Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, I remind the Committee that if there is a Division in the Chamber, the Committee will adjourn for 10 minutes from the sound of the Division Bell.
National Minimum Wage Regulations 2015
Lord Popat
That the Grand Committee do consider the National Minimum Wage Regulations 2015.
Relevant document: 21st Report from the Joint Committee on Statutory Instruments
Lord Popat (Con)
My Lords, before turning to the reason for this debate, I will focus on the success of the national minimum wage. Recognition must be given to the Labour Party for introducing the national minimum wage, which last year was voted the most successful government policy of the preceding 30 years.
The key reason for its success is its simplicity. An independent Low Pay Commission provides balanced advice to the Government about minimum wage rates. But setting the rate is just the start. The Government have taken action to create the conditions for economic growth and higher living standards. Since the election, an extra 1.88 million people are now in work, and wages are now growing faster than inflation.
The Government also have a major role to play in ensuring that the minimum wage is enforced. That is why we have increased enforcement budgets by 50% over this year and next. There are now tougher penalties. We have increased the financial penalty percentage from 50% to 100% of unpaid wages owed, and the maximum penalty from £5,000 to £20,000. Provisions in the Small Business, Enterprise and Employment Bill will change the scope of the maximum penalty from a per business basis to a per worker basis.
There are also reputational consequences. The Government have already named 162 employers who have not complied with the national minimum wage. Such bad publicity will be an additional deterrent to employers who might otherwise be tempted not to pay the national minimum wage.
I turn to the reason for this debate. An important element of ensuring compliance is the clarity and accessibility of information. Since their introduction 17 years ago, the regulations have been amended numerous times, resulting in 27 separate sets of regulations. For such important legislation that is directly relevant to so many workers and their employers, lack of clarity could result in people not being paid what they are legally entitled to. This draft instrument consolidates the 27 sets of regulations into one in order to make the rules clearer and more workable for employers and workers alike.
In response to an eight-week consultation last summer, most of the 22 respondents told us that, while they welcomed the consolidation, even greater clarity would be welcome, particularly in the guidance. We agree. Once these regulations take legal effect, we will review the guidance during 2015 in order to improve the information available to individuals and employers. I commend the draft regulations to the Committee.
Baroness Donaghy (Lab)
My Lords, these proposals seem to be eminently sensible and are to be welcomed—and it is very good to have cross-party agreement on the success of the national minimum wage. As the Minister will know, I served as one of the first members of the Low Pay Commission; we established the first figure for the minimum wage. More importantly, we established the framework for what was included—and what was not—in the minimum wage, such as overtime, London weighting and all the other important details that have led to the continuing success and recognition of the minimum wage.
I do not think that it is remembered now what pressures there were before the minimum wage was established—political pressures and also pressures on the Low Pay Commission—for absolute secrecy, because any leaks would have undermined the whole venture. I remember one of the away weekends that the Low Pay Commission had in its first few months. It was in the days before everybody had a mobile phone. We were incommunicado in this particular place. Relatives could get through only by ringing the residential place we were staying in and using the code word “chrysanthemum”. Has the world not changed in 17 years? It seems laughable that so few people had mobiles. I am not sure how many relatives of mine could even have said the word “chrysanthemum”.
Nowadays, we underplay—not deliberately, because it is so well established on a cross-party basis—the importance of the minimum wage. I very much hope that it will remain a cross-party venture and that we do not play politics too much with this issue. The Low Pay Commission does a very important job representing, on a tripartite basis, all the interests involved in the world of employment—and long may that continue.
Lord Young of Norwood Green (Lab)
My Lords, I, too, welcome this particular statutory instrument and the introduction by the Minister. I thank my noble friend for her historical assessment. I am sure that her relatives could have said “chrysanthemum”. They might have had trouble spelling it, but that is another matter.
I thank the Minister for recognising that we introduced the minimum wage—though, I have to say, that was against the wishes of some and with dire predictions about the millions of jobs that would be lost. I am glad that we have put that behind us and I welcome the enthusiasm now.
Obviously, anything that simplifies and clarifies is to be welcomed. I welcome the point about the enforcement budgets being increased. I am interested in whether the statistic of 162 employers being named is, as I presume, for 2013-14. Maybe I missed the precise date. I just wonder whether the number of employers being reported is going up. Is the number of queries to workers’ rights helplines increasing?
I note from the Explanatory Memorandum that the Minister is due to clarify the guidance this year. It is really important that we get that right. As a matter of interest, are we keeping any statistics on the fact that, over the recent past few years, we have now had introduced the concept of a living wage? I do not expect the Minister to have any information on that, but I wonder if we are keeping any statistical evidence on it. If he has something on it, better still. Other than those questions and comments, I am happy to support this.
Lord Popat
I thank the noble Lord, Lord Young, and the noble Baroness, Lady Donaghy, for their contributions to this debate. As I said in opening, this was the best legislation we have had in 30 years. I hope the noble Lord will believe that when I got the Motion from the officials, I insisted on putting the point that this was Labour Party policy and the best legislation we have had in some years. I thank the noble Lord for his approval of this Motion.
I commend the noble Baroness, Lady Donaghy, for her work on the national minimum wage and the work that she did with the Low Pay Commission. What a success story. I am glad that it is cross-party issue and that as a Government we are doing something for the people in this country who are at the bottom end of the market in terms of the wages that they are on. I am glad that my Government have raised the allowance for people to have that extra money. The personal allowance has gone up from £6,000 to roughly £10,000 in the past five years.
The noble Lord, Lord Young, made a point about the employers named in 2013 and 2014. We are naming more employers. The revised naming and shaming scheme came in in October 2013. The new rules are part of the Government’s efforts to toughen up the enforcement of the national minimum wage and increase compliance. The 162 employers were mentioned earlier. Between them they owed substantial sums in arrears to their workers, and by naming and shaming employers it is hoped that bad publicity will be an additional deterrent to employers who would otherwise be tempted not to pay the national minimum wage. We received more complaints about the national minimum wage through the helpline during 2014-15 and we continue to increase awareness of the national minimum wage among employers and employees. I commend the regulations to the Committee.
Groceries Code Adjudicator (Permitted Maximum Financial Penalty) Order 2015
Lord Popat
That the Grand Committee do consider the Groceries Code Adjudicator (Permitted Maximum Financial Penalty) Order 2015.
Relevant document: 22nd Report from the Joint Committee on Statutory Instruments
Lord Popat (Con)
My Lords, the order sets the maximum financial penalty that may be imposed by the Groceries Code Adjudicator, and completes the set of regulatory powers available to the adjudicator to ensure that the large supermarkets deal fairly with their suppliers.
Before moving on to the purpose and effect of the order, it might be helpful if I talked a little about how the adjudicator came to be created. The genesis of the Groceries Code Adjudicator regime is to be found in the market investigation into the supermarkets conducted by the then Competition Commission between 2006 and 2008. The commission found that the problems in the sector were concentrated in the commercial dealings between the largest supermarkets and their direct suppliers. It therefore used its powers under the Enterprise Act 2002 to introduce the Groceries Supply Code of Practice in 2009.
The scope of the code is precisely defined. It governs the commercial relationships between the 10 largest UK supermarkets—those with a turnover of more than £1 billion a year—and their direct suppliers of food, drink and household products. The code requires the supermarkets to deal fairly with their suppliers and it includes specific provisions, among other things, governing terms of supply agreements; the timing of payments; marketing and promotional costs; and payments as a condition of being a supplier. It does not cover indirect suppliers further down the supply chain. Nor does it govern questions relating to pricing, which are the responsibility of the Competition and Markets Authority under general competition rules.
The Competition Commission required the appointment of code compliance officers by the supermarkets. It discussed the possibility of a regulator to enforce the code, but did not go so far as to recommend one at that time. I appreciate that many felt that the absence of a regulator was an unsatisfactory arrangement from the start. The Commons Select Committee on the Environment, Farming and Rural Affairs, for example, described it as akin to setting the rules of the game but then failing to appoint a referee.
Ministers shared that view. That is why they legislated for the creation of the adjudicator to enforce the code. Christine Tacon took up her post as the first adjudicator in June 2013. Ministers were also determined that the adjudicator should have the enforcement powers necessary to ensure compliance with the code. Those powers are extensive. The adjudicator has a duty to arbitrate any dispute that is referred to her by a supplier, and she has the discretion to arbitrate if the referral is by a supermarket. The adjudicator may also launch an investigation where she judges that there are reasonable grounds to suspect that a supermarket has breached the code, or has failed to comply with earlier statutory recommendations made by the adjudicator.
Lord Young of Norwood Green (Lab)
My Lords, we do support it. I welcome the introduction by the Minister but I have a couple of points to make. I welcome the Government’s decision to reject the retailers’ view that somehow the maximum penalty should be much more complex, and to keep it simple at 1% of turnover. The question of whether this is absolutely the right figure is something that we can look at in the review next year.
I also welcome the point about the wide powers of investigation and the increase in resources. It must have been a coincidence but, as I was flicking through the pages of the Sunday Times business section, I happened to notice a little article about a German supplier to a company complaining that the company had a four-month payment regime, whereas, interestingly, Germany has a one-month regime. I have not been able to verify that but the Groceries Code Adjudicator commented that she did not propose to launch an investigation into this. I was a bit surprised at that, as I thought the area would be worth some investigation. Four months seems a significant period of time for a company to withhold payment to its direct suppliers. I would welcome the Minister’s response to that.
