal Law Amendment Act 1885. As a historian of the late 19th century and co-author of a book on the very year in question, I never cease to deplore what happened in a thinly attended House of Commons in the small hours of 6 August 1885, with the Summer Recess looming. It was to prove to be a fateful date in the history of English criminal jurisprudence. Suddenly, without warning or anything resembling adequate discussion, homosexual men were made subject for the first time to harsh penalties for purely private sexual activity that was deemed to be grossly indecent.

It is well known that the legislation as introduced into Parliament had nothing whatever to do with homosexuality. Without most people noticing, an amendment was brought forward by a wayward radical Back-Bencher, Henry Labouchère, which made indecencies between adult males, in private as well as in public, a punishable offence. Labouchère proposed a maximum penalty of one year’s imprisonment. To his eternal shame, the incumbent Tory Attorney-General, in accepting the amendment, doubled the penalty to two years, with or without hard labour, at the judge’s discretion. Thus was created the infamous “blackmailer’s charter”, as it was immediately dubbed, and thus was created a road of great suffering and hardship—a road that was, in Oscar Wilde’s famous words,

“long, and red with monstrous martyrdoms”.

It is not least because so many lives of great men such as Alan Turing, and others unremembered for public achievement, were wrecked as a result of that legislation that we should consider this amendment with favour. It would register and symbolise Parliament’s recognition that a grave mistake was made on 6 August 1885, when a malign change was hurriedly agreed and then passed into law without further consideration in either House of Parliament on 1 January 1886.

There are, of course, other reasons why the amendment should command support, but Parliament’s black day in August 1885 is for me one of the most compelling. I hope that the Government will accept the amendment.

[Lord Faulkner of Worcester (Lab)]

My Lords, I, too, have added my name to the amendment of the noble Lord, Lord Sharkey, because I am very happy to be a co-sponsor of his Private Member’s Bill to secure the pardon for Alan Turing, which fortunately needed to make no further progress in Parliament because the Government granted that pardon. I do not want to say any more, other than that I agreed with every word that the noble Lord, Lord Sharkey, and, indeed, Lord Lexden, said. This is a case that deserves widespread support. I hope that colleagues on my own Front Bench will support it and that the Government will respond.

19:59

[Lord Black of Brentwood (Con)]

My Lords, I am pleased to support my noble friend Lord Sharkey’s amendment. He has done all those who are committed to real equality for gay men and women, living and dead, a great service. I hope he has also ensured that Wednesday’s prom will be a sell-out, as indeed it should be.

I make three points in favour of what seems to be a sensible, proportionate and long overdue measure. First is the straightforward question of logic. If it is right that those who are alive can have quashed, under the Protection of Freedoms Act, convictions for a range of what were once sexual offences between consenting adults of the same sex, why cannot those who died before the law caught up with changes in society? To make a distinction between the living and the dead in this way seems to me to be wholly irrational.

Second is the question of equity and fairness. It is absolutely right that a pardon was granted to Alan Turing, whose tragic case served to highlight the plight of those who had criminal records for acts that should never have been crimes. However, what of the families and decedents of ordinary people? As the noble Lord said, there were up to 60,000 of them over the many generations when a sexual act between men was an offence. Benjamin Cohen, the campaigning publisher of PinkNews, which does so much to stand up for the rights of the gay community, made the point well in a letter to me:

“Almost as soon as the Protection of Freedoms Bill was passed, PinkNews readers questioned why those who had passed away could never have their name cleared, and the royal pardon granted to Alan Turing also posed many questions. Why him and not others, and not just famous people like Oscar Wilde?”.

That question needs to be answered. The noble Lord’s amendment does just that.

Finally, there is one other important point. The amendment sends a signal to the wider international community. My noble friend Lord Lexden and I, along with others across the House, have on many occasions raised the shameful treatment of homosexual men and women in the Commonwealth, where our poisonous imperial legacy still means that people of the same sex who love each other face prison and, in some cases, the death penalty when they display that love. We have done much in recent years to show those countries that we are absolutely setting our own house in order. The Protection of Freedoms Act and the equal marriage Act were hugely important parts of that process. Now it seems to me we have another opportunity to show the states that maintain repressive regimes how we have disowned the barbaric part of our past, ensuring that those who suffered as a result of that path and their families will benefit from the equality that now exists, even in death. We can then urge that those states too should begin what will be a long and slow process of decriminalisation. The amendment, which I hope the Minister will support, would be a potent symbolic act in that quest.

I was recently rereading EM Forster’s great novel Maurice, which centres largely on the issues of historical importance raised by the amendment. Forster’s characters, one of whom was imprisoned for an act of so-called gross indecency, lived in the shadow of that terrible injustice. All those who were sentenced to imprisonment with hard labour around the time that novel was written would now be dead, taking their shame, guilt and, in so many cases, criminal record with them to the grave. Forster said on the front page of his masterpiece, “This book is dedicated to happier times”. For people such as him and those ordinary people he wrote about, happier times never arrived. However, they are here now and the amendment is our opportunity to do right by those who were not as lucky as us.

[Lord Beecham (Lab)]

My Lords, I support the noble Lord’s amendment, but I have a slightly left-field suggestion to make. Part of the problem the Government appear to have is the process of dealing with applications—possible costs and all the rest of it. Would it not be possible, instead of requiring people to apply on behalf of the deceased, for the Government to legislate to disregard the convictions of anybody convicted for conduct which would not now be an offence? That would not involve individual applications, their processing and all the rest of it, but would be a blanket amnesty for anything which would not now be a criminal offence. I put forward that suggestion for consideration. I do not expect the Minister to leap at it with any more enthusiasm than he usually leaps at my suggestions. I see the noble Lord is nodding that he too may be interested in it. It is a suggestion he might care to look at. Perhaps we can consider it on Report.

[Lord Faulks]

My Lords, this has been a short, very well informed and powerful debate. I pay tribute to my noble friend Lord Sharkey and others for all they have done relating to Alan Turing and to the amendment to the Protection of Freedoms Act. That Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people aged over 16. The House is grateful too to my noble friend Lord Lexden for his usual accurate and illuminating historical analysis of the origins of this sad state of affairs, which gave rise to so many convictions and caused so much unhappiness.

A disregard results in a person’s relevant convictions being removed from the records held by the police and the courts. Those convictions will therefore no longer appear on a criminal records check and the individual never has to declare them, in any circumstances. However—this is where the amendment is concerned—where someone has died, the intended effect of these provisions would apply. The provisions in the Protection of Freedoms Act are designed to help living individuals get on with their lives free of the stigma of the disregarded offence. I fully appreciate and sympathise with the intention behind the amendment, but the Government are concerned that there would not be a practical benefit to the change. A disregard would not allow the applicant, on behalf of a deceased person, to say that the deceased person was incorrectly convicted, nor that he or she has received a pardon. It is important to remember the rationale that lies behind this. The objective of the Protection of Freedoms Act, in disregarding certain offences, is that they should no longer affect a person’s life or career. The intention is to support living people who are disadvantaged when they apply for work, rather than to set the record straight.

The Government are still concerned that such an amendment would introduce a disproportionate burden on public resources; reference was made to a similar answer given from the Dispatch Box, not by me but by another Minister. For living people, the Protection of Freedoms Act will amend the data used for criminal records checks for living people. When someone is deceased, the offence is more likely to have taken place prior to the establishment of the National Policing Improvement Agency’s names database. Identifying appropriate records would be a lengthy, expensive and uncertain task. There is less certainty that any records can be identified, and those that are found may be insufficient to be sure that offences were consensual and with a person aged over 16.

The Government are concerned this would place a disproportionate burden on existing resources at the Home Office and on the police service. My noble friend Lord Sharkey referred to the answer he was given by a Home Office Minister to a question about the number of people who had made applications, following the estimate of 16,000. I am told that it is true it has now risen to 192 from 185. However, noble Lords will appreciate that departments are operating under severe financial restrictions. While we believe that the cost of dealing with applications from those whose lives continue to be affected is justified in the current climate, we cannot agree that costs, which we believe will be significantly higher for each application, could be justified in trying to deal with the records of those who have died. In our view, the limited resources should be directed at those who continue to have difficulties as a result of their conviction or caution for these offences. I need hardly stress that there is a difference between a pardon and a disregard.

The noble Lord, Lord Beecham, made an interesting, bold suggestion. He rightly predicted that I was unlikely to swallow the suggestion from the Dispatch Box, sincerely though it was made. My initial reaction is that, if there were to be a blanket amnesty, as I think he was proposing, we would need to go through this case by case to establish whether this act was consensual and therefore within the scope of the Act.

Therefore, while having considerable sympathy with all that lies behind the amendment, the Government are still not in a position to accept it as tabled by my noble friend Lord Sharkey. However, I appreciate that there is a feeling that something ought to be done to right a historic injustice. I can certainly—without, I hope, raising any expectations—at least agree to facilitate a meeting with the Minister to discuss this matter further. However, I emphasise that I cannot raise expectations and the position at the moment is precisely as I have outlined it. In those circumstances, notwithstanding the arguments that have been put forward, I hope that my noble friend will be prepared to withdraw his amendment.

[Lord Sharkey]

My Lords, I am very grateful to all those who have spoken in favour of the amendment. They have, in my view, spoken persuasively and eloquently. I cannot help feeling that in many ways the Minister is simply missing the point. He talks in terms of practicality and cost; that is essentially the argument that he is putting forward. As I pointed out a few moments ago, there are elements to this other than practicality and cost. There is the notion of moral duty; there is the notion of taking into account the feelings of the friends and relatives of those convicted but now dead; and there is the notion of the devaluation of the disregard for those convicted but still alive if the purpose of this is purely practical and contains no element of public recognition for the wrongs done to these people.

I am sorry that the Minister and the ministry have chosen to take this path. It seems to be legalistic, mean-spirited and ungenerous. I am sufficiently encouraged by the words that I have heard around the Chamber this evening to say to the Minister that, although I will now withdraw the amendment, I will return to it on Report and perhaps use the opportunity to test the opinion of the House at that point.

I finish by saying that of course I would welcome a meeting with the Minister. In fact, I wrote to the ministry on 3 July proposing that. I got a letter back last Thursday saying, “We have passed your letter on to the Home Office because of course the Protection of Freedoms Act belongs to the Home Office”. There was no mention of a meeting or any kind of consequent follow-up; it was just a case of “It’s not our business”. I knew that the Protection of Freedoms Act belonged to the Home Office but I also knew that the Minister was going to be answering this debate, which is why I wrote to him. I expected him, or his department, to answer on behalf of the Government and not simply to say, “Well, over to them and let’s not talk about a meeting”. I am now very glad to hear that he is talking about a meeting. Having said that, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 42A

Moved by

[Baroness Thornton]

42A: After Clause 28, insert the following new Clause—
“Parliamentary procedure for designation
(1) Where the Secretary of State proposes to make a designation under section (Licensing of foreign pornographic services)(11), he shall lay particulars of his proposal before both Houses of Parliament and shall not make the proposed designation until after the end of the period of 40 days beginning with the day on which the particulars of his proposal were so laid.
(2) If, within the period mentioned in subsection (1), either House resolves that the Secretary of State should not make the proposed designation, the Secretary of State shall not do so, but without prejudice to his power to lay before Parliament particulars of further proposals in accordance with that subsection.
(3) For the purposes of subsection (1)—
(a) where particulars of a proposal are laid before each House of Parliament on different days, the later day shall be taken to be the day on which the particulars were laid before both Houses; and(b) in reckoning any period of 40 days, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”

[Baroness Thornton (Lab)]

My Lords, this group of amendments deals with the licensing of foreign pornographic services. As noble Lords can see, I am getting all the fun issues today. I will take noble Lords briefly through what each of the amendments seeks to do and will then talk a little about the background that led us to table them.

Amendment 42A would outline the parliamentary procedure by which the Secretary of State designates which body may be a licensing authority for foreign pornographic services for the purposes of Amendment 42B. Amendment 42B would require providers of foreign pornographic services to be licensed, a licence being granted only to providers with effective age verification mechanisms. Amendment 42C would define a foreign pornographic service for licensing purposes, and Amendment 42D would introduce a maximum sentence of six months’ imprisonment or a fine not exceeding £5,000 for a provider of foreign pornographic services which is convicted of failing to secure a licence. These amendments were tabled, but not chosen for discussion in the Commons, by my honourable friends Dan Jarvis, Andy Slaughter, Diana Johnson and Helen Goodman.