Lord Popat
I am grateful to the noble Lord, Lord Young, for his contribution and for accepting this SI. He mentioned the penalty of 1%. In many ways, he is right; I think it is best to keep it simple. One per cent is a maximum. Bearing in mind that the turnover of large supermarkets can exceed £1 billion, 1% can be a substantial sum of money. Again, if we find that this is not the correct amount, we can always review the legislation.
The noble Lord mentioned the article in the Sunday Times. I have a copy of it attached to my file. Lidl was the supermarket in question. I am sure that this matter will be investigated by Christine Tacon. The payment period is longer in the UK than in Germany, but there has been no Grocery Code Adjudicator investigation. The Grocery Code Adjudicator is independent. The Small Business, Enterprise and Employment Bill, which is having its Report stage tomorrow, is looking at prompt payment and will probably incorporate what Lidl has done to its suppliers by delaying payment for as long as four months. It might come under that jurisdiction rather than the Grocery Code Adjudicator.
Lord Young of Norwood Green
That might be the case, but the Grocery Code Adjudicator made a public statement that she did not intend to investigate it—so it is an important decision. There ought to be some dialogue with the Grocery Code Adjudicator to find out why this does not merit at least something, even if it is not a formal investigation. It is quite an important issue, and I would have thought that it merited some investigation. I cannot say that I am completely satisfied with the reply. I am not expecting the Minister to respond now, but when he has had further opportunity to reflect, perhaps he will.
Lord Popat
My briefing states that the GCA is independent and the small business Bill will look into it. I will certainly write to the noble Lord. The article states that the company pays its suppliers in Germany in 30 days but takes four months to pay in the UK—so it is something that we must look at.
The GCA’s published guidance commits her to a stepped approach to enforcement. The adjudicator has said that wherever possible, she will rely on informal regulatory actions to secure compliance with the code. For example, the adjudicator has secured the agreement of most of the supermarkets to limit forensic audits of transactions with suppliers to the previous two years, rather than six years. The GCA meets Ministers regularly and its performance will be reviewed by Ministers in 2016, so I think it is best if I write to the noble Lord on this matter. I read the article in the Sunday Times and have a copy with me. I will refer it to officials and write to the noble Lord.
Motion agreed.
Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015
(9 years, 2 months ago)
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Lord Newby
That the Grand Committee do consider the Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments
Lord Newby (LD)
My Lords, I shall speak also to the draft Financial Services and Markets Act 2000 (Miscellaneous Provisions) Order 2015. I am pleased to introduce these statutory instruments.
The Government have fundamentally reformed regulation of the consumer credit market, transferring regulatory responsibility from the Office of Fair Trading to the Financial Conduct Authority on 1 April last year. The FCA is better resourced and more empowered than its predecessor and has been equipped with flexible rule-making powers to ensure that it keeps pace with developments in the market. The FCA regime is already having a significant positive impact and is helping to deliver the Government’s vision for an effective and sustainable consumer credit market that is able to meet consumers’ needs.
The raising of standards will improve further as the FCA undertakes authorisation assessments to assess firms’ fitness to trade—a process that has already begun for those industries regarded as the riskiest, including payday lending—and these instruments to be debated today help to support the effectiveness of the FCA’s regulatory regime.
First, the e-commerce order provides the FCA with powers to tackle credit firms, including payday lenders, which abuse their rights under the e-commerce directive to evade FCA rules. As noble Lords will be aware, the Government have taken robust action significantly to improve protections for consumers in the payday lending market. The Government transferred regulatory responsibility to the FCA’s powerful new regime and legislated to require the FCA to introduce a cap on the cost of payday loans.
The Government strongly welcome the payday lending rules introduced last year by the FCA, including limits on rollovers and the use of continuous payment authorities, and tougher requirements around affordability assessments. On 2 January, the FCA’s cap on the cost of payday loans came into force, as required by the Government. Consumers are far better protected under the FCA regime. The FCA has a wide-ranging enforcement toolkit to take action where wrongdoing is found, and the rigorous authorisation process for payday lenders is under way.
FCA regulation is already having a dramatic impact on the payday market—indeed, the FCA found that the volume of payday loans fell by 35% in the first six months since it took over regulation. These data are from before the cost cap took effect in January.
The Government are committed to preventing the gaming of the FCA’s regulatory regime, including the risk that lenders seek to relocate abroad and lend back into the UK. The important powers in this order will protect UK consumers by giving the FCA powers to take action against credit firms that abuse their rights under the e-commerce directive to establish themselves in another EEA member state but lend primarily to the UK. The powers will enable the FCA to require credit firms to comply with FCA rules—including, in the case of payday lenders, the price cap—or require them to seek full authorisation to continue carrying out their activities. The order therefore represents an important reinforcement of the FCA regulatory regime, helping to protect UK consumers from unfair costs and harmful practices.
I turn now to the miscellaneous order. This order will address a number of technical issues to ensure that consumer credit regulation strikes the right balance between proportionate burdens on business and providing robust protections for consumers. In particular, the order makes several provisions to minimise unnecessary regulatory burdens on firms.
For example, the order adjusts the working definition of a “domestic premises supplier”. This definition is important because it requires firms selling goods in a customer’s home to comply with the higher regulatory standards in the FCA’s “full permission” regime, thereby helping to protect consumers from the pressure-selling of goods or services on credit. However, it is important that this definition is drawn correctly to minimise unnecessary regulatory burdens on businesses and support the provision of goods and services to consumers.
The order ensures that firms providing goods or services in a home where no attempt is made to sell other goods or services, or anything extra provided is free of charge, are not regarded as “domestic premises suppliers”—for example, where a mobility aid supplier simply visits the customer’s home to measure up before a contract is signed, or where a kitchen supplier delivers and installs an item after it has been ordered. These firms can therefore benefit from the FCA’s lower-cost “limited permission” regime.
The order also makes a number of other technical adjustments to ensure proportionate regulatory burdens. For example, it ensures that solicitors—who are already subject to their professional regulatory regime—will not require FCA regulation when undertaking credit activities incidental to the firm’s professional services. I beg to move.
Lord Sharkey (LD)
My Lords, I will speak only to the first of the two orders before us. This order has the usual eye-catching name for such things: the Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015. A better and clearer name for the SI would be: “Closing a Gigantic Payday Lending Loophole”, because, as the Minister said, that is exactly what the SI does.
On 9 December 2013, in response to amendments put down by the noble Lord, Lord Mitchell, and by me, the Government finally accepted the need for strict control of payday lending. The FCA rules that followed capped the cost of payday loans and limited the number of permitted rollovers. They also created the conditions for real-time data-sharing by lenders in order to reduce the incidence of multiple simultaneous loans. The Treasury and the FCA are to be congratulated on that. Together, with some prompting from your Lordships’ House, they have entirely changed the nature of the payday loan sector in the United Kingdom. What started out as outrageous and cruel usury has been reduced to more or less sensible costs and more or less sensible limits. The capacity of payday lenders to inflict terrible damage, as they were doing, on the most disadvantaged has been severely reduced, and I am pleased to be able to say that many payday lenders have simply shut up shop in the UK as a consequence of the new regime.
I do not think that the situation is ideal yet because, for many of us, the number of rollovers is too high, there is not yet a proper real-time database of loans outstanding and there is no mechanism for automatically preventing multiple simultaneous loans. Of course, as we speak, payday lenders are busy changing their business models in ways that will require continued vigilance on our part. We will have to see how all that works out.
In the debate of 9 December 2013, I raised for the first time the question of what seemed to me a gigantic loophole in the proposed new regulations. This was the loophole to do with the e-commerce directive, which we are discussing. As the Minister said, this directive would allow any payday lender to avoid our regulation if they were based elsewhere in the EEA and were trading in the UK only electronically. This would mean that any payday loan company could continue to operate in the UK but entirely outside our rules, caps and limits if it were based in the EEA and had no bricks and mortar presence here in the UK.
I asked the Treasury at the time what it intended to do about this. I had subsequent conversations with the Minister and officials about the problem. This order is, as the Minister correctly said, the solution to that problem. It closes the gigantic loophole in the regulations. If payday loan companies based abroad now try to use the e-commerce directive to avoid UK regulation, they can now be stopped from operating in the UK or forced to comply with our rules if they want to continue to operate in the UK. This is a very good and very necessary step forward, and I am delighted that the Government and the FCA have acted.
As the Minister said, this new order adds to the protection against the immoral and unscrupulous exploitation of the most vulnerable people in our society. However, it is a Treasury order and it is written in the Treasury’s normal, deathless—meaning, obvious-on-the-face-of-it—prose, which means that there are just a couple of questions that I would like to ask the Minister.
New Regulation 11A lists the kinds of activities that the order will apply to. Can the Minister say whether this list includes debt management companies? I know that he is aware of the wholly unacceptable charges and practices of some companies operating in this sector.
New Regulation 11B (2)(a) seems a little ambiguous. It says that the authority must be satisfied that the incoming provider,
“directs all or most of its activity to the United Kingdom”.
The question is: how is “most” to be interpreted here? Does it mean “most” by weight of advertising, “most” by number of customers or “most” by the value of lending to those UK customers? How will the authority arrive at a measure of whichever interpretation of “most” it wants to use? I very much hope that my noble friend the Minister will be able to say that the FCA will be able to use all or any of the above interpretations and that it will be able to use, as a conclusive determination, whatever measures it considers reasonable.
Those are details but, in this area, detail is often absolutely critical. However, I do not want the detail to overshadow my congratulations to my noble friend the Minister and the FCA. They have closed a potentially very damaging loophole in the payday regulations.
Lord Tunnicliffe (Lab)
My Lords, I start by welcoming the noble Lord, Lord Sharkey, to our debates. The noble Lord, Lord Newby, and I feel flattered that we are now three instead of our usual two on these instruments. The noble Lord, Lord Sharkey, and colleagues on my Benches are to be congratulated on the campaign they have waged on this issue. The noble Lord’s description of the e-commerce directive and a gigantic loophole is absolutely valid, and I join him commending the Government on closing that hole. However, we believe that this is only part of the way forward. The payday scandal has been attacked in the sense that many unscrupulous operators have been driven out of the market, and that will go further, but we wish to promote safer and more ethical forms of lending. We will try to ensure that co-operatives and mutual ownership models are able to compete on a level playing field. We will look to give greater power to local authorities to eliminate the spread of payday lending shops in town centres, and we will want to investigate ways in which to support mutuals—for example, by improving the regulatory structure in which they operate and making available support from the British investment bank. The sad fact is that we have problems in our society that mean that short-term loans are needed. It is not just about driving out the bad guys; it is about creating opportunities for a new breed of good guys. We already have credit unions to turn to as an example.
On the second order—and I thank the Minister for showing us how the two orders fit together—the Explanatory Memorandum makes perfect sense, except for the part of it that he explained, which I am left having trouble understanding. Paragraph 7.1 says:
“To extend the scope of the limited permission regime in relation to ‘domestic premises suppliers’”.
I see the importance of extending the scope to domestic premises suppliers. I went to the order—and you know that you are driven to your limit when you actually read the order—and I found that,
“domestic premises supplier” means a supplier who … sells, offers to sell or agrees to sell goods, or … offers to supply services or contracts to supply services … to customers who are individuals while the supplier, or the supplier’s representative, is physically present at the dwelling of the individual”.
I am gripped of the importance of the regulations applying in those circumstances. The key issue is the caveat in sub-paragraph (3B), which says:
“A supplier who acts as described in sub-paragraph (3A) on an occasional basis only will not be a domestic premises supplier unless the supplier indicates to the public at large, or any section of the public, the supplier’s willingness to attend”,
and so on. It seems that the differentiation is on whether they advertise or not. If I have got that wrong, I would be grateful to the Minister for writing to me. I cannot see how the words of the provision translate to the picture that he has just described, with what I would have thought was almost peripheral to suppliers not being covered rather than this specific thing, whereby,
“unless the supplier indicates to the public at large”.
I do not know what that means other than that they are in the advertising business.
Finally, does the Minister know of any specific instances where the issues that the order remedies have manifested themselves, or is this anticipatory and intended to stop a problem before it arises? Is he satisfied with the FCA’s performance as a regulator so far, since it took up those responsibilities from the OFT?
Lord Newby
My Lords, I thank both noble Lords who have participated in this debate. I, too, congratulate the noble Lord, Lord Sharkey, on his persistence in this area and on drawing this issue to the attention of the Government for the first time, I think. When he first did so, it was by no means clear that there was a legal route which enabled us to deal adequately with payday loan companies which just moved offshore. He spurred the creative minds in the Treasury to come up with a legal route, so we are extremely grateful to him for that.
He asked a couple of very specific questions, including whether the provisions include debt management companies. The answer to that is yes, they do. He asked how one defines “most” and gave a number of contributory definitions of “most”. It is for the FCA to determine that definition on a case-by-case basis. It will take into account all the factors in deciding how to do it.
The noble Lord, Lord Tunnicliffe, spoke of the Labour Party’s wish to promote a safer and more ethical lending environment. I think we all share that wish. That is why we have taken action on payday lending and have taken a range of actions to promote mutuals and credit unions, including giving £38 million to the credit union expansion project and undertaking a review of how we can promote credit unions further. Credit unions are, in the medium term, probably the best bet we have for many people having easy access to proper financial services and small loans. A key thing now will be to get credit unions up to the ease-of-use level that the payday loan providers have. To be critical of the payday loan sector, its great strength and weakness is that it is so easy to use. It is not so easy to get access electronically to your credit union account or to loans via credit unions. One of the key things that the credit union expansion project is doing is improving back-office infrastructure to enable credit unions’ systems to be more user-friendly, particularly for young people who are used to electronic methods of banking. I do not think we disagree on that.
The noble Lord, Lord Tunnicliffe, asked about the definition of “domestic premises supplier”. The key is to ensure that firms selling in the home, where there is a risk of pressure selling, are subject to greater regulatory scrutiny. We are clarifying that this includes where firms promote themselves as being willing to visit consumers in their homes. That makes them a domestic premises supplier, irrespective of the number of visits they make. This will make it easier for firms and the regulator to judge on which side of the line they fall. I think—and I will write to the noble Lord if I am wrong on this—that there is a big difference between a company that sells in its shop or online and then just delivers stuff to your house and a company which comes and gives a quote in your house. That is the sort of distinction we are trying to make. If I can expand on that further in any helpful way, I will do so.
Lord Tunnicliffe
I thank the noble Lord for that promise. I find the description that he just gave entirely understandable and reasonable but then I look at the draft legislation. It takes a heroic understanding of words to move from those in the order to the explanation I have just heard. If nothing else, I shall value the letter that explains how you move in such a way.
Lord Newby
It will be a great pleasure to give the noble Lord something of such value. We will attempt to do that.
Finally, the noble Lord asked whether we were satisfied with the performance of the FCA in taking over the reins of the OFT. The short answer is yes. Looking at the payday loans element alone, the impact of the FCA, combined with the legislative procedures that have been put in place, has been very dramatic in a direction that most people would welcome. The relative speed with which it was able to get the cap agreed and implemented is an example of that. The short answer to that question is yes, but of course both the Government and Parliament will scrutinise carefully what it does in future.
Financial Services and Markets Act 2000 (Miscellaneous Provisions) Order 2015
(9 years, 2 months ago)
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Lord Newby
That the Grand Committee do consider the Financial Services and Markets Act 2000 (Miscellaneous Provisions) Order 2015.
Relevant document: 22nd Report from the Joint Committee on Statutory Instruments
Financial Services and Markets Act 2000 (Banking Reform) (Pensions) Regulations 2015
(9 years, 2 months ago)
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Lord Newby
That the Grand Committee do consider the Financial Services and Markets Act 2000 (Banking Reform) (Pensions) Regulations 2015.
Relevant document: 21st Report from the Joint Committee on Statutory Instruments
Lord Newby (LD)
My Lords, these regulations ensure that a ring-fenced retail bank cannot be liable for pensions obligations arising from other parts of its wider banking group. These regulations are the final piece of secondary legislation necessary to bring about the ring-fencing of retail banking from investment banking. In completing this process, these regulations represent the final piece of legislation needed to complete the biggest ever overhaul of Britain’s banking system.
On election, the Government set themselves the task of fixing the banking system following the worst banking crisis in the entirety of British history. In 2010 we set up the Independent Commission on Banking—the ICB—led by Sir John Vickers to consider the options for structural reform of the banking sector. The ICB recommended ring-fencing core retail banking services from investment banking and trading.
Ring-fencing will insulate crucial core retail banking services, such as the taking of personal deposits, from shocks originating elsewhere in the financial system, and will make banks simpler and easier to resolve. This will help curtail the implicit government guarantee enjoyed by banks that are seen as too big to fail, and will protect taxpayer money from ever again being used to provide solvency support for failing banks.
One of the recommendations of the Independent Commission on Banking was that ring-fenced banks should not have any liabilities to group-wide pension schemes. The Financial Services (Banking Reform) Act 2013 gave the Government the power to ensure this, and these regulations exercise that power. They require ring-fenced banks to make arrangements to ensure that they do not have any shared pension liabilities with other group members or outside companies—with the exception of other ring-fenced bodies within the same group, and wholly owned subsidiaries. The regulations also give powers to the banks and to the trustees of banks’ pension schemes to ensure that the necessary changes can be made, and set out the role of the regulators, the PRA and the pension regulator for monitoring and assessing the changes.
The regulations are a necessary part of ensuring that there is a robust ring-fence in place protecting core banking services. Any shared pension liabilities could pose a huge risk to the viability of the overall ring-fence and could threaten the ability of the ring-fenced bank to maintain the provision of vital services. Collectively, the large banks run their pension schemes at a deficit that reaches the multiple billions of pounds. This means that were a non-ring-fenced investment bank to fail, the ring-fenced bank could suddenly be left with a large pension liability in the many millions, or even billions, of pounds that it might be unable to pay.
Although implementing these regulations will have some transitional cost to the banks, the measure is clearly good value for money. The cost to the banks is hard to estimate, but the Treasury expects it to be in the tens or low hundreds of millions of pounds. This is relatively small in comparison to the cost of the broad ring-fencing package.
Furthermore, ring-fencing itself is the best strategy for structural reform of UK banks. The plan to ring-fence UK banks is based on the comprehensive work of the Independent Commission on Banking. The mechanisms by which ring-fencing will help financial stability are clear. The ring-fenced retail banks will be insulated from shocks elsewhere in the financial system. They will have higher capital requirements, which will improve their resilience. Ring-fencing will make banks’ structures simpler and will provide additional options to the regulator for a bank to be restructured, which will help resolution in the case of failure. By ensuring economic and operational independence, ring-fencing will achieve the objective of complete separation of retail banking from investment banking while still allowing the bank to benefit from its relationship with the wider banking group.
We firmly believe that this is the most cost-effective and proportionate option, and one that will ensure the long-term stability of the sector. The regulations play a key part in building a robust ring-fence and a stable banking sector, and I commend them to the Committee.