The background to the amendments is that in July 2013 the Prime Minister, David Cameron, asked internet service providers to offer family-friendly filters to all customers, ensuring that they had effectively to choose to turn the filters off. The four major ISPs rolled out these filters to new customers at the beginning of 2014 and will have offered the choice to install filters to all existing customers by the end of 2014. However, Ofcom has found that more than half of parents do not use the parental controls, nor are the controls a complete solution in themselves. Recent research by on demand regulator ATVOD shows that shocking numbers of those aged under 18 are still accessing adult material online, and I shall come back to that in a moment.

20:15

I believe that the Government risk becoming complacent. We think that these amendments will serve to keep up the pressure and act as the next step in the ongoing battle to make children safer online. I regard them as complementary to, for example, the Private Member’s Bill introduced by the noble Baroness, Lady Howe, whom I admire enormously for her work and persistence in this area.

So what is the situation in the UK, the EU and the rest of the world? The UK Government have promised further legislation to remove any possible doubt about the current position and to enable ATVOD to act against UK providers which offer content that would be forbidden for sale on a DVD, even in a licensed sex shop.

EU-based providers are regulated under the same directive that we use in the UK, but some member states do not consider that hardcore porn “might seriously impair” those under the age of 18. They do not impose the same restrictions as we do in the UK. This means that online services based in, for example, the Netherlands can and do target the UK and provide unrestricted access to hardcore pornography. The directive is to be amended to require all member states to ensure that media services within their jurisdiction keep hardcore porn out of the reach of children and I believe it is important that the UK Government should support that call for change.

Non-EU-based providers are completely unregulated and are responsible for most of the online porn viewing for those in the UK. The leading pornographic businesses make their content available in two ways—by offering access to those who pay for a subscription and by providing free clips, including so-called tube sites such as PornHub, which act as a shop window to promote their core subscription-based services. The tube sites are the key means by which UK children are likely to access hardcore porn and often feature in the top 50 websites being accessed from the UK.

The Government have committed to legislate further for UK-based websites reinforcing the need for age verification mechanisms to be in place but have not yet committed to changing the law to tackle non-EU providers. Technically, foreign-owned websites could be prosecuted under the Obscene Publications Act 1959 if they provide unrestricted access to adult material. The Crown Prosecution Service issued guidelines on this issue in 2005. However, I understand that since 2005 no relevant prosecution has taken place under this law. Perhaps the Minister would like to confirm that this is indeed the case. The lack of clarity and case law means we need effective statutory legislation.

Recently, the Authority for Television On Demand—ATVOD—published the results of a pioneering study that examined whether and to what extent children and young people between the ages of six and 17 were able to access such sites despite what our law says. The research methodology employed was similar to that used to measure TV viewing figures. It looked only at access via PCs and laptops. In other words, it excluded smartphones and handheld devices. Had these been included there seems little doubt that the results would have been different and worse.

In a single month, December 2013, ATVOD identified 1,266 porn websites that were being visited by UK users. Only one of these was a service regulated within the UK. This is its shocking summary. It said the survey,

“provides the most authoritative picture yet established of the exposure of children and young people to ‘R18’ material. ‘R18’ is the classification of the strongest legal video pornography permitted in Britain and covers content which, on a DVD, can be found only in a licensed sex shop or cinema and is restricted to buyers 18 or over. It portrays a range of real, rather than simulated, sex acts”.

It also found:

“At least 44,000 primary school children accessed an adult website … one in 35 of six to 11 year-olds in the UK going online … 200,000 under-16’s accessed an adult website from a computer. This is one in 16 children in that age group who went online in the same month … One in five teenage boys under 18 going online were clicking on porn websites from PC’s, and one adult site—which offers free, unrestricted access to thousands of hardcore porn videos—attracted 112,000 of the teenagers … at least 473,000 children between the ages of six and 17 accessed an adult internet service, mostly offshore—one in ten of young people that age who went online”.

ATVOD’s very sensible suggestion was that the credit card companies and the banks that owned them should stop processing payments to the identified websites. I am told that the financial institutions expressed sympathy but said that they wanted fresh legislation to protect them from any claims. In other words, they refused to act.

Such pusillanimity is disappointing. I seriously doubt that the banks and credit card companies need any legislation to pull the plug on payments to sites that are demonstrably breaking UK law—quite the opposite. Could it not be argued that the banks and credit card companies are themselves committing an offence? By allowing these sites to use their payment system, are they not aiding and abetting the commission of a crime? Are they not helping to sustain the sites that are harming our children? Were these amendments to be passed, the banks and credit card companies would have no hiding place. If a site was not licensed the banks and credit card companies would not be able to provide them with financial services or support. That would definitely do the trick.

When the results of this research came out, the Government announced that a policy on internet filters would deal with the problem of keeping under-18s away. The filters will definitely help but the implication was that nothing else needed to be done. That is fundamentally wrong. The filters should act as a backstop, not as a first line of defence in this case. What should the new law say? The Crown Prosecution Service has been reluctant to authorise actions against hardcore porn websites under the Obscene Publications Act. It says that juries do not want to convict. That being so, the answer is obvious. Remove the need to bring obscenity charges and create a new regulatory offence. That is what a licensing regime would create. Pornography website owners would be required to show that they had a robust age verification mechanism in place to get a licence. Not having one would be a crime.

This is not so very different from what we already do with online gambling websites where age verification and licensing are the key and where the Government took a strong line to protect children and young people with a very high degree of success. I hope the Minister will recognise that these amendments seek to put a similar regime in place. I beg to move.

[Baroness Howe of Idlicote (CB)]

My Lords, I was pleased to add my name to Amendments 42A to 42D tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Beecham. I am grateful to the noble Baroness for her comments earlier. As noble Lords will know, I have been concerned about content on the internet for some time and have tabled amendments to previous Bills on age verification for certain websites. I also have the Online Safety Bill which is currently before your Lordships’ House. I extended my Bill in this Session specifically to deal with some of the concerns which have been raised by the noble Baroness, Lady Thornton, so I am grateful to be able to discuss these important issues today.

As a result of the Audiovisual Media Services Directive 2009, the Authority for Television on Demand has regulatory powers over “TV-like” on-demand programmes that include those which provide explicit pornographic content. ATVOD is already taking welcome action to address services that are based within the EU and has set out in its annual report, which was published last week, how in the year to 31 March 2014 it took action against 16 services operating across 20 websites because these services featured hardcore pornography that could be accessed by under 18 year-olds.

However, there are two current concerns. ATVOD already assumes that these regulations apply to R18 video works—that is, hardcore pornography that can be legally supplied only by a licensed sex shop in offline form—but has argued that it is not clear and that it could be subject to legal challenge. In 2013, the Government said that they would legislate to ensure that material that would be rated R18 by the BBFC is “put behind access controls” and would,

“ban outright content on regulated services that is illegal even in licensed sex shops”.

I understand that in April the Government announced that they would implement this policy before the end of the year. This is welcome news in relation to EU services, and I would be grateful if the Minister could give us an update on progress on implementing this commitment.

The second issue, which is the one that these amendments aim to address, is that ATVOD is concerned that young people are accessing hardcore pornography rated R18 and stronger through tube sites that tend to operate outside the EU and which will not be affected by the change I have outlined above as they fall outside ATVOD’s jurisdiction. As noble Lords have heard, in March 2014, ATVOD issued a report entitled For Adults Only? Underage access to online porn. The report contains shocking statistics on access to pornographic websites that are outside its control because they are based overseas.

Noble Lords have been given quite a few of the relevant statistics by the noble Baroness, Lady Thornton, that I was going to read out, such as the fact that one in 20 UK visitors to an adult website during a period of one month, December 2013, were under age, and that 23 of the top 25 adult websites visited by UK internet users provide instant, free and unrestricted access to hardcore pornographic videos and still images. Moreover, none of the eight most visited adult sites has in place a robust mechanism to prevent underage access and all offer on the home page free access to hardcore porn videos which are equivalent to those passed as R18 by the BBFC, or indeed are even stronger. I must repeat one statistic because it really is so horrendous. Only one of the 1,266 adult websites identified in the ATVOD research as having been visited from the UK in December 2013 was a service that is regulated in this country.

I am sure that noble Lords will agree with me and with the noble Baroness, Lady Thornton, who has put the case so clearly and splendidly, that this is really unacceptable and that the time has come to address these issues. As a result of its research, ATVOD has made a series of recommendations, one of which is to establish a licensing scheme for foreign pornography websites based outside the EU which are being accessed in the UK. A condition of the licence should be that hardcore pornography can be provided only,

“in a manner which secured that under 18s could not normally access the material”.

Amendments 42A to 42D would set up such a licensing system. I hope that the Committee will support these amendments and that the Minister will confirm that that will be the case. I should also like to hear his views on ATVOD’s proposal that the blocking of payments to services could be implemented if a service is unlicensed or a licensed service breaches the licence conditions.

20:30

[Lord Faulks]

My Lords, these amendments seek to establish a licensing regime for non-EU providers of pornographic content. I am grateful to the noble Baroness, Lady Thornton, for her explanation and for meeting me last week to discuss in general terms the proposals contained in the amendments. I am also grateful to the noble Baroness, Lady Howe, for her support for these amendments and for her continued interest in this particular unfortunate aspect and her determination in trying to achieve through legislation better control of access to pornography.

The Government agree that the aim of protecting children from accessing inappropriate content is one that should be pursued, but for the reasons that I shall explain, we are unable to accept these amendments. As the noble Baroness explained, the intention behind this amendment is to build upon the current regulatory system in place, deriving from the Audiovisual Media Services Directive, which applies to services situated in the UK and the EU. So far the Government have taken the consistent approach to regulate only UK-based TV-like video on demand content that might seriously impair the development of children, since this can be actively enforced. This is in line with the Audiovisual Media Services Directive. However, we intend to introduce secondary legislation to make clear that material that has been or would be classified R18 by the British Board of Film Classification must only be provided behind effective access controls.

The Government’s approach for protecting children from other content of this nature that originates from beyond the EU focuses on giving parents the tools they want to limit access to certain types of content, via parental controls and filters. These technological solutions have the advantage of dealing with all types of content, regardless of whether the provider is situated in the EU. Consequently, children in homes with the filters enabled will not be able to access pornographic material on the internet.

With regard to the degree to which filters are established, all new TalkTalk, Sky, BT and Virgin customers are now being given an unavoidable choice about installing family-friendly filters. Hundreds of thousands of homes have already taken up the option of a whole-home family-friendly internet filter. TalkTalk has already started to contact existing customers and give them an unavoidable choice about installing filters when they log into their password-protected “my account” space. It has contacted more than 1.5 million already. BT, Sky and Virgin are developing their own individual solutions to enable them to prompt existing customers. By the end of 2014, they will have given the 19 million households that they supply with an internet connection an unavoidable choice about installing filters. Rollout will be done in phases to avoid overloading the systems.

Like current device-level filters and filters used by every school in the country, filter software is provided to the ISPs by well established web-filtering companies. These are very dynamic and use a combination of web trawling and human intelligence to ensure that acceptable sites are not filtered in error. Solutions also allow parents to apply different levels of filtering depending on the age of the family. As to the remaining internet service providers beyond the big four, the Internet Service Providers’ Association, which represents the smaller ISPs, has confirmed that overall these smaller ISPs are open to considering the options available to them for delivering additional controls. We welcome their commitment to keep the Government updated on progress and to share best practice between the smaller ISPs.

The difficulty with this amendment is that it would effectively be unworkable because it creates a two-tier system whereby non-EU providers of pornographic content would be subject to stricter regulation than UK and EU providers. It creates a different definition of pornographic material to be regulated and will therefore create uncertainty, inconsistency and lack of clarity rather than more security. Secondly, extending the scope of the type of content from TV-like content to include film clips and static images that originate from outside the EU would create further uncertainty and inconsistency across the full scope of the content in question.

The noble Baroness, Lady Howe, asked about the R18 legislation. I understand that the legislation has been drafted and is currently at the notification stage in Brussels. We hope to implement it in the autumn.

We of course share the concern that has been expressed all around the House about access to pornographic material, particularly by children, and are concerned to do all that we reasonably can. However, we are not convinced that these amendments are the answer and respectfully ask the noble Baroness not to press them.

[Baroness Thornton]

I thank the Minister for that answer and the noble Baroness, Lady Howe, for her support on this. That is disappointing. The Government are complacent about this issue and are depending too much on filters and on parental controls. We know that it is not working and that too many of our children are accessing hardcore porn too easily. The Minister needs to acknowledge that. The evidence is absolutely clear: the damage is already being done to our children and the Government are not doing enough to stop it. I fear that we will return to this subject at a later stage of the Bill. I beg leave to withdraw the amendment.

Amendment 42A withdrawn.

Amendments 42B to 42D not moved.

Clause 29: Secure colleges and other places for detention of young offenders etc

Amendment 42E

Moved by

[Lord Beecham]

42E: Clause 29, page 29, line 34, at end insert—
“(d) secure children’s homes.”

[Lord Beecham]

My Lords, at Second Reading, the Minister referred to a “network” of secure colleges, of which the planned facility at Glen Parva in Leicestershire is to be the first. This so-called network would consist of precisely three establishments, each housing around 320 young offenders, very many of whom will of necessity be a long way from home and family. That is not a network as most people would understand the term.

Some of us were recently treated to an exposition of the plans for the college, kindly organised by the Minister, where we heard from the developers, Wates. The technology was attractive and smart, which is more than can be said for what passes for the thinking behind the concept. It became apparent from the answers to questions from the noble Lord, Lord Carlile, who is not now in his place, that not only did the site have severe limitations in terms of the facilities, particularly outdoor and recreational facilities, but that instead of the intended function of the site dictating its location and size, the site, which was already owned by the department, dictated the nature of the development. Its limitations in terms of size and location were simply never addressed.

The Government are pressing ahead with a scheme—to the extent of going out to tender—which is property-based rather than service-based. Given the paucity of evidence of support for the project during the consultation exercise, with the Children’s Commissioner, the Chief Inspector of Prisons and a host of organisations expressing serious concerns and objections, this is completely unacceptable. I have today received the reply to a Written Question about this process, which makes interesting reading. It refers to the Government’s invitation to,

“interested parties to develop propositions of their vision for implementing Secure Colleges”.—[Official Report, 16/7/14; col. WA 130.]

It goes on to say that a competition was launched in January, for which all of four bidders submitted tenders. The contract has now been let, all before Parliament has debated—never mind passed—the legislation. A separate competition to appoint an operator will take place, with a view to that taking effect next year.

As the series of amendments we are debating demonstrates, there is virtually no detail about cost or how the college is to be run. On the contrary, the Government make a virtue of saying that they have invited the potential contractors to say what they propose to do. The impact assessment—unusually flimsy even by the MoJ’s standards—says:

“There is … some uncertainty over the level of operating costs we would expect to achieve through a competition”—

a masterly understatement. The same applies to the estimated capital costs of £85 million. When my honourable friend Dan Jarvis MP tabled a Parliamentary Question about the latter, he was told:

“To avoid prejudicing the effectiveness of the design and build competition … the Ministry of Justice will not be able to publish a breakdown of the budget until the competition has been completed”.—[Official Report, Commons, 17/3/14; col. 438W.]

It irresistibly brings to mind the words “buying”, “pig” and “poke”. Let us be clear: the objective of providing better education for these youngsters is wholly admirable—not least in literacy and numeracy skills—and will command universal support, but there is absolutely no detail on how this is to be achieved. The Government seem to imagine the college as a kind of Eton for delinquents where inmate students will start their course in, say, the autumn term and progress through until they have completed however many terms they remain there. The reality, of course, will be different.

The average stay in youth custody is all of 79 days, as the Justice Committee observed. The youngsters, therefore, will come and go at different times and for different lengths of time. Robert Buckland MP, now promoted to Solicitor-General—an appointment well received across the political spectrum—asked a series of questions in the Public Bill Committee about the actual working of the college, the level of provision and the types of staff to be employed and their training. He pointed out that the only staff specifically mentioned are custody officers, whose duties are not defined and, strikingly:

“The words teacher, psychiatrist, social worker, and counsellor do not appear in the schedule”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; col. 280.]

He asked about the child to adult ratio and to these questions, posed again in the amendments we are discussing, answer came there none.

Jeremy Wright MP—whose elevation to the position of Attorney-General in place of Dominic Grieve was greeted with rather less acclaim than that of the new Solicitor-General in the light of his aversion to the Human Rights Act and the European Convention on Human Rights—could say about teachers only that,

“it is likely that an operator of a secure college will recruit a number of qualified teachers”.

He also said that,

“as with free schools it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; cols. 291-92.]

No indication was given about health issues, including how mental health is to be treated. Of course NHS England would have the responsibility, but how will this be exercised, especially with short-stay inmates? What contractual conditions on these matters do the Government have in mind—if any? Will these two simply be left to the education providers to determine? I recall the lines from TS Eliot’s “The Love Song of J Alfred Prufrock”:

“And time yet for a hundred indecisions,

And for a hundred visions and revisions”.

To venture another quotation, there is a line from “Richard III” in his speech to the troops before the Battle of Bosworth:

“Remember whom you are to cope withal”.

That is something the Government seem conspicuously to have failed to remember. The colleges will deal with damaged, vulnerable youngsters. A survey last year found that 65% of girls and 37% of boys in custody were last at school aged 14 or under, 86% had been excluded, 60% had communication difficulties, 75% had literacy difficulties and 25% had learning difficulties—a matter which the noble Lord, Lord Ramsbotham, has raised repeatedly. All this means that they require strong educational support. More than 30% of boys and 60% of girls had been in care, 41% had a drugs problem and 19% of boys had emotional or mental health problems.

The Government’s proposal is to warehouse the whole age range—both sexes—in the juvenile equivalent of a Titan prison. How can it be right to place a small number of girls in an institution which, given their numbers, will be even more likely to be remote from their homes? How can it be right to place 12 to 15 year-olds alongside older adolescents? It cannot be intended that they would attend the same lessons, take part in the same recreational activities and receive the same psychological and medical support.

The Joint Committee on Human Rights points out that the plans do not accord with international standards governing the administration of juvenile justice which, for example, should include,

“small open facilities where children can be tended to on an individual basis and so avoid the additional negative effects of deprivation of liberty; and that institutions should be decentralised to allow for children to continue having access to their families and their communities”.

The Joint Committee went on to note that there was no equality impact assessment. What response does the Minister make to the recommendation that these should be made and provided as soon as possible, especially in relation to the impact on girls and younger children? What of the call for more information about special educational needs provision in the colleges?

The amendments in my name and that of the noble Lord, Lord Ramsbotham, are designed to address these issues and ensure that if the policy goes forward—to which issue I will return later—there will at least be an obligation on the Government to explain not merely what they seek to achieve but precisely what will be achieved, and with what safeguards, on the issues that I and others identify in these debates. Amendment 42E would add secure children’s homes to the list of places the Secretary of State may provide for youngsters sentenced to detention. Such homes are currently provided by local authorities. It would be necessary to develop a joint approach in this context. Amendment 42K would require the Secretary of State to ensure that sufficient secure home places were available. Amendments 42F and 42G would exclude girls and children under 15 from secure colleges. Amendment 42J would require adequate specialist provision to cater for the often complex health and well-being needs of offenders in secure colleges.

20:45

Some 40 years ago, many of us were engrossed by the Watergate scandal. Some will remember the advice tendered by the source who lifted the lid on the affair to the intrepid Washington Post reporters: “Follow the money”. I do not think it is cynical to suggest that this Committee should do likewise. The Government draw attention to the cost of secure children’s homes and secure training centres. The numbers of the former dealing with the most severely damaged children and run by local authorities are small, typically from eight to 40 places with high staffing ratios. They are obviously expensive but obviously deal with very vulnerable children. No child in a secure children’s home has died in custody in the last 14 years. Some 16 have died in other institutions.

The Youth Justice Board has now decommissioned 28 places, reducing the number to 138. The Government said they are,

“continuing to provide sufficient places in”,

secure homes,

“while seeking improvements in service and reductions in costs”.

By what process have the Government come to the conclusion that 138 is a sufficient number of places? What improvements in service have they identified as being required? What level of cost per capita and in aggregate do they consider reasonable? Just how many children now in secure homes do they envisage will transfer to secure colleges with 320 inmates and far from home? Why do they ignore the advice of the Children’s Commissioner, who suggested that for these children there should be no more than 25 in a given residential setting? What is to be the relationship between the secure college and secure children’s homes, and between the college and secure training centres, currently housing about 90 trainees each? It appears to be the Government’s intention to run those down. What is the future to be for secure training centres?

A series of other amendments deal with a range of additional issues. Amendment 44A would require parliamentary approval for the education scheme of any college before it is opened. Amendment 44C would require staff to hold relevant teaching, counselling or nursing qualifications. Amendment 45A would add to the duties of college custody officers the requirement to assess and promote the best interests of the children. The Opposition also support the amendments of the noble Lord, Lord Ramsbotham—Amendments 43, 44B, 45, 47 and 48—to which he will no doubt speak.

We, like most of those who responded to the consultation and gave evidence to the public committee, are deeply sceptical about this proposal. If it is to go ahead at all, it should be with the qualifications contained in the amendments and after parliamentary approval of the detail they seek. Hence the sunrise clause in Amendment 43D, requiring such approval for a modus operandi for a college covering 11 areas touched on in these amendments. A second sunrise clause in Amendment 43A would affect any further college projects and would require the piloting of a much smaller college, which could be local to its residents and deal with youngsters over the age of 15 who would be there for some meaningful time, in which their problems could be adequately addressed.

As matters stand, the current plans bear the hallmark of the Secretary of State’s penchant for eye catching and headline grabbing that is inadequately thought through and unsupported by evidence. In the absence of significant movement, we will return to these amendments on Report to secure significant changes to some very badly flawed proposals. I beg to move.

[Lord Ramsbotham (CB)]

I shall speak to Amendments 43, 44B, 45, 47 and 48 in my name and support without further comment Amendments 42F, 42G, 42J, 42K, 43, 43A, 44A and 45A, to which I have added my name, and about which the noble Lord, Lord Beecham, has spoken so eloquently. Later in the proceedings I shall speak on clause stand part, putting forward alternative proposals to those about which so many object so strongly—witness the complex Lib Dem Amendment 43C.

At Third Reading of the Bill in the other place, the Secretary of State said of the Government that they were not a Government who,

“legislated without taking into account the views of Parliament”. —[Official Report, Commons, 17/6/14; col. 1070.]

Those of us who observed the deliberate way in which Parliament was denied the opportunity to discuss changes to the way probation is delivered have reason to question this. There has already been discussion about secure college rules at Second Reading, when the Minister told the House that some, but not all, were to be subjected to the consultation process, which would be launched before Report. He assured us that this included those related to the use of reasonable force in the interests of good order and discipline, which subject is to be discussed in the next group. However, in addition to its incomplete nature I am concerned that the consultation process will not be completed before the Bill has completed its passage through both Houses, thus reducing parliamentary involvement in the consultation to something of a farce. The Minister will remember that I asked him, when he addressed a Cross-Bench meeting, whether or not these rules had been published. The head of the Bill team said that they had not, in contradiction to the Secretary of State, who told the other place at Third Reading that they had; that appears in col. 1071 of Hansard on 17 June.

As the noble Lord, Lord Beecham, has pointed out, instead of laying down what regime potential contractors are to provide in secure colleges, the Government appear to be inviting them to say what they propose to do, the best alleged value for money then presumably being adopted as government policy. But by no stretch of the imagination should any country that claims to be civilised do the same as far as rules governing the good order and discipline of children are concerned. Therefore Amendment 43 is designed to ensure that Parliament is given an opportunity to scrutinise and approve whatever the Government lay down in this regard.

I have a further plea for the Minister regarding the consultation on the rules. I hope that this time it will be a proper consultation and not yet another Ministry of Justice travesty which consists of calling for consultations and then publishing a pre-determined plan regardless.

Amendment 44B relates to changes made during the passage of the Children and Families Bill regarding children with special educational and speech, language and communication needs. Originally, children in detention were excluded from any provision, including education, health and care plans that home local authorities were required to make for any child with such needs. However, that has changed, and not only are places of detention now required to provide resources to enable an EHC plan to be continued while in custody, but that place is responsible for informing the local authority if the child is moved. Furthermore, a child can be assessed while in custody and an EHC plan made which is then binding on the home local authority on his or her release.