Lord Tunnicliffe (Lab)
My Lords, I sat through the creation of the Act to which these regulations relate. Broadly speaking, it had cross-party support. This is, as the Minister pointed out, a key element in completing the picture and therefore I welcome it. However, having spent several years serving on the Merits of Statutory Instruments Committee of your Lordships’ House, I can only join in its complaint—it is now called the House of Lords Secondary Legislation Scrutiny Committee—from its 26th report, published on 10 February. The committee said:
“In the EM, HMT gives limited information about the consultation process which was held from July to October 2014, referring only to a number of technical changes made in the light of consultation responses, as well as to two substantial changes in order to limit the burden on the banks and regulators. Though the draft Regulations were laid on 21 January, HMT had not published the summary of responses by 10 February. We are clear that Departments should publish their consultation summaries no later than the time of laying the instruments concerned before Parliament, as we set out in the report of our inquiry into Government consultation practice. In our view, Parliament should be asked to consider secondary legislation only when Government have provided adequate information, including about consultation, to support such consideration”.
I agree with the comments in that report. I believe that that general principle should be kept to and I am disappointed that the Treasury, in this particular case, has failed.
Also, what progress is being made in this whole ring-fencing process? As the Minister will recall, there was a degree of scepticism from our Benches and other places that the timescales that the banks had to create their ring-fence structures were extended. Can the Minister give the Committee some indication of what progress the banks are making in that extended timescale and what processes the Government and presumably the PRA, the FCA or whatever is the appropriate combination are putting in place to ensure that the banks are progressing towards their ring-fenced state and that we do not once again end up in a situation where too-big-to-fail institutions land us with a fait accompli and say, “We haven’t done it yet: we’ll do it later”. With those comments, I have no objection to the regulations in principle because, as the Minister said, they complete the picture to create ring-fenced entities.
Lord Newby
My Lords, I thank the noble Lord for his comments. On the consultation and the publication of the consultation response document, I am sorry that it was not published earlier. It has now been published. Compared with most SIs that we take through your Lordships’ House, this is actually—though important—quite short, and has a single purpose.
Lord Tunnicliffe
I also take the point that compared with the importance of the SI this is a modest point, but to a poor opposition spokesman like myself, without a wonderful array of staff behind me, if a document is not signalled in the EM I have great trouble actually finding it. While I am sure that the statement has been published and is right, surely it should be a matter of discipline that it should be published before it is laid, and every effort should be made to make sure that any documents referenced are referenced in the Explanatory Memorandum.
Lord Newby
I agree with the noble Lord. It is very difficult from the document itself to gain any sense of where pressure points or disagreements might be, and things should be published promptly, as the rules suggest.
The noble Lord asked how the ring-fence process is going. This is the final piece of secondary legislation required to implement ring-fencing. By passing it now, we have fulfilled our commitment to legislate for ring-fencing by the end of the Parliament. Further ring-fencing rules, which do not require legislation, are now being consulted on in two consultation papers and being put in place by the PRA. The PRA’s first ring-fencing consultation closed in January, and it is on course to publish its second consultation paper later this year. The big banks that have to implement ring-fencing are fully engaged with the PRA and, in January, gave their initial plans for ring-fencing to the PRA. So there is a bit of an iterative process going on between the drafting of rules and the banks’ own thoughts about how best they might do it. The other thing that has been happening is that Lloyds and RBS have been making changes to their business by winding down certain of their activities, both in terms of geographical spread and contracting some of their investment banking activities in anticipation of ring-fencing coming into effect. As far as we are aware and can see, both the regulators and the banks appear to be on track to have the ring-fencing successfully implemented in due time by 2018.
Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2015
(9 years, 2 months ago)
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Lord Newby
That the Grand Committee do consider the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2015.
Relevant document: 23rd Report from the Joint Committee on Statutory Instruments (Special attention drawn to the instrument)
Lord Newby (LD)
My Lords, this instrument creates a new regulated activity in the Financial Conduct Authority’s regulated activities order. The new activity concerns the giving of advice on the conversion or transfer of a class of pension benefits known as safeguarded benefits, which are defined in the Pension Schemes Bill 2014-15, but are best understood as benefits that the Government have taken a decision to safeguard, because they offer a guaranteed income in retirement that is assessed to be particularly valuable. They include benefits commonly referred to as defined benefit, but also include benefits that offer other guarantees or promises. This new activity relates to a safeguard being created by the Pension Schemes Bill 2014-15 in the context of the new pensions freedoms announced at Budget 2014. The advice safeguard requires scheme trustees and managers to check that members have received appropriate independent advice before transferring or converting safeguarded rights into rights which can be accessed flexibly, and before paying an uncrystallised funds pension lump sum in respect of safeguarded benefits. This safeguard will ensure that members have fully considered the implications of giving up rights that provide a valuable guaranteed income in retirement. It is important that this safeguard is operational from 6 April 2015, when the new pension freedoms come into force.
In July 2015, the Government’s response to the consultation on freedom and choice in pensions committed that advice required under the safeguard would be provided by an FCA-authorised adviser. This instrument helps deliver on that commitment. This instrument provides for advice on the conversion and transfer of safeguarded benefits into flexible benefits to be regulated by the FCA in accordance with the regulatory framework established by the Financial Services and Markets Act 2000.
Without this order, the FCA would regulate only advice on transfers of safeguarded rights to contract-based schemes. The new regulated activity created by the instrument allows the FCA to regulate advice on all transfers of safeguarded rights and interests to trust-based schemes that can be accessed flexibly. The Government want to ensure that the consumer interest is prudently accounted for in the context of the new pensions freedom, and therefore this instrument has been brought forward to ensure the proper operation and consistent regulation of advice provided under the safeguard.
The approach of defining the appropriate independent advice required under the advice safeguard by reference to a new FCA-regulated activity was indicated during the Lords Committee stage of the Pensions Schemes Bill on 12 January this year. Amendments to the Bill were the made at Lords Report stage on 27 January to provide that the appropriate independent advice required by the Bill should be provided by a person who,
“has permission under Part 4A of the Financial Services and Markets Act 2000 … to carry on a regulated activity specified in regulations made by the Secretary of State”.
The House was informed in early January that the Treasury would lay an instrument to create the relevant regulatory activity. This is the order we are now debating.
The Financial Conduct Authority will set out in a forthcoming consultation paper the precise standards of advice it will require. This paper, which will be published very shortly, taken together with the Pension Schemes Bill, its regulations and this order, will ensure that the advice safeguard is robust, effective and fully operational when the pension freedoms come into force in April 2015.
I commend the order to the Committee and beg to move.
Lord Tunnicliffe (Lab)
My Lords, I thank the Minister for presenting this order. He has clarified my only concern of understanding. I wish I had had the conversation with him four or five working hours ago. As I understand it, the order does all sorts of bits and bobs, but its essence is in Article 7.8 which fills a hole in the FCA applying these standards to the transfer to trust-based schemes. It took me a great deal of time to find out the difference between a contract-based scheme and a trust-based scheme. I shall not repeat my understanding lest I have it wrong, but that seems to be the essence of the order.
The “Regulatory Triage Assessment – final stage” document offers three alternatives. Option 2 is:
“Amend the FCA’s Regulated Activities Order via statutory instrument such that advice on occupational transfers is fully regulated”.
It does not give a very convincing reason why it should not do this. It is not that we are not supporting this Bill. The Opposition have not opposed the general essence of what the Chancellor is trying to do, but the size of what is happening and the importance of quality advice cannot be overstated.
I believe it has been estimated that perhaps some 500,000 defined benefit scheme holders may seek transfers almost straightaway. I think that a firm called Hargreaves Lansdown has done that. Given the very sudden discontinuity that will occur in April, is the Minister confident that the advice industry has the capacity to meet people’s needs? Does the pensions industry have the ability to meet the apparently thousands of transfer requests that it will face? Is the Minister happy that the mechanisms are available to protect the public from fraudulent operators? Does the Minister think that the Government have done enough to educate the public on the size and challenge of the changes they face? I happened to come across an article in the Observer this weekend which was rather less than reassuring. It said:
“Figures from insurance company Zurich show that, while the average length of retirement is 25 years, over half the population believe they will be retired for 20 years or less. Most people also predict they will not live beyond 85. But figures suggest half of people retiring now could live to 90 or beyond”.
That does not show an appropriate level of public understanding in facing this significant change. The noble Lord’s colleague, Steve Webb, the Minister in the other place, did not exactly use resoundingly assuring language in the article. He said:
“We wouldn’t be doing it if we thought it was a disaster, but you do take a risk when you trust people with their own money”.
I wish that his tone had been slightly more reassuring—I hope that the Government have a rather greater aspiration than the avoidance of disaster. I hope that in the short time left before April they will do their best to improve the level of education among the general public so that not too many people make decisions that they subsequently regret.
Lord Newby
The noble Lord is quite right to describe the order as filling a hole in the regulatory structure. That is exactly what it does. He talked about two separate changes that are taking place from 1 April. The relatively narrow one in terms of the number of people we think are likely to take advantage of it is the flexibility for people with a defined benefit scheme or other safeguarded scheme to move to a more flexible scheme. That is what the order covers. People in that category are required to take advice via a regulated adviser. We think that the majority of people with safeguarded pensions will find, on taking that advice, that it is in their best interests to retain them. However, it is for them, in discussion with the IFA community, to decide on a case-by-case basis.
I was asked whether there are enough properly qualified people to do the work. There are about 20,000 registered IFAs and around 7,000 of those are pension transfer specialists so it is quite a body of people. Given all the other changes that have taken place in the financial services sector, the concern of the IFAs in recent years has been that there was not enough work to go around—or would not be in future—on their old model of operating. I suspect that for this category of people, there will be adequate advice.