My amendment is designed to place a duty on the principal of a secure college, to use their best endeavours to ensure not only bthat the needs of those children arriving with the existing EHC plans are met but that staff are trained to identify those with problems so that they can then be assessed for such plans. This is not a new subject, because on Report in the other place, the Minister agreed that,

“a great deal of further thought will be given to how those needs can be met”.—[Official Report, Commons, 12/5/14; col. 538.]

What action has been taken in this regard?

Amendment 45 relates to the vexed issue of staffing. As the Minister knows, the principal reason for the relatively high cost of secure children’s homes is the high staff-child ratio, which reflects the numbers of specialists whom this age group needs. As I found when inspecting private sector prisons, companies were tempted to take risks with staffing to preserve their profit margins, which led to problems over safety. Furthermore, because of the wages that such companies pay to unskilled employees there is a very high turnover of junior staff, which is the very antithesis of a key point in successful working with the kind of children we are talking about, namely enabling long-term contact with responsible adults. Can the Minister say whether minimum staff-children ratios have been laid down, so that secure college contractors cannot take short cuts with children’s safety?

Amendment 47 seeks to ensure that the Secretary of State specifies the content of the educational programme that the Government have said they will provide in order to double current provision. So far, we have no details of whether this refers to academic-only content—related to the current 12 hours a week provided in YOIs, 25 hours in secure training centres or 30 hours in secure children’s homes—or what proportion will be vocational, physical, social or whatever. Without any baseline, how can the Government possibly judge the efficacy of any competitive bid? To be quite honest, it seems that the Government simply have not a clue about what is needed to satisfy their specious claim and that, under the smokescreen of phoney commercial in-confidence claims, they are hoping that potential providers will come up with some answers that they can then pretend are their programme. I challenge the Minister to prove that I am wrong by producing evidence of the details of the programme that has been put out to tender, and details of who evaluated its ability to meet the need.

Finally, Amendment 48 refers to the statutory training of secure college custody officers. To be utterly frank, the twin issues of quality and qualifications of staff trouble me greatly because of the damage that unsuitable or ill trained people can do to already damaged children. I remember meeting an old Army colleague—a member of my personal protection team when I was commanding my regiment in Belfast—after a gap of 20 years, when he was the senior officer responsible for the reception of children at HM YOI Onley, which was first the YOI that I inspected. I had added a social services inspector to my team because at that time we had no children’s custody expert. After two days, she told me that if Onley were a secure children’s home, she would have recommended the immediate closure of its children’s part because of the paucity of its regime and the lack of qualified staff.

I then met Corporal Gibbons and asked what I could give him if I had a magic wand. I shall never forget his answer: “Time—20 minutes trying to convince these young people that, for the first time in their lives, a responsible adult is taking an interest in them is worth all the hours of programmes, or whatever they call them”. The lesson still applies today and woe betide anyone who forgets it. The purpose of this amendment is to enable Parliament to ensure that all secure college staff are qualified to make the best use of the time available to them, which will enable them to make the vital breakthrough in changing troubled young lives.

21:00

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, my Amendment 42H is in this group, which I tabled in a rather more inquiring—and perhaps a rather less decided—frame of mind than the noble Lords, Lord Beecham and Lord Ramsbotham. I am not yet certain that there is not a role for new thinking on some commercial operations in these new institutions. I begin by apologising to the House for not having participated in proceedings on this Bill so far.

Amendment 42H is concerned with ensuring a high-quality educational experience for young people in these new institutions. As we have heard, this links into Amendments 44A, 44B and, to a lesser extent, Amendments 47 and 48. My interest in this topic comes from my involvement with the all-party parliamentary group on prisons, of which the noble Lord, Lord Ramsbotham, is the chairman. From time to time, the group hears presentations which are exceptionally powerful and persuasive. The presentation of relevance to my being here tonight was given by the Prisoners’ Education Trust, with whose help I have tabled this probing amendment.

It is, I think, generally accepted that having somewhere to live and a job to go to are the most significant factors in reducing reoffending. As a subset of this, research shows that the higher the level of educational achievement, the higher the likelihood of finding employment. Therefore, I entirely endorse, and very much welcome, the Government’s commitment to improve the educational journey for young offenders. This probing amendment is designed to discover how things will work at a practical level in the context of the secure colleges that are proposed to be established under Clause 29.

It seems to me the first set of challenges revolves around location. Noble Lords have pointed out that young offenders in larger secure colleges may well be at some distance from the homes to which they will return at the end of their sentence. How will the continued education of those young people be linked into their local authority and/or other community support programmes? In addition, given the recognition of the useful role that release on temporary licence plays in rehabilitation, which seems to me entirely sensible, how will that fit in with a continued and progressive educational experience?

Secondly, within the institutions themselves, there seems to be a number of challenges to providing this worthwhile educational experience. As the noble Lord, Lord Beecham, said, there is the shifting nature of the population, with young offenders arriving and departing in a way that may be educationally disruptive and not at all helpful to a scholastic timetable. As the number of young people in custody decreases, there is also the likelihood that the residual number may be particularly disturbed and troubled, and therefore the emergence of gang culture may well become prevalent. It would be helpful if the Minister could give us his thoughts on how that could be tackled, and whether there are sufficient resources so to do.

Of course, one way to address these various challenges would be to increase the use of IT-based distance learning. It is a field which continues to develop very quickly. New IT approaches can capture the imagination of young people in a way that the more conventional pedagogic approach does not, and can therefore play a valuable role in supplementing the latter, more formal approach. Further, an online tutor could also help overcome the problems of transitioning to the community from the secure college. However, I am given to understand—the Prisoners’ Education Trust is concerned about this—that the Government have reservations about increasing these young people’s exposure to distance learning. Will my noble friend tell the House whether this revolves around the cost of the system, the availability of suitably trained personnel or, perhaps more prosaically, issues of IT security?

As I said at the outset, I am convinced that improving educational performance provides a significant chance of reducing reoffending among young people. Therefore, I welcome the Government’s commitment to it. It will require some fresh organisational thinking, which is why I think commercial activities might be helpful—especially, as we have heard already, in the context of these larger secure colleges.

To address this, my amendment proposes a requirement to establish an individual learning plan. In turn, the construction of the ILP will have to involve all relevant bodies, statutory and non-statutory. It will require the assessing of the individual’s prior educational achievement and, finally, a path for that individual’s future demands. In the amendment I argue that this customised approach is likely to provide the most efficient and cost-effective way forward.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in this group I speak principally to Amendment 43C in my name, and in the names of my noble friends Lady Linklater, Lord Carlile and Lord Dholakia.

In spite of the comment of the noble Lord, Lord Ramsbotham, to the effect that our amendment was unduly complex—

[Lord Ramsbotham]

I think that I said that it was comprehensive.

[Lord Marks of Henley-on-Thames]

I am very grateful: I certainly heard “complex” and was slightly surprised, because I have support from the Back Benches. I thought that we were rather saying the same things. A feature of this debate is that all the amendments in this group, including that of the noble Lord, Lord Hodgson of Astley Abbotts, have been directed really towards the same concerns and issues.

Since the proposal for secure colleges was published as part of the Bill it has provoked a great deal of public and well informed criticism. For my part, I am indebted to the Children’s Rights Alliance for England, the Howard League for Penal Reform, the Standing Committee for Youth Justice and others for their advice, for full and well informed briefings, and for meeting me.

We have sought in our amendment to set out two mandatory principles, the need for which we now consider is firmly established, and a number of aims that we believe the Secretary of State must strive to meet if the proposal for secure colleges is to be implemented. We completely agree with the aim of the Secretary of State to ensure that young people in custody enjoy full educational opportunities. He is right to start from the position that the involvement in education of many of our young people in custody has in the past been minimal and their educational attainment virtually negligible. If we are to address their criminality, a good starting point is to try to give them some genuine education from which they may benefit in their future lives. The question is how we achieve that effectively.

We are concerned that the idea that we could somehow create on a residential basis in the prison estate large but secure colleges with some resemblance to schools may be misguided and unrealistic. As I mentioned earlier today, the number of young people now in custody is below 1,100. On all the best evidence it is simply inappropriate to attempt to contain large numbers of those young people together, regardless of gender and age. As has been repeatedly emphasised in this debate and at Second Reading, young offenders in detention represent a group of young people with a mixture of diverse and serious problems.

The first subsection of our proposed new clause would therefore provide the two mandatory points mentioned: that secure colleges may not be used for the detention of girls or persons under the age of 15. The evidence has satisfied us that it is simply unsafe to mix boys of all ages from under 15 to 18 together with girls in custody in one institution. Given all the evidence, we cannot believe now that the Government would wish to proceed on any other basis. I invite the Minister to confirm as soon as he can that that is the position.

Our second subsection is designed to ensure that the welfare of persons detained in any secure college has to be the primary consideration that the Secretary of State will have in mind in making any decisions that affect the lives of those in custody. In one sense, that may be obvious, but we feel it should be clearly stated in the Bill.

Our third subsection, comprehensive or complex as it may be, sets out a number of aims that the Secretary of State should be required to keep at the forefront of his mind when setting up and providing any secure college. I do not shirk from saying that I fear that many of these aims are incompatible with what we understand to be the Government’s present intention to establish a large, secure college in the Midlands housing nearly one-third of all young offenders currently in detention.

The first consideration must be the provision of a safe and secure environment for all those detained in secure colleges. The next aim must be that any secure college is of an appropriate size. Having considered the question of size, I now have no doubt that what we mean by “appropriate” is “small”. All the evidence we have considered suggests that a small institution capable of giving young offenders individual attention is essential to rehabilitation and educational attainment.

We also believe that it is very important that young offenders are detained close to home. Their families should be able to visit them and stay overnight if necessary. We have stressed throughout this Parliament the importance of rehabilitating young offenders within their communities specifically so that upon release they may come out and rejoin their families, friends and communities with some hope of local employment to come. Education in custody should be directed to that end.

One aspect of the current proposal for secure colleges that causes us concern is the idea that young offenders may be moved miles from their families, which could prove profoundly damaging. An associated concern that follows from that is that supervision before and after release, which we have made a priority, will lack the continuity that we have promised. If an offender is in custody, as is proposed, in an institution near Leicester and is to be released to Cornwall, it is unlikely that there can be any meaningful continuity of supervision.

Furthermore, we believe that if secure colleges are to achieve what they set out to achieve, real thought needs to be given to the type of educational opportunities that can realistically be offered. It is bound to be very difficult to provide suitable courses for young offenders who are sentenced at different times, due to be released at different times and sentenced for different periods. The noble Lord, Lord Beecham, mentioned that 79 days is the average period in custody. We cannot imagine that courses can be arranged that will meet the needs of more than a very few offenders at a time. Given what noble Lords have said, I ask my noble friend to elucidate what the Secretary of State has in mind. The question of distance or online learning raised by my noble friend Lord Hodgson of Astley Abbotts may well merit further consideration.

There is also the question of outdoor and sporting facilities and facilities for indoor recreation. It is crucial that the recreational needs of these young people be catered for. In the proposed very large pathfinder secure college, we are concerned that these facilities may be, if not entirely, at least very largely, lacking.

There is considerable concern, which has been mentioned by other noble Lords, about staffing and the need for staff with specialist training across a range of skills: not just teachers but counsellors, medics and others. My noble friend needs no reminding that many of the young offenders detained in these colleges will have special educational needs. Many of them will also have particular problems relating to their physical and particularly mental health. A number of young offenders have problems arising from drug or alcohol abuse; many come from profoundly dysfunctional backgrounds, many from criminal families. These issues need careful and focused personal attention. Will a secure college environment, as is proposed, be able to meet these needs?

Our final proposed new subsection would require the Secretary of State to consult the Youth Justice Board as to how the aims that we have set out might be achieved. I fear that there is a great deal of work to be done. We doubt that the present proposal can in its present state properly proceed, and we urge the Secretary of State to ensure that all decisions in this area are firmly based on sound evidence and good advice. The rehabilitation of young offenders is too important to be the subject of a gamble on a less than fully developed idea.

In summary, we fully support the Government’s aim to provide more and better education in custody, but we doubt that the present proposals for secure colleges have any realistic prospect of achieving it.

21:15

[Lord Carlile of Berriew (LD)]

My Lords, I want to speak in favour of all the amendments that have been spoken to and have my name on them—the amendment proposed by my noble friend Lord Marks and the noble Lord, Lord Beecham, from the Labour Front Bench, as well as the noble Lord, Lord Ramsbotham, who has remarkable experience of these matters. I shall not repeat everything that has been said; I want to focus on only one aspect, which was mentioned briefly by my noble friend Lord Marks—the provision of outdoor and sporting facilities for the children in this proposed Titan institution.

I have a feeling in the back of my mind that there is a Minister somewhere who has a whimsical memory of the public school that he attended and how possibly one might be able to recover these young men by putting them in the equivalent of Wellington College, which I know that the Minister attended, or Epsom College, which I attended. The difference is that at Wellington College or Epsom College the beautiful estates of those schools were created in a way that enabled every single boy to take part in sport at the same time every day. For example, in my school, more than 500 boys in those days—now 700 boys and girls—can take part in active sport and other physical activity at the same time. If what was being offered was a Titan college that had those sorts of facilities, I might begin to look on it as at least having one of the elements that would provide something particularly useful for the boys and possibly girls in it.

I think that we were all really grateful for the opportunity given to your Lordships to meet Ministers and to discuss what was proposed, because it gave us a real insight into those proposals. The Minister who was present from the Commons, Jeremy Wright, who is now the Attorney-General, as has been said, was pressed on this matter, and it was absolutely clear that there was one reason and one reason only for having this proposed secure college on the site where it is to take place—and that is that the Government already had the site and had to do something with it. There was no question of looking for a suitable site with perhaps 50 acres on which to build a secure college—and no question of selling the site that they have, possibly for housing development, to meet the Government’s other policies. They took the site—and what were we told was the provision for sporting facilities? I will be corrected if I am wrong, but my clear recollection was that we were told that there was a five-a-side football pitch, a gym and possibly another outdoor facility.

For the number of children expected to be at this proposed secure college, one five-a-side football pitch, which I take to be rather smaller than a full-sized football pitch, and one other outdoor facility is a ludicrously inadequate provision. So it fails even the site test. I have no doubt that I will be told—because instructions are being obtained as we speak, of course—that there may be a little more sporting provision. But I say to the Minister that he will have to do an awful lot better than two, or even three, five-a-side football pitches for more than 300 children at a secure college.

The only other thing I wanted to say without repeating what has been said by other noble Lords is in the form of a question, which relates to subsection (3) of the new clause proposed in Amendment 43C, tabled in my name and those of my noble friends Lord Marks, Lady Linklater and Lord Dholakia. I invite the Minister to look at that subsection, which contains paragraphs (a) to (l) as requirements or aims for the secure college. In order to shorten my noble friend’s speech, I do not ask him to tell us which of those criteria he agrees with; I ask him to tell us which he disagrees with. I would be very surprised if he disagreed with a single one. If he agrees with most of them, or even with only paragraphs (a) to (d), the result is clear that the provision that the Government are asserting is just inadequate and they ought to go back to the drawing board, sell the site and give us a meaningful plan for a secure college.

My final point is that I have listened to all the NGOs in this area, and I doubt whether there is any area of human endeavour that contains more expertise than youth justice. I have yet to find a single, sane representative—indeed, I have yet to find a representative, never mind whether they are sane or not—of one of those NGOs who approves of this proposal. Somewhere, down between the floor-boards of government, we may find the odd official—though I doubt it; it is more likely a Minister—who really believes that this proposal makes any sense at all in the reform and education of young offenders so that they can lead normal lives when they reach the age of 18. If the Minister can cite any British independent source that supports these proposals, then we really would like to hear it. I urge on my noble friend, who is a very good analyst of evidence, that when one analyses the evidence on this issue it leaves the Government with a very threadbare case.

[The Earl of Listowel (CB)]

My Lords, one of the most respected organisations in this area is the Prison Reform Trust. Its director, Juliet Lyon, was formerly a head teacher, I believe, of a school for those with emotional and behavioural difficulties. She is therefore someone who speaks with authority in this area. Listening to the noble Lord, Lord Carlile, I am reminded again how all authorities in this area seem to be very concerned about the Government’s proposals. I share the concerns that have been raised across the Committee about the Government’s proposal.

However, perhaps I may apologise to the Minister, first for being absent, due to pressing business, from the two helpful briefings that he provided for Peers. Also, earlier this afternoon, I pressed him on an earlier matter that he was not in a position to answer. I had not fully appreciated that what happened in the other place put him in a position whereby he was unable to answer my question. I apologise to him for that.

What encouraged me in principle about the Government’s proposal was that a college for the education of these vulnerable young people might be a real centre for highly qualified staff, teachers, mental health professionals and social workers. My greatest concern over the years in which I have followed these issues about residential care for vulnerable young people is that, in this country in particular, I am afraid that we place the least qualified, least experienced staff to care for our most vulnerable children with the most complex needs. I hope that the new institution will feature highly qualified teachers working hand in hand with mental health professionals. However, from what I have heard so far, there is no assurance of that.

I highlight the principle of continuity of care, which from my experience is so important for so many of these young people. My noble friend Lord Ramsbotham talked movingly about it. It is about young people having the opportunity to have an adult take an interest in them and to develop a relationship with them over time. That is key for their recovery when, in my experience of young people in care, they have been let down by the people they love most. As a result, they find it difficult to make trusting relationships. The key job of the care system—probably of this new institution—is to enable young people who have lost their ability to trust other people to make and keep relationships. That is above even the importance of education. It is very important that these young people learn to read and write, but if they cannot form relationships with other human beings their prospects are very bleak. A couple of weeks ago I spoke to an academic who had been in care. He graduated from a young offender institution with no qualifications. He now works on policy around young people in care. He said to me, as a highly qualified care leaver, that the most important thing is to meet young people’s emotional needs.

The briefing states that three-quarters of young people will have grown up without the involvement of their father. Perhaps it is worth mentioning, as an aside, that more than a fifth of children in this country are growing up without one or other parent in their family. The OECD expects that figure to grow considerably: it will move to a third of young people growing up without one or other parent in the family—probably a father—within the next 10 to 20 years. At the moment, that figure stands at over a quarter in the United States. However, according to the OECD we are going to overtake the United States in the next 10 to 20 years. This is a matter to which we should give serious consideration.

I am very concerned that these young people should have continuity of relationships and of care. For instance, it is very important that they have a key worker within the setting who can develop a relationship with them over time. The issue of ratios was raised by my noble friend Lord Ramsbotham. In young offender institutions it is very hard for a prison officer to have that kind of relationship because he is responsible for so many young people. Although it is required, it is not worth the paper it is written on.

I return to my experience of the care system. I was involved, in a small way, with a report that was produced by the MP Ann Coffey, the chair of the all-party group for missing persons. The report was on children missing from care, particularly in the context of young women being groomed by outsiders. The Government gave a very positive response to it and produced three working groups. As a result of that we now have much stronger checks on local authorities placing their young people out of authority care. We found that far too many children in local authority care were being placed many miles away from their local authorities. The Government recognised in principle that it is best to keep them as near as home as possible, although there may be exceptional circumstances. It therefore concerns me that we will have one institution covering a third of the children in the custodial estate in Leicestershire. Many of them will be so far away from their families and the possible communities they return to that it will be very hard for them to resettle.

Visiting a secure training centre a while back, I was very impressed by the quality of teaching provided to the young people. I watched a class and spoke to the teacher, who said, “We really can give a good service here, but when they walk out of here it is as if they’re walking off a cliff edge”. Therefore, I share the concern expressed by many that this new institution risks producing a very severe cliff edge of services. The previous chair of the Youth Justice Board, Frances Done, who was very well respected, did great work towards the end of her tenure in developing regional consortia with chief executives and directors of local services to ensure that there was a seamless move back into the community at the end of custody.

21:30

Finally, visiting Feltham young offender institution last year, after visiting it a couple of times in the last decade, I was very struck by the fact that there had been a tremendous change inasmuch as gangs had taken over. In the past, there would have been two or three boys attacking one boy; now 12 to 15 boys were attacking one or two boys. I should be interested to hear how this new institution deals with gangs, as was mentioned earlier, and how safe it will feel for the young people involved.

As Frances Done always used to say to us, it is wonderful that we have reduced the number of young people in custody. It was a blot on our nation’s record compared with the continent that we had so many young people in custody. However, it means that the ones left are those with the most complex needs and the most challenging young people, so putting them all in one place must raise concerns about safety. I look forward to the Minister’s response.

[Baroness Linklater of Butterstone (LD)]

My Lords, I shall echo most of what has already been said. I think that around the Chamber we are pretty well agreed that what is being planned in general for the most vulnerable children in our community is entirely inappropriate and inadequate.

First, I shall speak to the new clause proposed in Amendment 43B concerning sentencing guidelines and provisions regarding secure colleges. The clause would amend the sentencing guidelines laid down in the Coroners and Justice Act 2009 in relation to those aged under 18. It states that no court should impose a custodial sentence upon an offender who is under 18 simply because a place happens to be available at a secure college when otherwise a community sentence would have been imposed, or impose a longer sentence precisely because a place at a secure college is available. It reflects a concern that sentencers might be attracted by the idea of a secure college at the expense of a community sentence because of the possibility of the education that may be on offer. That of course is very superficially attractive, not least because at this point in time we have no idea what that educational provision will consist of.

It is rather like when the DTO was introduced in 2000. It was attractive to magistrates because it appeared to combine punishment with rehabilitation and protection to society, but it simply resulted in a surge of children in custody. With similar perceptions, there is a real risk that secure colleges could drive up the numbers in custody. It is important to remember that custody really must be the disposal of last resort for young people in particular. They have the worst outcomes of all sentencing options for society, as well as for the offender, as 70% of children and 58% of 18 to 21 year-olds will reoffend within a year of their release.

We know that non-custodial sentences offer far better outcomes all round, particularly in terms of reoffending. However, the form of custody envisaged by the secure college, by virtue of its scale alone, offers little hope of achieving much in terms of improving the life chances of the children and young people it is planned that it will hold. Some 320 children under one roof, or at least in one campus, is just an impossible size for anything to be done—as everybody has been saying—on a personal basis.

There is an additional worry, highlighted originally by Sir Alan Beith MP at Second Reading in the Commons, that the education said to be on offer is likely to be piecemeal at best when the average length of custody is 79 days and hardly long enough to complete any course, even if a young offender happened to arrive at the college at the beginning of one. They take pot luck to join in when they arrive. So the reality of the college experience from an educational point of view alone is—

[Lord Faulks]

I am very sorry to interrupt my noble friend but I wonder whether she is not in fact talking to a different amendment.

[Baroness Linklater of Butterstone]

Am I?

[Lord Faulks]

I think you are.

[Baroness Linklater of Butterstone]

I am talking to Amendment 43B.

[Lord Faulks]

It is not in this group.

[Baroness Linklater of Butterstone]

Oh, it is in a different group. I am so sorry. Shall I continue or shall I leave it?

[Lord Faulks]

I think, with respect, you could come back to it if we get to that point.

[Lord Storey (LD)]

My Lords, I apologise for not having spoken at Second Reading. I was thinking that had this proposal come when we were debating the Children and Families Bill, there would have been uproar all around the House.

As has been said, we have to remember that 70% of young offenders have special educational needs and 20% are currently on what are called educational statements. The word “college” of course means education but the notion that you provide that educational support in what will in fact be Europe’s largest children’s prison is quite concerning, as is the notion that you put 12 year-olds with older youths and take them away from their support systems, their family and friends. We have not as yet decided what the education package is going to be. If it is going to be a genuine education package then there have to be educational psychologists, speech and language specialists and people dealing in mental health issues to make it really effective.

I have two real concerns. First, one of the amendments talks about younger children. There are moments in your professional life where certain events happen and they are almost life-changing in their impact. I remember clearly an 11 year-old boy who came to my school. They discovered that his mother’s partner had been in Winchester prison for child abuse. The boy was immediately taken away from his family and put in a secure children’s home. He was 11 and all the other young people in the home were 15 and 16. With the help of the local MP we got him out of the children’s home within, I think, three to four weeks. That boy had changed beyond belief. He had become a drug pusher; he did not want to support his family any more; he became abusive; he became a bully—all the sorts of things you do not want. That is my concern about putting young children into such institutions—and they are children. At the age of 12, 13 or 14, we are talking about children. The notion of putting children into this kind of institution is, to my mind, terrifying.

My second point is on the need for education support, which I have just mentioned. I recently went to visit a youth offending team on Merseyside comprising a very professional staff who are doing a tremendous job. The team’s concern is that currently it cannot even get information from schools to find out whether the young people concerned have statements or their educational assessments. We will have to pin down what the support provided in a secure college will be and what help is to be given.