The article to which the noble Lord referred and many of his later comments were about the more general freedoms under which, from April, people will no longer have to take an annuity. There is a different and larger challenge there in terms of providing support for people in that category. As the noble Lord knows, we are setting up a completely new guidance service to advise people in that category. That service will have three strands—web-based, telephone and face-to-face—and is being developed by my colleagues in the Treasury. When I talked to them about this earlier, they assured me that they feel they are on track to have enough people and adequate systems in place to deal with the very large number of requests they will get.
One other thing that my colleague, Steve Webb, said about the change on 1 April was that he suggested people spend the day in bed rather than worry about changing their pensions literally on day one. It is important that people take time to get not just the guidance but also to think about how they want to dispose of the funding they have in their pension pot.
I completely share the concern of the noble Lord and several commentators that many people do not understand pensions at all. They have a pension but that is about all they know about it. One of the great potential benefits of this change and the fact that everybody will get free guidance is that it will help people to understand how a pension works. I think there is a view in a lot of people’s minds that a pot of money called a pension is somehow different in some mysterious way from any other pot of money. The truth is that it is a pot of money available for them to dispose of, now pretty flexibly. People will need to confront their own mortality, possibly in a way that they did not feel they needed to in the past. That is undoubtedly a challenge to people but one that they should face up to, and not just because of how they deal with their pensions. It also affects a whole raft of ways in which they think about their later years. For many people on the normal retirement age, that period will be 30 years or more—a third of their life.
It is a challenge. We are putting in place robust, we hope, measures through the guidance systems in terms of these safeguarded pensions—the subject of this order. That advice will ensure that people get the level of support they need to take the correct decisions and enable them to get the very best out of their pension savings. Of course, at this stage we do not know whether our systems will be as robust as we hope they will be. We do not know quite how people will respond to this. However, I think we have behaved responsibly in not only opening up the freedoms but also putting in place a system to ensure that people can exercise those freedoms in a responsible manner for their own benefit.
House of Lords
Parliament: Conventions
(9 years, 2 months ago)
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Lord Rooker
To ask Her Majesty’s Government what assessment they have made of the effectiveness of the conventions between the two Houses of Parliament as they have affected government business during the current Parliament.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, while there has been no formal assessment of the effectiveness of the conventions between the two Houses as they have affected this Government’s business this Parliament, we believe that they have proved adaptable and continue to stand the test of time.
Lord Rooker (Lab)
My Lords, I agree that the conventions work well while this House is unelected. However, may I ask the noble Baroness, in her role as Leader of the House—as opposed to a government Minister—to indicate to the main party leaders that, when they come to write their manifesto paragraphs on Lords reform, they should include issues related to the functions and powers of this House, and its relationship to the other House, rather than just a banal slogan on its composition? If they do not, it is likely that such legislation will get short shrift in your Lordships’ House.
Baroness Stowell of Beeston
I think I will leave it to the other party leaders in this House to decide whether they would like to write to Messrs Miliband and Clegg, but I agree with the noble Lord that the primacy of the House of Commons should never be in doubt. I agree with him that form should always follow function and I am clear that the purpose of this House is to give the public confidence in the laws that Parliament makes. It is an essential part of what we do and should inform what we do and how we do it, both now and in the future, however we may be composed.
Lord Tyler (LD)
My Lords, I—among others, obviously—represented your Lordships’ House on the Joint Committee that looked at the conventions of Parliament. However, that was nine years ago. I suggest to my noble friend that, since that time, the era of single-party government may well have disappeared for ever.
Lord Tyler
Therefore, these conventions, as set out in our report, are long past their sell-by date. Have any discussions taken place, between the parties in this House and with the other place, on setting up a similar committee after the general election to look at the new situation?
Baroness Stowell of Beeston
I disagree with my noble friend because I think we have proved in the course of this Parliament that these conventions have, as I say, stood the test of time. Therefore, I believe that it is unnecessary to constitute another committee and that the conventions will be adaptable throughout the next Parliament.
Lord Campbell-Savours (Lab)
My Lords, my noble friend Lord Rooker asked a specific question about whether there would be references to these matters in the manifestos of the political parties and the Government. What will happen in the case of the Conservative manifesto?
Baroness Stowell of Beeston
I am pleased that the noble Lord is so interested in my party’s manifesto. That suggests he believes it is the only one that really matters. He will not be surprised that I am not going to give him any insight into the content of the manifesto before it is published.
Lord Forsyth of Drumlean (Con)
My Lords, will my noble friend indicate what the conventions are in respect of the Government’s involvement in private Members’ legislation? In particular, could she explain why the Government have backed a Bill that guarantees 0.7% of GDP for overseas aid, while blocking a Bill that guarantees 2% of our GDP for NATO?
Baroness Stowell of Beeston
The noble Lord knows that the 0.7% Bill, which was debated in this House on Friday, is, as he said, a Private Member’s Bill, but it represents a policy that was in the Conservative Party’s manifesto at the most recent election.
Lord Howarth of Newport (Lab)
My Lords, if form should follow function, as the noble Baroness said, and if the function of your Lordships’ House is to act as a revising and advisory Chamber, how can it have been right for the Government to alter the form of the House, as they have, by packing the Benches behind her to create a large in-built government political majority?
Baroness Stowell of Beeston
I take exception to the language that the noble Lord has used. As he knows, it is important that we continue to refresh this House with new Members. Of the peerages created during this Parliament, 47 have been on the Labour Benches.
Lord Laming (CB)
Could the noble Baroness the Leader of the House, when she has discussions with the leaders of the other parties, use the opportunity to highlight the work that this House does in revising legislation? There may be yet another example today of how many government amendments there are to legislation. This House serves the country extremely well in its function of revising legislation, and I hope that the Leader will take every opportunity to remind people down the other end that we do it rather better.
Baroness Stowell of Beeston
The noble Lord is absolutely right. The fact that we are an unelected Chamber right now does not in any way diminish the important work that we exist to do. In revising and scrutinising legislation, we give the public confidence in the laws that Parliament makes.
Lord Cormack (Con)
My Lords, I thank my noble friend for what she has said, but if we are to have continuing amicable relations with another place, for which we all hope, it is not very helpful if another place peremptorily kills off a Bill that has been fairly exhaustively debated in this place, as it did last Friday. It might well be that some us think we should flex our muscles on a Bill that came from the other place.
Baroness Stowell of Beeston
I think my noble friend is referring to the Private Member’s Bill, which originated in this House, of the noble Baroness, Lady Hayman—
Baroness Stowell of Beeston
I thought the noble Lord was referring to the Bill of the noble Baroness, Lady Hayman, which is still very much in play. It is quite right that the Saatchi Bill has gone through this House carefully, but the other House has the prerogative to decide how to deal with it, as it has done.
Baroness Kingsmill (Lab)
My Lords, could the Minister let me know what the Government propose to do about the appalling, sexist and outrageous behaviour of MPs in the other place? This is an enormous problem. It discourages women, and it is largely the men who do it.
Baroness Stowell of Beeston
I am the Leader of this House, and therefore I do not speak for the other House. I am not sure that I would necessarily agree with the comments of the noble Baroness about the other House, but I am pleased that in this House—in my experience—there is no demonstration of sexism.
Lord Tebbit (Con)
My Lords, if any Members of this House think that they want to rebuff the other place in any way, there is one very effective way in which it might be done. We might send back to them some of the Bills that they failed to discuss, because they keep part-time hours, in exactly the same state as they sent them to us.
Baroness Stowell of Beeston
My noble friend is always full of creative ideas.
Baroness Royall of Blaisdon (Lab)
My Lords, I agree with my noble friend who suggested that the Government are packing this House; I think they are packing the government Benches. I wholeheartedly agree with my noble friend about the purpose and function of this place. I hope that the noble Baroness will consider suggesting to the Prime Minister that a constitutional convention should be called. One of the things that it should take into consideration is the purpose and function of this place.
Baroness Stowell of Beeston
As the noble Baroness knows from the exchanges that we have had previously, that is not something that the Government are proposing at this time. As far as the Conservative Party within this Government is concerned, there are other things that have a higher priority and do not need a constitutional convention. We want to see those implemented first.
Defence: Strategic Defence and Security Review
(9 years, 2 months ago)
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Lord Rosser
To ask Her Majesty’s Government what, if any, preparatory work has been, or is being, undertaken in advance of the 2015 Strategic Defence and Security Review; and whether any such work will be made available, subject to not compromising national security, prior to the general election.
Lord Wallace of Saltaire (LD)
My Lords, preparatory analytical work is under way to refresh the risk-based assessment approach taken in 2010. As the review will formally begin after the next election, no decision on its final scope or approach has yet been made. The Government have no plans to make any preliminary work available prior to the general election.
Lord Rosser (Lab)
I thank the Minister for that response. In the light of that response, is it this Government’s intention that there should be a real opportunity, including sufficient time, for an open discussion about our defence and security strategy prior to the 2015 SDSR being finalised? The previous Government produced a Green Paper on defence and security before the last election. From what the Minister has just said, there appears to be no comparable document forthcoming from this Government in respect of the 2015 SDSR. Why is that, particularly when future defence and security strategy is one area where Governments normally seek to achieve some degree of consensus?
Lord Wallace of Saltaire
My Lords, I agree that debate and search for consensus are important, particularly as we now face a remarkably diverse selection of security threats. The 2009 Green Paper was indeed about defence and not about security in the broader sense. I remind noble Lords that, in the national security strategy 2010, only two of the eight tier-one and tier-two threats identified were directly military; the others included pandemics, climate change, cyberattacks, organised crime on a transnational basis, terrorism and surges of migration.