I am very concerned about this proposal. If it is going to proceed, the important issues around age, the admittance of girls and of education provision have to be clearly spelt out. If this is about saving money, let us be honest and say so. If this is about a secure unit, let us be clear about that. But if the word “college” is going to be used and it is about supporting young people in their education and preventing reoffending, the issues that have been expressed in this debate have to be clearly and skilfully dealt with.

[Baroness Linklater of Butterstone]

With the leave of the Committee, I wonder whether I could try to complete what I was going to say, especially on Amendment 43C in this group.

The plan that a secure college should hold such a wide age group of 12 to 17 year-old boys and girls would seem inevitably to present enormous safeguarding risks. There are only ever very small numbers of girls in custody. Some 96% of those being held are boys aged between 15 and 17 years. The Joint Committee on Human Rights said:

“We note that the Government does not appear to have carried out any equality impact assessments of the proposed secure colleges policy, and we recommend that such assessments should be carried out and made available to Parliament at the earliest opportunity”,

assessing in particular the impact on girls and younger children of detaining them in large, mixed institutions holding up to 320 young people, including older children up to the age of 18.

While it is true that secure training colleges and secure children’s homes have a mixture of ages and sexes, the crucial difference is that they consist of very small units that are usually close to the child’s home with lots of intensive, one-to-one support from well trained and highly qualified staff. That is something which is light years from anything a 320-bed secure unit is going to be able to offer. The real problem is that without any pilots and with very little information on how they will be run and staffed, and about what programmes will be on offer, far too much detail is missing. That makes a realistic assessment by anyone impossible to do. It is a completely inadequate basis, I would suggest, on which Parliament can either judge or give its approval. What we do know is that this is a vulnerable, needy and challenging group of offenders for whom the risk of reoffending is very high. The chances of their complex needs being met in an enormous institution are low at best. I shall be very interested to hear what the Minister has to tell us when he comes to reply and how he will meet so many profound concerns.

21:45

[Lord Faulks]

My Lords, these amendments have allowed us to have a detailed and valuable debate and I welcome the opportunity to clarify the Government’s position on a number of aspects of how secure colleges will operate. However, so many questions have been posed during the course of the debate that I cannot answer all of them in my response. I will study Hansard carefully and write to all noble Lords and I will ensure that a copy of that letter is placed in the Library. If I do not deal with all the points that have been made, I hope that noble Lords will forgive me, but I will try to address at least in general terms the anxieties that have been expressed across the Committee.

On a positive note, there has been acknowledgement that the importance of education—which the Government say is reflected in the establishment of these secure colleges—is paramount, particularly with this cohort who sadly have rarely had access to any continuity in terms of their education and who would clearly, in the right circumstances, benefit a great deal from that. The Government made clear in their response to the Transforming Youth Custody consultation—this is my answer to the amendments in relation to secure children’s homes—that we accept that there will still be some detained young people who will require separate specialist accommodation on the grounds of their acute needs or vulnerability. We are committed to continuing to provide separate specialist accommodation for this small group of young offenders.

Your Lordships will have noticed that secure children’s homes are absent from the list of the types of youth detention accommodation that the Secretary of State may provide, as set out in the revised Section 43 of the Prison Act 1952 included in Clause 29. That is because local authorities have the power to provide secure children’s homes and the Secretary of State has never had such a power. Similarly, it is for local authorities to provide sufficient places as are required in secure children’s homes and we think that it is right that they retain responsibility for this. As noble Lords are aware, these will contain not only those who are there because they have been sentenced but those who are there due to the various duties on local authorities to safeguard children.

The noble Lord, Lord Beecham, referred to the desirability of more places being available in secure children’s homes. It is correct that we have reduced the number of places in secure children’s homes to 138. This reflects a positive step: the fact that there is a fall in demand for youth custody and the demand for secure children’s home placements in particular. We have in fact decommissioned a far greater number of places in youth offender institutions in recent years. A number of whole establishments have closed. Although finance is a factor that we cannot ignore in this process, it is not the only factor. If we were to place all young people in custody in secure children’s homes, it would cost in excess of £100 million per annum more than we currently spend.

I turn to Amendments 42F, 42G and 43C. Concern was expressed about the access of girls and those aged under 15 to secure colleges. I am sorry for interrupting the speech of the noble Baroness, Lady Linklater, but she came back on this point and made some helpful observations. I do recognise the concerns about the safeguarding of both under-15s and girls in an establishment where the majority of young people will be boys aged 15 to 17. I also accept that the educational, health and emotional needs of under-15s and girls may often be different from those of the broader population of 15 to 17 year-old boys who are likely to make up the majority of those in secure colleges.

However, the Government believe that these risks can be properly managed, as they are in secure training centres and secure children’s homes where boys and girls of different ages are accommodated. I should like to reassure noble Lords that the design of secure colleges will be such that younger and more vulnerable children will be accommodated in units separate from the mainstream group of older detainees and that there will be facilities to ensure that they can access education and other services separately. That point was made during the course of the all-Peers meeting to which a number of noble Lords referred when putative plans of the secure college were shown.

My noble friend Lord Carlile was critical, and has repeated his criticism, of the lack of outside space. He is determined that somewhere there is a ministerial vision of some equivalent to a public school. This Minister pleads not guilty to that. The advantage of playing fields is considerable. At the establishment to which he referred, that was perhaps the only main advantage of the school, although that is not of course the case now.

There are inevitably some difficulties in providing appropriate space but I accept the general point that physical exercise in appropriate circumstances can be of profound therapeutic assistance. Although at the moment we have a limited amount of space, as the noble Lord rightly apprehended, and not just today, I have been making inquiries into the possibility of acquiring some extra physical space to try to accommodate the desirability of providing additional facilities. I hope to be able to come back to noble Lords and provide some more information about that in due course.

The aspiration of noble Lords in the proposed new clause is for single-sex secure colleges, but the Government believe it is better for legislation to provide for the option of secure colleges accommodating both boys and girls. I make it clear to the Committee that no final decisions have been made on whether girls and under-15s will be accommodated in the pathfinder secure college. I also assure noble Lords that any introduction of these two groups in the pathfinder secure college—which is what this is—would be carefully phased: we would not place them there from its opening.

A number of the matters in the new clause proposed by noble Lords in Amendment 43C will be covered in the secure college rules, which I believe is the proper place to consider them rather than in the Bill. As I have already explained to the Committee, we intend to bring forward a consultation on our approach to the secure college rules before Report, which will provide an opportunity for the Government to set out and seek views on their plans for the basic requirement of secure colleges.

The new clause proposed by the noble Lord, Lord Ramsbotham, and other noble Lords requires the Secretary of State to conduct a pilot of no more than 50 people before commencing the secure college provisions. I recognise the concern that any new form of youth custody must be able to ensure the welfare and safety of the young people placed there. I reassure noble Lords that the opening of the pathfinder secure college will be extremely carefully managed. We anticipate that it will take some months before the pathfinder begins operating at full capacity, and this will only happen once the operator has demonstrated that it is delivering a high-quality service in a safe environment. With these appropriate precautions in place, I do not agree that a limited pilot scheme is required.

I sympathise with noble Lords’ desire for greater information on the precise form that education will take in a secure college. However, I do not think it is right for detailed information on the educational requirements to be set out in legislation or for the Secretary of State to dictate what the content of the educational programme must be. We want secure college providers to have the freedom to deliver innovative education that is imaginative and appropriately tailored to the young people in the establishment. It is important that secure college providers have the flexibility to tailor education to the different needs of the young people they accommodate. The form that this education takes, the number of hours that are spent in the classroom or the workshop, and how it is delivered, cannot be helpfully pinned down in secondary legislation.

The crucial point is that secure colleges must deliver a full and quality curriculum that motivates and challenges all young people. The effectiveness of the education in a secure college, including for those with special educational needs—referred to by many noble Lords—will be judged by a robust monitoring framework involving both Ofsted and Her Majesty’s Inspectorate of Prisons.

As to special educational needs provision, it is intended that the principal of a secure college will have overall operational responsibility for the services provided by the establishment, including the workforce delivering those services, and will work with the local authority responsible to ensure that young people with special educational needs receive appropriate support while detained in a secure college.

Noble Lords will be aware that the statutory responsibilities of both local authorities and custodial establishments in respect of young people with education, health and care plans has recently been strengthened by the Children and Families Bill. In addition, we will require special educational needs co-ordinators in secure colleges to hold qualified teacher status, in line with requirements in the mainstream.

I fully understand my noble friend Lord Hodgson’s concern to ensure that the education and training that young people receive while detained in custody is structured to their individual needs and takes account of their prior learning, as well as their aspirations on release. Secure colleges will improve on the existing processes, and ensure that all young people receive an individual learning plan based on a thorough assessment of their needs and prior learning experience. However, to create in the Bill a duty on the Secretary of State would, in our view, be disproportionate.

A number of observations were made to the effect that the period of time that an individual might spend in a secure college was not necessarily conducive to education. Sadly, we often deal with a cohort of young people for whom continuity has been notably absent, often even from one day to another in educational establishments. Ideally, one might think that educational provision ought to match precisely its mirror image in the community. However, a sufficient bank of time in a secure college would be intended, with an individually tailored plan, to ensure that some real benefit was derived from that exposure to education, in circumstances where the individuals have probably had very little continuity at all.

My noble friend Lord Hodgson referred to the value of online learning tools. We are exploring the extent to which we might be able make use of such tools, both in existing custodial establishments and in secure colleges. As those who saw the plans will have seen, there will be plenty of access to computers in the course of the educational provision. However, there are, as noble Lords will understand, precautions that need to be taken to restrict access to the internet—not least to protect the victims of crime from further harm.

As for the rules referred to in Amendment 43, I am grateful for this amendment. It raises a principle which I am sure all noble Lords will agree with: that the Government’s proposals for secure colleges should be subject to proper consideration and scrutiny by Parliament. I agree with the noble Lord, Lord Ramsbotham. I look forward to detailed scrutiny of these provisions as the Bill continues its passage through the House. However, we believe it is appropriate that the Secretary of State should have the same powers in relation to secure colleges as he has with other forms of youth custodial accommodation. We consider that the negative resolution procedure represents a suitable degree of oversight. In addition, as I set out at Second Reading on 30 June, we will launch before Report a public consultation on our approach to secure college rules. We will set out and seek views on the principles underlying the rules and, where appropriate, some indicative draft provisions.

As for Amendment 43D and the report to Parliament before commencement, I do not think it is right to set out extensive detail on how secure colleges will operate before these provisions can commence. In the Government’s response to the Transforming Youth Custody consultation, we explained that we want to allow providers to develop creative and innovative ways to deliver this new form of youth custody. Providing a report to Parliament before these provisions can be commenced—and therefore before an operator can be secured—would significantly undermine this approach.

In my view it is for primary legislation to set out the framework for secure colleges, for this to be further developed by the secure college rules—the process that I have just outlined—and for detailed operational requirements to be determined by the Secretary of State via the contracts that he enters into to provide secure colleges. Once we have identified an operator to run a secure college, the contract will be made publicly available, including the agreed operator service specification, with appropriate redactions where information is commercially sensitive. I hope that this allays to some extent the concerns expressed by the noble Lord, Lord Ramsbotham.

As to Amendment 48 and staffing, I am sure that noble Lords would agree with me that we want secure colleges to employ high-calibre individuals who are able to help deliver this new and bold form of custodial provision. This applies as much to custody officers who will be responsible for undertaking some of the most important functions in secure colleges as it does to teachers, health professionals and others.

22:00

It is the Government’s view that setting out information about individual training courses and the standard to be reached in respect of such courses in secondary legislation is not appropriate. It will be for the Ministry of Justice and the Youth Justice Board, through their contract management procedures, to ensure that the operators of secure colleges are providing appropriate and up-to-date training courses and that individuals are trained to an appropriate standard.

Amendment 44C, tabled by the noble Lords, Lord Beecham, Lord Kennedy and Lord Ramsbotham, would require all staff employed in a secure college to hold specific qualifications. I understand what lies behind this amendment, but having specific staff qualifications in the Bill is unnecessary. Indeed, staffing requirements are not set out in either primary or secondary legislation in respect of young offender institutions or secure training centres. In terms of healthcare provision, NHS England commissions health services for the whole of the youth estate in England. Furthermore, we believe that specifying the need for accredited counsellors is, arguably, unnecessary as these services are currently provided by psychology assistants or even qualified social workers.

Our approach to staffing in secure colleges will also reflect this Government’s approach to education in England generally. As with free schools, it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised. We believe it is right to adopt this same approach for secure colleges, focusing instead on the educational outcomes that the establishment achieves rather than the staff it employs.

As to staffing ratios, the Government believe that it is not for secondary legislation to prescribe them. For example, the young offender institution rules and secure training centre rules do not do so. A wide range of factors are vital to maintaining a safe and secure environment for young people in custody, but this extends beyond staffing ratios. Attempting to specify such ratios in secondary legislation would be extremely difficult and limit the flexibility of secure college operators to deliver services and create solutions tailored to the particular needs of the young people they care for. It will then be for the Youth Justice Board and the Ministry of Justice to assess these proposals against clear evaluation criteria, including the safety and security of the facility, during a procurement process.

Anxiety was expressed generally about continuity as a priority, and the welfare of children in particular—understandably so. The Committee will know that under Section 11 of the Children Act 2004 a range of bodies are under a duty to make arrangements for ensuring the functions are discharged, having regard to the need to promote and safeguard the welfare of children. Governors of prisons and directors of secure training centres are on this list and the principal of a secure college will be added to the list by this particular Bill. There were further inquiries about continuity that I will endeavour to deal with in the letter I will write, acknowledging in particular the concerns expressed by the noble Earl, Lord Listowel.

I have endeavoured to deal with all the amendments but, as I explained earlier, there were so many questions that I could not deal with all of them in my response. I am grateful to all noble Lords for this very useful debate in which a number of issues have been raised. I hope that in light of the assurances and reasons I have given to your Lordships the amendments will not be pressed.

[Lord Marks of Henley-on-Thames]

My Lords, my noble friend Lady Linklater spoke to Amendment 43B as if it were part of this group. There is nothing more that we wish to say on that amendment, which is in a further group, and because of the time I wonder if the Minister could indicate if he has anything special to say about it, subject to anything that the Labour Front Bench wishes to say.

[Lord Faulks]

I am happy to deal with that amendment; in the interests of economy, that seems a sensible suggestion. The amendment raises a concern about how the enhanced and tailored provision offered by a secure college might influence the behaviour of the courts when making sentencing decisions in respect of children and young people—so-called up-tariffing, as it has been referred to in other contexts.

We have seen a fall in the number of children and young people sentenced to custody in recent years. I hope noble Lords will be reassured that statute and international convention already provide that a custodial sentence must be imposed only as a measure of last resort. Statute provides that such a sentence may be imposed only where the offence is,

“so serious that neither a community sentence nor a fine alone can be justified”.

That is referenced in the Sentencing Guidelines Council’s current guideline, Overarching Principles—Sentencing Youths, which goes on to explain that even when a threshold for a custodial sentence is crossed, a court is not required to impose it. Before deciding whether to impose a custodial sentence on a young offender, the court must ensure that all statutory tests are satisfied, taking into account the circumstances, age and maturity of the young offender. Those tests are that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order; that a youth rehabilitation order with intensive supervision and surveillance, or with fostering, cannot be justified; and that custody is a last resort. To demonstrate that the statutory tests have been followed, the court must, in addition, state its reasons for being satisfied that the offences are so serious that no other sanction is appropriate other than the custodial sentence.

As regards the length of the sentence, the court, again by statute, is required to set the shortest term commensurate with the seriousness of the offence, and those overarching principles I referred to earlier set out guidance on how the judiciary should approach deciding the length of the sentence for children and young people. Furthermore, courts will no doubt be aware that due to the variation in needs and vulnerabilities among children in custody, there is a range of provision. They certainly should be aware. As my noble friend Lady Linklater will know, there are secure children’s homes, secure training centres and young offender institutions, as well as, in future, we hope, secure colleges.

When sentencing children and young people, the court can determine only the type of sentence to be imposed and its length. The decision on which type of establishment a child or young person is placed in is taken by the Youth Justice Board for England and Wales, rather than by the court. Its experienced placement service considers factors specific to the young offender—for example, their age and needs.

Finally, the noble Baroness noted that the amendment would have the wider effect of fettering the discretion of the independent Sentencing Council by stipulating precisely what its guidelines should say. That is a road which I am sure noble Lords would not wish us to go down.

I hope, therefore, that I have assuaged noble Lords’ concerns sufficiently for them not to press this amendment also.

[Lord Beecham]

My Lords, I look forward to whiling away the long Summer Recess by reading the Minister’s helpful replies in Hansard, and his even more helpful letters, which will no doubt find their way to me and to other noble Lords. It is, however, necessary to say that what we are being effectively invited to do is to sign a blank cheque to as yet unknown operators of an entirely new institution conceived on the basis of no evidence and with no clear idea of how it is to operate.

In a particularly sensitive area of penal policy, indeed social policy, that is simply unsatisfactory, and I have no doubt that many of us—from different parts of the House—will wish to return to these matters on Report. Having said that, I beg leave to withdraw the amendment.

Amendment 42E withdrawn.

Amendments 42F to 42K not moved.

Amendment 42L

Moved by

[Lord Marks of Henley-on-Thames]

42L: Clause 29, page 31, line 15, after “further” insert “provisions and”

[Lord Marks of Henley-on-Thames]

My Lords, Amendment 42L is merely formal. This group refers to the use of force in the secure colleges, and in particular to force against young persons detained there.

Amendment 42M, which is not purely formal, would require the secure college rules, in so far as they authorise the use of force against young offenders—it is much narrower than the other amendment relating to procedure—to be made by statutory instrument under the affirmative rather than the negative procedure. Under this amendment, it would also be a requirement that the Secretary of State should consult on the proposed secure college rules with the Youth Justice Board and the Independent Restraint Advisory Panel before laying a draft before Parliament.

The requirement for an affirmative resolution for secure college rules authorising force was a recommendation of the Delegated Powers and Regulatory Reform Committee, on which I serve. The recommendation was made notwithstanding that other prison rules—even for young people, as my noble friend has pointed out—are subject to the negative procedure. However, these are extremely important rules concerning the use of force against children. The committee was very influenced by the clear views of the Joint Committee on Human Rights and the decision of the Court of Appeal in 2009 in C v the Secretary of State for Justice that the proposals for the use of force for the purpose of maintaining good order and discipline were, as they stand in the Bill, inconsistent with Article 3 of the European convention.

The provisions authorising the use of force in the Bill for contracted-out secure colleges are indeed profoundly discouraging. As I mentioned, force is to be permitted to be authorised for purposes which include ensuring good order and discipline on the part of inmates and attending to their well-being. These purposes are far too wide. They smack of a military origin and are out of sympathy with contemporary views on the restriction of the use of force against children. Your Lordships will wish to be extremely vigilant where we are concerned with the authorisation of such force. We accept the Joint Committee’s clear view that the proposed authorisation of force would infringe Article 3.

Contemporary views on the use of force against young people are that the correct way to frame such authorisation is to ensure that the force used is minimal and restricted to what is absolutely necessary. Our Amendment 42N attempts to achieve this and its purposes are restricted by reference to five conditions. It says that,

“the first condition is that the force is authorised only for the purpose of … self-defence or the protection of others, including the protection of the person against whom the use of force is authorised … the prevention of serious damage to property”,

preventing escape and carrying out an authorised search. The second condition, which is crucial, is that force can be authorised for use only “as a last resort”. The third is,

“that the force authorised must be the minimum necessary to achieve the purpose”.

The fourth is that the force must be used,

“for the minimum duration necessary to achieve”,

that purpose, and the fifth is that the force should be,

“limited to techniques forming part of an approved system of restraint”.

We have added to that a requirement that:

“Secure college rules must provide that”,

all those who are “authorised to use force” should have been properly trained,

“in the use of force and in minimum restraint techniques”.

This represents a sensible contemporary view of the appropriate authorisation of the use of force in such colleges as are proposed for the restraint of young people. We contend that these restrictions should appear on the face of the legislation, in the terms that we have described. I beg to move.

[Lord Ramsbotham]

My Lords, I shall speak briefly to Amendments 46 and 46A in this group. All I want to say is that I for one simply do not understand why there is any need to have this proposal in here, when already there has been an independent review of restraint in juvenile secure settings, which was chaired by the previous chairman of the Royal College of Psychiatrists. She was a most eminent adolescent psychiatrist and she produced what were called minimum rules, which were published by the previous Secretary of State. If minimum rules for the use of restraint in secure children’s settings have already been produced by a Secretary of State, I simply cannot see why there is any need to go down this route, which seems to be an own goal of monumental proportions when there is already something to prevent you even being on that pitch.

22:14

[Baroness Stern (CB)]

My Lords, I will not add to the Minister’s misery for too long and will speak briefly in support of these amendments.

In 2011-12, according to figures from the Justice Select Committee, there were 8,419 incidents of “restrictive physical intervention”, which I know means force, on children and young people under 18 in custody. This figure was a 17% increase on the figure for the preceding year. Two hundred and fifty-four of these incidents led to injury, 236 of those were minor injuries and 18 children were seriously injured. We know about these children. Nearly all of them grew up seeing violence between men and women, by men and women on children, by children on each other and on their streets—violence is all around them. Then they progress to the care of the state, when they are classified as offenders or remanded in custody en route to becoming offenders, and we subject them to more violence. We should restrict as far as is humanly possible the amount of violence in institutions run by the state, not open the door to its greater use. Therefore, will the Minister explain why, since these are to be secure colleges and places of education where children will presumably be helped to build self-esteem and confidence, the Government are opening a discussion on widening the circumstances in which the use of violence is permitted?

Furthermore, I understand that in the current system to which the noble Lord, Lord Ramsbotham, has just referred, two pain infliction techniques are still allowed. One involves bending the thumb backwards until the pain is so severe that the restraint is successful and the other involves applying pressure to the child’s neck. The argument for these techniques is that, in a life or death or serious danger situation, inflicting pain is a quick way of stopping the dangerous behaviour. Will the Minister tell the House whether it is envisaged that pain distraction techniques will be available to the teachers and other staff in secure colleges to deal with threats to good order and discipline? I mention teachers specifically because it is hard to see how a person helping a child to learn can also inflict painful violence on that child. I would also like to ask the Minister how he, as an extremely eminent lawyer, views the compatibility of the Government’s proposed regime for the use of force in a secure college with the United Kingdom’s obligations under the Convention on the Rights of the Child.

[The Earl of Listowel]

My Lords, experienced practitioners in residential settings, particularly local authority secure children’s homes, always tell me that the key to behaviour management and to avoiding escalation into using force is building relationships with the staff.

I was grateful for the Minister’s careful and considered response to earlier concerns. However, I go back to the staffing because in this country there seems to be such an underestimation of the level of qualification, understanding and support and development that staff need to work with vulnerable children, certainly those in our children’s homes, which I frequently visit. Ninety per cent of staff in children’s homes in Denmark have a degree-level qualification. In Germany, the figure is 50%, whereas in this country it is 30%. That was the situation about five years ago. Yet in Denmark and Germany half of children in care are kept in residential settings, so they have a far lower level of complex needs. We have far less qualified staff working with more vulnerable children. I am afraid that is a common experience across our children’s services in this country. We underestimate the skill involved in working with children who have been deeply damaged and the need to have really well qualified, reflective practitioners.

I visited Rainsbrook Secure Training Centre shortly after the death of Gareth Myatt while he had been restrained. My sense from that visit was that there was great regret but that it was okay: procedure had been followed. That generally sums up the culture in this country. We train staff up to be competent and follow procedure. In certain circumstances that is exactly right. What those on the continent have done is to recruit and select people who can think and who are deeply reflective, and who are trained to understand child development. They work hand in hand with mental health professionals to reflect on their relationships with young people and get the best from them.

If the Minister is successful in getting contracts for qualified staff who understand child development and, because they do that, work with mental health professionals to reflect constantly on their relationships with young people, we will be able to avoid the use of force as far as possible. In a large institution, however, it may be more problematic. There have been 16 deaths of children in custody since 2000; all of those have been in the larger institutions, the YOIs and the STCs, and not one in a local authority secure unit. Obviously they have had more children go through them, and that is important to bear in mind. I look forward to the Minister’s response.

[Baroness Howe of Idlicote]

My Lords, I shall share just a brief word, because I was unaware that we were going to be dealing with this clause. If we had been told that there are already minimum rules for restraint in existence, and bearing in mind strongly what has been said about the damage that would almost certainly have been done to these children over a number of years, as the noble Baroness, Lady Stern, stressed, then I think that it would be a really dangerous scenario to assume that what was described as two pain infliction methods would be the expected way of dealing with severely damaged children. They would be likely to be far more dangerously infected with these sorts of policies going into adulthood.