Lord Palmer of Childs Hill (LD)
My Lords, given that the French Government invited the former UK National Security Adviser—now the British ambassador in Paris—to take part in their recent defence review, could my noble friend the Minister say whether the Government intend to invite an appropriate official from France to participate in next year’s strategic defence and security review?
Lord Wallace of Saltaire
My Lords, the House of Commons Defence Committee raised that question in its report last year. The Government’s response said that,
“we have already had preliminary discussions in particular with the US and France following our engagement in the French Livre Blanc and US Quadrennial Defense Review processes”.
This question is out there, but to be decided by whichever Government emerges after the next election.
Lord Touhig (Lab)
My Lords, each night some 500 veterans sleep on the streets of London and towns and cities across Britain. I mean in no way to diminish the importance of the strategic defence review, but can the Minister indicate when the Government will honour the spirit of the Armed Forces covenant and face up to this crisis? Our defence depends on the commitment of the men and women of our Armed Forces and we owe them a duty of care when they have left the services.
Lord Wallace of Saltaire
My Lords, I of course acknowledge the importance of the noble Lord’s point, but I merely stress that I am answering for the Cabinet Office and the Government as a whole. We are talking about a security and defence review that involves the majority of departments in Whitehall feeding into an overall view of threats to our domestic and international security.
Lord Soley (Lab)
The world is a much more dangerous place than it was in 2009, when that report was well received. Now there is a danger of conflict between European Union states and Russia, and there is a profoundly dangerous conflict in the Middle East as well. Surely there is a case for a debate, as my noble friend on the Front Bench suggested. We really cannot carry on as if there were not a problem emerging in the world that makes the world a much more dangerous place than it was five or six years ago.
Lord Wallace of Saltaire
My Lords, the 2010 SDSR was undertaken at speed, in the context of a very wide gap between defence spending commitments and the Treasury’s ability to fund them. We may hope that after the next election we shall have a little more time—perhaps a matter of six to nine months—before the conclusion of the SDSR. I remind noble Lords that in 1997-98 Labour’s defence review took well over a year. That will allow more time for the sort of debate about our role in the world, the threats we face and how much we devote to meeting these different threats than we had in 2010.
Lord West of Spithead (Lab)
My Lords, the Minister is deluding himself there, because the driver will be the CSR, which will have to gallop down the track very fast. I was disappointed with the Minister’s response to my noble friend on the Front Bench, in terms of the ability to go out and talk to various other people. Does he not believe that we need something like the National Security Forum, and an ability to talk to academe and experts on military affairs, so as to get an input from all parties, moving very fast? The CSR will hit us and we will have to make decisions about spending that will have a huge impact on the military.
Lord Wallace of Saltaire
My Lords, the process of consultation and debate with outside bodies is well under way. The noble Lord makes his points about involving those parties, and I myself have been to see some of them. I was at the Royal United Services Institute and at Chatham House discussing precisely those broad issues behind the SDSR, so the process of consultation with outside experts is under way. I wish we had seen more, for example, about Labour’s approach to defence and security, which might have fed into a more public debate before the election.
Lord Brooke of Sutton Mandeville (Con)
My Lords, as the SDSR of 1998 sought to reduce the Reserve Forces, and the coalition’s recent SDSR moved in the opposite direction, if my noble friend is still serving in a coalition Government in the next Parliament, in which direction does he think it is likely to go?
Lord Wallace of Saltaire
My Lords, as the noble Lord has remarked, we are in a much more acute security situation, not only in eastern Europe but in north Africa and across the Middle East, than we were five years ago. One of the questions that whichever Government emerges after the next election will have to consider is what spending priorities are, and how far we need to raise the issue of security within that. I again stress that an SDSR is not just about military spending: there are a wide range of other security threats—some very long term—which that includes.
Tehran: British Embassy
(9 years, 2 months ago)
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Lord Hannay of Chiswick
To ask Her Majesty’s Government when they intend that the chargé d’affaires to Iran should be operating from a reopened British embassy in Tehran.
Lord Wallace of Saltaire (LD)
My Lords, the Government remain committed to reopening the British embassy in Tehran once we have resolved the outstanding steps required to bring the embassy back to a functional level and conclude the arrangements for re-establishing a visa service in Tehran. We are in ongoing discussion with the Iranian Government to identify solutions for both sides.
Lord Hannay of Chiswick (CB)
My Lords, I thank the Minister for that somewhat opaque reply. Do the Government agree that the case for establishing, on a continuing basis, a voice and a presence in Tehran is more compelling than it has ever been in the light of the ongoing negotiations on nuclear matters, whichever way they come out? Either they will be successful, in which case they will probably lead to a loosening of sanctions and considerable commercial opportunities for British businesses, with which they will need help, or Tehran will become the centre of one of the most dangerous world situations. We surely need to be there, raising our voice and reporting about what is going on.
Lord Wallace of Saltaire
My Lords, I entirely agree that Iran is an important country and an important player in the broader politics of the Middle East. However, the British embassy in Tehran was trashed extensively in 2011, much of the equipment was destroyed and a number of local employees were mistreated. There are a number of issues to get around before we go back there. Meanwhile, chargés d’affaires from both sides are spending extended periods visiting each other’s country, so we are already engaged in a dialogue, as far as we can.
Baroness Manzoor (LD)
My Lords, the UK Home Secretary is quite right to place an emphasis on visa overstayers being returned to their respective countries and, of course, embassies play a vital role in that. Can my noble friend say what the UK Government are doing to ensure that the Iranian embassy here can be fully opened so that it can help and support the Iranian visa overstayers to return to Iran?
Lord Wallace of Saltaire
My Lords, the problems of overstayers are not on the British side. It is much more a matter of the Iranian Government’s willingness to accept people back, in particular if they are being expelled from Britain and have overstayed their formal status here. There is a trade-off between opening a visa service in Tehran and the issue of overstayers in Britain. That is one of the issues that, unfortunately, has not yet been resolved.
Lord Kinnock (Lab)
My Lords, in the improved relationship that would be signified by the reopening of the embassy in Tehran, will the Government give emphasis to efforts to re-establish the British Council operations in Iran, which were flourishing and of massive use both to the relationships between our countries and to Iranians? That could signify a really important step forward in the building of constructive relationships.
Lord Wallace of Saltaire
As the noble Lord probably knows, discussions are already under way about the possibility of reopening the British Council operation in Tehran. I declare an interest in that my wife is an officer of the British Academy and the British Institute of Persian Studies also had to close. We have to recognise that there are some delicate issues at stake. There is the protection of British nationals when they are there and there is the problem with the human rights situation in Iran which we should not ignore.
Baroness Symons of Vernham Dean (Lab)
My Lords, as the noble Lord has raised the question of human rights in Iran, will he undertake that the Government, if they do reopen the embassy, will start a discussion again on human rights in Iran and, very particularly, the hanging of underage young people?
Lord Wallace of Saltaire
My Lords, I am happy, on behalf of the Government, to give that complete assurance. The treatment of journalists, the number of executions and the treatment of women are all very substantial issues on which we will wish to maintain an active dialogue with the Iranian authorities.
Baroness Afshar (CB)
My Lords, are the Government aware that the best way of maintaining that dialogue and controlling some of the abuses in Iran is by having a presence and by having students from Iran coming here and students from here going there? It is only through interactive relations that it will be possible to intervene from the inside in the terrible politics of Iran. Standing on the outside will not help.
Lord Wallace of Saltaire
My Lords, the Government are very well aware of that and we are anxious to reopen the embassy. However, we need some reassurances on the return of equipment to re-equip the embassy, the safety of employees and a number of other issues before we can finish the negotiations.
Baroness Morgan of Ely (Lab)
My Lords, Labour welcomes the appointment of the chargé d’affaires for Iran as a step towards the re-establishment of full diplomatic relations with the country. Can the Minister elaborate on what assurances the Iranian Government have given to the UK Government for the protection of British diplomatic staff and their ability to carry out work without hindrance if and when the embassy is opened?
Lord Wallace of Saltaire
My Lords, the noble Baroness will know that the Iranian Government are not simply a monolith. We negotiate on nuclear matters as well as on reopening the embassy with the Iranian Ministry of Foreign Affairs. There are other elements in the current Iranian regime which are not as easy to negotiate with or to gain assurances from as the Ministry of Foreign Affairs.
The Earl of Listowel (CB)
Following the question of the noble Baroness, Lady Symons, will the Minister also talk to the Iranian Government about the treatment of children?
Lord Wallace of Saltaire
We will certainly talk about the treatment of children and also about the treatment of religious minorities. We are all aware of the treatment of the Bahai, in particular, in Iran who have suffered very grievously because the Iranian Government recognise only Christianity, Judaism and Zoroastrianism as religions alongside Islam. Other sects are considered heretical and some Christians are also persecuted within Iran.
Astute-class Submarines
(9 years, 2 months ago)
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Lord West of Spithead
To ask Her Majesty’s Government whether the time to build an Astute-class submarine has reduced as the shipyard has gained experience of building that type of vessel.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, the build time and commissioning for each Astute-class submarine continues to reduce as lessons are learnt. For the first boat, HMS “Astute”, this took 170 months from the start of manufacture until operational handover to the Royal Navy. The second boat, HMS “Ambush”, achieved this in 149 months.
Lord West of Spithead (Lab)
My Lords, I thank the Minister for that Answer. As he will know, the first build of any class always takes longer. Perhaps he could write to me with the answer to this question: how long has HMS “Artful”, which is the third of the SSNs, taken from laying down to sea trials, compared with HMS “Agamemnon”, which is the one that is being built at the moment? All the information I have is that these lengths of time are suddenly starting to stretch out, which means that more money will be spent. Is the Minister aware that the US is now very concerned that the stretching out of timescales may impact on any future submarines, and worried about the impact on the common missile compartment that the Americans are funding to a large extent, but that we will be using?