I hope that the Minister will be able to reassure us that an extremely careful look will be taken at whatever forms of restraint are to be used. The point made about properly trained staff, who know what they are doing, is crucial too.

[Baroness Linklater of Butterstone]

My Lords, the Joint Committee on Human Rights has found,

“that it is incompatible with Articles 3 and 8 ECHR for any law, whether primary or secondary legislation, to authorise the use of force on children and young people for the purposes of … discipline … we recommend that the relevant provision in Schedule 4 of the Bill should be deleted, and the Bill should be amended to make explicit that secure college rules can only authorise the use of reasonable force on children as a last resort; only for the purposes of preventing harm to the child or others; and that only the minimum force necessary should be used”.

The children and young people who are in custody are the most needy and difficult in the system, as we have already agreed, and present many and ongoing challenges. That is why it is so important that force is never, or extremely rarely, used. It is also why the experience and training of staff is paramount. I have seen expert, careful and skilled staff manage a potentially explosive situation and ensure that calm prevailed without any need to use force. It was most impressive.

Force tends only to provoke force and exacerbate situations in a distressing way. It also legitimises the use of force by staff and sends out the very same message to the young people, which, of course, is precisely the opposite of what is needed. That is why it is so important that we have much more detail on what the training, skills and experience of the staff who are likely to be employed in the secure college will be. I hope that the Minister will be able to give us an explanation and reassurance that special attention is going to be paid to this issue. An establishment of the scale planned by the Government is likely to create the most challenging environment that anybody working in this field will ever have had to deal with.

It appears that MoJ officials are planning to outline their expectation of when force can be used, but we urge that primary legislation remains the proper place to ensure proper safeguards. However, I understand that it is highly likely that the passage of this Bill will be completed before the final version of the rules is published, thus preventing parliamentary scrutiny. I hope the Minister can give some clarity on this.

[Lord Beecham]

My Lords, one of the most reprehensible provisions in this deeply flawed part of the Bill is that dealing with the power to be invested in those contracted to run secure colleges to use force to maintain good order and discipline, as set out in paragraphs 8, 9 and 10 of Schedule 6. Curiously, paragraph 10 of the schedule empowers a secure college custody officer, whose qualifications, as we have already heard, are not prescribed, to use reasonable force “where necessary” in carrying out the functions set out in paragraphs 6 and 9,

“if authorised to do so by secure college rules”.

Yet, as we have already heard, the Bill provides no mechanism for parliamentary approval of those rules.

The schedule therefore creates a situation in which force can be used—on children as young as 12 as the Bill now stands—to,

“prevent their escape … to prevent, or detect and report on, the commission or attempted commission … of other unlawful acts … to ensure good order and discipline … and … to attend to their well-being”.

The notion of exercising force to attend to somebody’s well-being is intriguing. It would be interesting to hear the Minister’s explanation of that term. In addition, the custodial officer may use such force to search a person detained in the college. We are not just talking about conduct but about searches. These are very widespread areas in which force can be used.

As we have heard, the Joint Committee pointed out that this topic has been exhaustively examined by the committee itself, beginning as long ago as 2007-08 with its report The Use of Restraint in Secure Training Centres, and its view was upheld by the Court of Appeal which held that the use of force to maintain good order and discipline was incompatible with Article 3 of the European Convention on Human Rights which prescribes the right not to be subjected to inhuman and degrading treatment. Amazingly, the Government sought to argue that the court’s decision was limited to particular techniques to cause pain, whereas the committee points out that the court’s judgment,

“was quite unequivocal that the Rules were … incompatible with Articles 3 and 8 ECHR ‘and must be quashed on that ground’”.

The committee went on to dismiss the ludicrous attempt by the Government to shelter behind the fact that the Bill leaves the use of force to be defined by the college rules. It goes on to question the compatibility of the use of force to enforce good order and discipline with the UK’s obligations under the UN Convention on the Rights of the Child, as referred to by the noble Lord, Lord Marks, and the UN Convention against Torture. The former explicitly declares:

“In all actions concerning children … the best interests of the child shall be a primary consideration”.

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In relation to the latter, the UN Committee against Torture in May last year reiterated the Committee on the Rights of the Child’s recommendation to ensure that restraint is used only as a last resort, and exclusively to prevent harm to the child or others, and that all methods of physical restraint for disciplinary purpose should be abolished. The committee therefore recommended that Schedule 4 to the Bill be deleted and the Bill amended so that secure college rules can authorise the use of reasonable force on children only as a last resort and only for the purpose of preventing harm to the child or others, and that only the minimum force necessary may be used. This is embodied in the amendment in my name, which echoes in many respects the amendment moved by the noble Lord, Lord Marks.

To see visited on children anything analogous, however remotely, to the shocking violence perpetrated on some of those deported from our country—or to what is alleged to take place in detention centres where they are detained—would be utterly unacceptable. Noble Lords around the House have indicated their very serious concerns about how, without any parliamentary oversight, rules may facilitate the use of force going well beyond anything that would be acceptable in the light of the views of not only the Joint Committee but the courts and the conventions to which we as a country subscribe.

I cannot believe that the Government will stand on the position that is outlined in the Bill, particularly having regard to the widespread applications of force which I discovered only when looking in detail at the schedule. It is alarming that very young children can be subjected to force covering such a wide range of occasions as the schedule sets out. I urge the Minister to think very carefully about the breadth of application and the terms on which force might be used. If there is no indication that that will change, I am sure that many of us will wish to return to the issue on Report.

I hope that between now and Report the Government will look very seriously at the issue, which has been raised not only in this House but by all interested organisations concerned with the welfare of the child. As a matter of fact, it is in the interests of the staff in these institutions to have clear guidelines about what is acceptable and what is not. It should be made clear to them at the outset that any temptation to use excessive force is beyond their powers and will not be sanctioned by whoever operates the institutions. I return to the point that it is important that there should be oversight by this House and the other place of precisely what will be done in our name to children detained in such an institution.

[Lord Faulks]

My Lords, I am grateful for the opportunity to debate these amendments from various noble Lords. I recognise that the use of force in relation to young people in custody is a sensitive and important issue. I will explain the effect of these amendments, and also our intentions in respect of the use of force.

The effect of the amendment proposed by the noble Lord, Lord Ramsbotham, would be to remove the power of custody officers in secure colleges to use, if authorised to do so by the rules, reasonable force where necessary in carrying out their functions. I am sure that noble Lords would agree with me that there are some circumstances, such as to prevent an escape from custody or to prevent harm to themselves, another young person or staff member, in which the use of force could be necessary and where it is desirable to have rules setting out when, how and what force a custody officer is authorised to use. The effect of this amendment would be to prevent that, and we believe that that is too limiting.

Another amendment differs in that it sets out a series of circumstances in which rules may authorise the use of force. The effect of this amendment would be to restrict the circumstances in which custody officers can use force, if authorised by rules to do so, to the prevention of harm to the child or others.

Amendments 42N, 46B and 46C, tabled by the noble Lords, Lord Marks, Lord Carlile and Lord Dholakia, and the noble Baroness, Lady Linklater, would prevent the use of force to ensure good order and discipline and have the effect of setting out in detail the conditions which must be satisfied in relation to any use of force by secure college custody officers.

In relation to use of force more widely, I should like to make clear, and I can reassure your Lordships, that we agree with the conditions set out in these amendments that in all cases force should be used only as a last resort; that the minimum amount of force should be used for the minimum time possible; that only approved restraint techniques may be used; and that they should be used only by officers who have received training in those techniques.

Considerable improvements have been made to restraint practice in recent years, including the introduction of a new system of restraint known as MMPR. It has been independently assessed by a panel of medical and child welfare experts. The Independent Restraint Advisory Panel was formed specifically to monitor the implementation of MMPR. It is currently being rolled out to under-18 young offender institutions and secure training centres. It is our intention that this system of restraint would also be used in secure colleges.

The fundamental principle of MMPR is to minimise and, wherever possible, avoid the use of physical restraint. Staff working with young people in STCs and under-18 YOIs receive a comprehensive programme of training that puts considerable emphasis on using appropriate de-escalation and deceleration techniques—non-physical interventions—to ensure that restraint is only ever used as a last resort, when no other intervention is possible or appropriate, and that if use of force is required it is the minimum possible for the minimum amount of time.

I recognise that the issue of use of force to ensure good order and discipline is one of the primary concerns behind these amendments. A custody officer’s duties include ensuring good order and discipline, and the Bill provides that reasonable force may be used for this purpose, but only if specific provision is made in secure college rules. Rules are the correct place to be setting out the boundaries on use of force. The drafting in the Bill ensures absolute clarity on this point; a custody officer must be authorised by the rules to use force. I recognise that the term “good order and discipline” could be seen to be too broad in this context, and perhaps the term “discipline” is not helpful, as it could imply some element of punishment. We are clear that any use of force for the purposes of disciplining and punishing is prohibited. However, it is worth noting that use of reasonable force to ensure good order and discipline is provided for elsewhere in legislation. For example, although a different setting to custody and covered by specific guidance, use of reasonable force for maintaining good order and discipline is permitted in schools.

As I set out in the document that I sent to all Peers before Second Reading, the Government’s position is that force may be used only to ensure good order and discipline where there are clear risks to maintaining a safe and stable environment for young people, and that the use of force is a necessary and proportionate response in order to protect the safety and welfare of the individual or of others.

We consider that there may be limited situations in which all attempts at resolving and de-escalating an incident have failed, and where a young person’s behaviour is such that it is impacting on their own safety and welfare or that of others. In those limited situations, and then only as a last resort, we believe that some force—the minimum necessary, for the shortest time possible and subject to strict conditions and safeguards designed to ensure respect for the young person’s dignity and physical integrity—may be necessary.

Furthermore, force for reasons of punishment would not be permitted, and use of restraint techniques intended to cause pain would not be permitted. Use of force would be permitted only when staff are satisfied that they have assembled the resources to ensure the safest use of force and a full risk assessment has been conducted. This includes the attendance of healthcare staff.

As I explained to the House at Second Reading, ahead of Report we will launch a public consultation on our approach to secure college rules. This consultation will include our proposals relating to the use of force to ensure good order and discipline, as well as the use of force more widely. I will welcome responses from noble Lords and others on this important issue.

Regarding the noble Lord’s Amendment 42M, as a matter of principle I do not think it is necessary to specify in the Bill who the Secretary of State has to consult with. We will of course work closely with the Youth Justice Board as we plan for the introduction of the pathfinder secure college. At the end of April 2014, following the conclusion of its work, the Independent Restraint Advisory Panel was dissolved.

I recognise that the use of force in youth custody is a very sensitive issue. We are conscious of our international obligations and of the implications of the Court of Appeal’s decision in C. I hope in this reply I have been able to provide some assurance of the Government’s intentions regarding the use of force in secure colleges. I should also add that we are conscious of the Delegated Powers Committee’s recommendation, which we will consider, and I look forward to continuing this discussion through our public consultation. In the light of that reassurance I hope the noble Lord will withdraw the amendment.

[Lord Ramsbotham]

My Lords, I was responsible for conducting an inquiry into the death of an Angolan called Jimmy Mubenga in an aircraft on the way back from Heathrow. He was under the escort of G4S guards, who have subsequently been charged with his murder. One of the problems that has come up with the Home Office is that nobody is responsible for the oversight of the training and assessment of the security company guards who are meant to escort people who are being deported from this country.

The problem is that the secure college staff will also be from the private sector. The Home Office is currently working out a code of practice that includes the involvement of the Security Industry Authority, which has responsibility for the supervision of people working in the criminal justice system. I very much hope this will be included in the work. It is all very well saying that staff will be trained, but who is responsible for both supervising the training and making certain that people’s training is up to date? That has been one of the problems with the escorts of people who are deported.

[Lord Faulks]

I am grateful for that contribution. I do not propose to give a detailed response now, but it is something that we will factor in.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful to my noble friend for the response he has given. It appears, at least in principle, that all the conditions we set out in our amendments are accepted by the Government. We want to see some security about the future implementation of those conditions. However, we understand that the Government’s position is sympathetic to what we say. Saying that, I beg leave to withdraw the amendment.

Amendment 42L withdrawn.

House resumed.

House adjourned at 10.43 pm.