Lord Astor of Hever
My Lords, I will write to the noble Lord on the point that he asks about. The Astute submarine programme required the UK’s nuclear submarine design build capability to be re-established following a 10-year gap since the delivery of the last Vanguard-class submarine. The consequences are still being felt across the whole of the submarine enterprise. Further improvements are still needed and we are working very closely with our key suppliers to ensure that they make those improvements.
Baroness Wilcox (Con)
My Lords, will the Astute class have female submariners this time?
Lord Astor of Hever
My Lords, women officers and ratings will be able to serve on Astute-class submarines from about next year, but this will not be the first class to do so. Seven women officers have completed the submarine officer training course and are now serving in the submarine service on board the Vanguard-class submarines, and in headquarters appointments. Women ratings will commence training this year.
Lord Davies of Stamford (Lab)
My noble friend and the Minister have already referred to the positive experience effects that one always gets in building any class of vessel, or in any engineering project, but does he recall that in addition to those effects that one can expect, there was a particular problem at the beginning of the Astute-class programme because of the break in continuity and expertise from the previous submarine-building programmes of the Trafalgar class? Does he therefore accept that it is vital that we do not run into those problems again, and those excess costs and wastes of money, and that this time there is absolutely no gap between the end of the building of the Astute programme and the beginning of the successor class programme?
Lord Astor of Hever
My Lords, the noble Lord makes a very good point. Designing and building submarines is one of the largest programmes, and most complex activities, that the MoD and UK industry undertake, and the noble Lord is well aware of that. Addressing the technical issues associated with nuclear submarine capability is exceptionally challenging, and is reflected in the time it takes to design and build a submarine.
Lord Palmer of Childs Hill (LD)
My Lords, in view of the vulnerable international situation, have the Government been in discussions with BAE Systems about how to speed up the production of these necessary submarines with Tomahawk missiles if the international situation gets worse, or are we stuck on a timetable that has no connection with the international scene?
Lord Astor of Hever
My Lords, my noble friend makes a very good point. We continue to look for ways to optimise manufacturing schedules. For example, we are introducing new technology to support modular build, an innovative means of testing and commissioning different systems.
Lord Elton (Con)
My Lords, the stretching out of delivery times affects the cash flow of subcontractors, and those difficulties can be hideously compounded by delays in the settlement of their bills. Is there oversight of the rate of settlement of bills and, if so, is it satisfactory?
Lord Astor of Hever
My Lords, I cannot answer my noble friend’s question from the Dispatch Box, but I will take it back to my department and undertake to write to him.
Lord Lee of Trafford (LD)
My Lords, can my noble friend give an indication of the extent of Soviet submarine activity off our shores and our ability to maintain surveillance?
Lord Astor of Hever
My Lords, I am aware of this but it is probably difficult for me to say too much about the subject from the Dispatch Box.
Lord West of Spithead
My Lords, I was not going to ask about that subject but, as we know, at one stage we had 16 attack submarines but now we have six, and that has an impact on antisubmarine warfare by submarines. My question really goes back the build rate—the drumbeat—of these submarines. The drumbeat was extended unnaturally because we did not wish to have the submarines coming off the production line quickly. That means that each boat costs more than it should have done. Is that not correct, or does the Minister believe that we had to build them over that timescale?
Lord Astor of Hever
My Lords, the noble Lord is right but we are working with industry to try to speed up the manufacture of these submarines, and I think we are being very successful in that initiative.
Lord Brooke of Sutton Mandeville (Con)
My Lords, could my noble friend give a word of description of how the naming of warships occurs in the Royal Navy? Contingent on his answer, would HMS “Adaptable” be a possibility?
Lord Astor of Hever
My Lords, I wish I could answer that question. For the benefit of the House, I have mentioned the first three submarines: HMS “Astute”, HMS “Ambush” and HMS “Artful”. The fourth is called “Audacious”, the fifth is “Anson” and the sixth is “Agamemnon”. For the seventh, we are still waiting to decide on the name.
Health Service Commissioner for England (Complaint Handling) Bill
Warm Home Discount (Miscellaneous Amendments) Regulations 2015
Baroness Verma
That the draft regulations laid before the House on 12 January be approved.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 25 February.
Social Security Benefits Up-rating Order 2015
Lord Bourne of Aberystwyth
That the draft orders and regulations laid before the House on 14 and 19 January be approved.
Relevant documents: 19th and 20th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 25 February.
Employment Allowance (Care and Support Workers) Regulations 2015
(9 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Newby
That the draft orders and regulations laid before the House on 13 and 19 January be approved.
Relevant documents: 20th and 21st Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 25 February.
Shared Parental Leave and Leave Curtailment (Amendment) Regulations 2015
Lord Popat
That the draft regulations laid before the House on 12 and 16 January be approved.
Relevant documents: 19th and 21st Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 26 February.
Industrial Training Levy (Construction Industry Training Board) Order 2015
Lord Ashton of Hyde
That the draft orders laid before the House on 21 January be approved.
Relevant document: 21st Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 26 February.
Recall of MPs Bill
(9 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Campbell-Savours
Lord Campbell-Savours (Lab)
My Lords, it would be an abuse of procedural arrangements at Third Reading for me to go into great detail on issues that we have raised during previous stages of the Bill. At Second Reading, I set out the principles driving the amendments that I tabled; in Committee, my noble friend Lady Taylor of Bolton set out her views and further embroidered my own; and on Report, we dealt in great detail with the 20 days and 10 days amendment. It suffices to put to the House the bare essentials of the argument.
The Government’s original Bill provided for a suspension of at least 20 days before the second trigger provoked a petition for a possible by-election. The Labour Opposition then moved an amendment—which I have repeatedly opposed—reducing the period of suspension from 20 days to 10. Supporters of my amendment have argued that the Labour amendment in the Commons would lead to a cluster of penalties of under 10 days, even where penalties of more than 10 days and fewer than 20 days are more appropriate. We have argued that there will be pressure on members of the committee from all sides of the House of Commons, and perhaps from people on the payroll, to ensure that decisions are taken in that committee to avoid petitions and by-elections. The committee will, in our view, be transformed from a quasi-judicial one into a political one, where even a lay membership will inevitably be compromised. I set out my reasons for thinking that on Report.
The 10-day amendment, when considered in the Commons, was supported by only two members of the Standards and Privileges Committee and was opposed by another four—if I recall correctly—while a further three abstained. It was opposed by all those on the Conservative Benches in the House of Commons. My amendments, at previous stages, would have restored the 20-day provision that was in the original government Bill. I fear that my case has not been helped by the Rifkind-Straw affair over recent weeks.
Today’s amendment is a compromise—better than 10 but not as good as 20. However, there is ever increasing anger over the fact that this amendment was carried in the House of Commons by Members of Parliament themselves, the great majority of whom did not know what they were doing. The few who have defended the 10-day provision have deployed a new argument, which I will address very briefly. They say that my amendments would weaken the Bill by reducing the number of petitions and by-elections. The idea is rubbish. Indeed, my amendments strengthen the Bill, and I will explain how. There will be cases that require more than a 10-day suspension but do not require a possible by-election. My amendment enables the higher penalties of longer periods of suspension to be imposed on Members of the other place who sin.
Finally, I need to repeat that I have supported recall for nearly 30 years, following my 15 years’ experience as a member of the Standards and Privileges Committee in the Commons and its predecessor, the Select Committee on Members’ Interests. I beg to move.
Lord Forsyth of Drumlean (Con)
My Lords, very briefly, I support the noble Lord in his amendment, although I am not sure that I entirely support him in his argument. He suggests that the very unfortunate circumstances of Sir Malcolm Rifkind and Jack Straw have weakened his argument but, on the contrary, they have strengthened it, at least in so far as my own opposition to the Bill is concerned. We have argued throughout these proceedings against the basis on which the Government have introduced the Bill. Where people have done something wrong—or, in the case of these two Members, appear to have done something wrong; we have not yet heard the facts or the circumstances of each case—the immediate reaction of the parties will be to withdraw the Whip, which is what happened to both Mr Straw and Mr Rifkind, making it impossible for them to face their electors as Conservative or Labour candidates. I do not for the life of me see how this Bill will operate in circumstances where the leaderships of political parties rush to judgment before they have the facts and remove the Whip.
The noble Lord’s amendment is sensible in that it extends the range of penalties so that the penalty can fit the misdemeanour. By making the range of penalties so slight, it puts the committee in a difficult political position, which it most certainly should not be in. I have no hesitation in supporting the noble Lord’s amendment, although I do not share his views on the wisdom of recall. Members of Parliament should be able to face their electors. However, in the case of Malcolm Rifkind, we are on the eve of a general election, and if the Government really believed that it was up to the voters of Kensington to decide, he would have been able to go forward as a candidate and put his case to the voters. In practical terms, that is not what has happened, and I believe that that would be the case in every circumstance where this legislation may be required, which is why I do not support the legislation but do support the noble Lord’s amendment.
Lord Hughes of Woodside (Lab)
My Lords, I think we are all agreed that this is not the time to discuss recent matters in the press. It is certainly not the time for your Lordships’ House to be apparently trying to make things easier for recalcitrant or erring MPs. I stress, as we all have, that none of us has any time for MPs who transgress the rules or MPs’ discipline in any form.
When we were arguing the case for 15 days rather than 10, it was not a matter of protecting MPs; it was a matter of justice. Things have to be done properly, which is what this House is about. In passing, I will say that I welcome the amendments that we will be discussing later when they are moved by the noble Lord, Lord Wallace, if only because they destroy the defence he offered that we cannot change what has been done in the House of Commons. The refrain we have heard throughout the amendments is that, whatever the case, the other place has decided and we must not seek to overturn it.
I know a lost cause when I see one and I appreciate that the chances are that the Minister will not accept this amendment. However, may I suggest to him a novel procedure? Would he perhaps accept the amendment on the understanding that the reason for doing so would simply be to allow the other place to look at the matter again? This is the last opportunity for that to be done; there is no other way for this to be discussed further unless the Minister accepts this amendment. If he accepts my suggestion of accepting the amendment on the understanding that it is purely and simply to allow further discussion in the other place, I give him my personal guarantee—and, I believe, the guarantee of everyone on this side of the House—that when it comes back there will be no opposition whatever if the Government decide to press on with 10 days.
Baroness Taylor of Bolton (Lab)
My Lords, I would like to add just a few words because this is an extremely important issue. I am very grateful that my noble friend has raised it again. The remarks made by the noble Lord, Lord Forsyth, show how complex the issue is, and yet it is treated as very simple. His comments about the withdrawal of the Whip and the inability of someone subsequently to stand in a by-election have not been discussed and fully thought through. I think that that shows how hastily this legislation has been pushed through despite the fact that people have been talking about it for many years.
However, I support the suggestion made by my noble friend Lord Hughes. In all the times that we have discussed this matter in the House, the Minister has never said why the Government have changed their mind and why they are sticking now to 10 days when they thought that 20 days was appropriate. Like my noble friend Lord Campbell-Savours, I have served on the Privileges Committee in another place. I can vouch, as he does, for the fact that the discussions on that committee—in my day it was under the chairmanship of the late Lord Newton—were never political. Discussions never led to a schism in the committee along political lines. I think that there is a very real danger that that is what will happen if we do not seek some changes even at this late stage.
Lord Howarth of Newport (Lab)
My Lords, I thank my noble friend Lord Campbell-Savours for persisting with this theme, and for bringing this issue back once again at Third Reading however forlorn the prospect of acceptance of his compromise amendment may seem to be—and it is. As other noble Lords have said, the issue that it deals with is one of very great importance for the House of Commons. I believe, in any case, that by introducing these provisions for the recall process, the House of Commons has demonstrated a catastrophic lack of self-confidence. Specifically, the means of policing its own affairs that the House of Commons has traditionally used is the operation of the Standards Committee. Through the provisions in the Bill, and particularly through the amendment brought in by the Labour Party to reduce the period of suspension from 20 days to 10 days, which would trigger the recall process, the effect will be greatly to reduce the practical capacity of the Standards Committee to perform its proper function.
If the House of Commons is to rehabilitate itself in the public esteem, it must be seen to be able to take responsibility, and to provide effective means to take responsibility, for matters of internal discipline and for disciplining Members of Parliament who transgress or commit serious wrongdoing. In so reducing the realistic scope for disciplinary sanctions that the Standards Committee can recommend to the full House, the House of Commons has portrayed a lack of self-confidence and done itself a deep disservice.
So I add to the plea from my noble friend Lord Hughes of Woodside that the Front Bench will accept the amendment simply to allow Members of the House of Commons to think again about this. Very few of them participated. Very few of them voted in the debates. Many of them did not realise the import of what was approved by the House. They ought to have that opportunity to think again, in their interests and in the interests of parliamentary democracy. I think that we in your Lordships’ House are fully entitled to offer our advice to them on this matter. As another House of Parliament, and as citizens, we have an interest in the integrity, good name and good functioning of the House of Commons.
Lord Tyler (LD)
My Lords, I am very sympathetic indeed to Amendments 1 and 2 in the name of the noble Lord, Lord Campbell-Savours, for the very specific reason that I have followed the progress of the Bill throughout its stages in both Houses and I can confirm to your Lordships that a whole number of implications which have arisen in this House were not addressed there—for one very simple reason: all the votes were on a free vote. I am very enthusiastic about free voting in both Houses, but of course when there is a free vote there is not the same guidance from the parties about the full implications of the measures in front of the House—whether it is this House or that House.
I can confirm absolutely the point made by the noble Lords, Lord Hughes of Woodside and Lord Howarth, that this issue of what could easily happen—in the terms that have been so forensically analysed by the noble Lord, Lord Campbell-Savours—in the Standards Committee, simply were not addressed in the debate in the other place. I suggest to my noble friend Lord Forsyth that if the recall mechanism was in place, for example, I do not believe that party leaders would feel that it was appropriate to appear to prejudge the outcome of an inquiry by removing the party Whip. I think that they would be inclined to leave it to the commissioner, the committee and then to the recall process—and eventually, of course, to the electorate, as is the intention behind the Bill.
On those grounds, I hope that my noble friends on the Front Bench will be prepared to think very carefully about how we must give the House of Commons another opportunity to think through the implications of this part of the Bill.
Lord Cormack (Con)
My Lords, I have felt all along that this is a very ill conceived, ill thought-out Bill, and one that does no credit to Parliament in general or to the House of Commons in particular. I have briefly made similar points to those made by the noble Lord, Lord Howarth of Newport, in previous debates.
I feel that this is such a bad Bill that it is, frankly, unimprovable and unamendable, but I salute the noble Lord, Lord Campbell-Savours. He is sometimes a controversial figure but nobody can deny that he is a parliamentarian of real status who is deeply concerned about the reputation of Parliament. He is trying very hard with this amendment and, in so far as anything could improve the Bill, it is probably this, if it were passed, because it would give that chance for another place to think again.
What concerns me more than anything else—I alluded to this a few seconds ago—is the status and standing of Parliament. This great and free country of ours depends above all on two things: the rule of law and the sovereignty of Parliament. In eroding the sovereignty of Parliament, we do no one any service. This Bill is in fact the erosion of the sovereignty of Parliament Bill. This House is clearly not going to stand in the way of the elected House, but it does behove us constantly to remind the Members of that elected House that by their lack of confidence in themselves they are doing no one any service.
Baroness Hayter of Kentish Town (Lab)
My Lords, your Lordships will know that we do not support the amendments that stand on the Marshalled List today, despite the arguments that have been made by people who, as I think they all said, fundamentally do not like the Bill.
Baroness Hayter of Kentish Town
Some of them have admitted that they do not like the Bill—we have just heard that it is fundamentally wrong. There is another view, of course: that the status of Parliament depends not simply on the good behaviour of its Members but on the ability of constituents, where there has been serious misdemeanour, to hold their Members to account. That is the thrust and drive of the Bill, and it is for that reason that my party has supported the idea that, where someone has been found—differently from the case in front of us now—guilty and sentenced to imprisonment, or it is found by their peers in the other place that they should be suspended for a time from the House, they should not automatically be able to continue in the job of representing their constituents.
Lord Hughes of Woodside
I understand my noble friend’s position as leading for the Opposition, but I know of nowhere in any election manifesto or decision where we stand or fall by a matter of 10 days, 15 days or 20 days. The principle is not being attacked in any sense by this amendment. I beg of her, as I have asked the Minister, at least to think about the possibility—without committing the party at the other end to change its mind—of looking at the matter afresh, just to give it a chance.
Baroness Hayter of Kentish Town
I am coming to the matter of days in a moment. It is right to reiterate what many people outside Parliament feel about when someone is judged to have done something that even their peers in the other place consider inappropriate behaviour. In most other walks of life, one would not automatically be able to continue in one’s job. Therefore, there should be a possibility for recall at that point.
The second point is whether the particular number of days, which is what we are discussing in this amendment, is the right one. A different proposal was made by the coalition Government at the beginning. It was debated in the other place, although it may not have been debated at great length, and it has certainly been debated here, in Committee and on Report. A judgment has always to be made.
Lord Campbell-Savours
I think that I heard my noble friend say that it was debated in the other place. I defy her to find anywhere in the Hansard report any more than a couple of sentences on the issue of 10 and 20 days.
Baroness Hayter of Kentish Town
My point is that it was debated there and the case was made for why it should change. The point I am trying to make is that the proposal for 20 days, 10 days, 15 days, five days or 30 days is a matter of judgment. There is no right or wrong answer. It is a judgment on what is the appropriate connection between a decision in the other place and its Standards Committee and the point at which that should trigger a recall petition. That is a difficult judgment and one that I say needs to be made by the House of Commons, which is where this decision was taken.
Lord Forsyth of Drumlean
Is that not the whole point—that the House of Commons needs to be able to take a decision? A story in the press over the weekend suggested that people should be expelled from the House of Commons for three days for boorish behaviour. Is it three days or 10 days? What about not declaring an interest? Should that be 10 days or should it be between three and 10 days? By having a broader spectrum, it is possible to provide a sanction that will be seen to be appropriate for the offence. Does she see that it is not about whether it is 10 days or 15 days but the spectrum that is open to the House to show its displeasure when Members behave badly?
Baroness Hayter of Kentish Town
I do not disagree that it is for the House of Commons to do that, but it has have taken a decision. My noble friends say that the Members did not know what they were doing—I would not make that comment—but they took a decision by 203 votes to 124 that this was the figure that it should be.
Baroness Taylor of Bolton
I understand the difficulty that my noble friend is facing, because she has been given a position and she has to try valiantly to defend it, but I do not think that anyone at any stage has explained why 10 days is appropriate. If, as my noble friend on the Front Bench is saying, it is for the House of Commons to make a decision, what is wrong with giving it the opportunity to reflect on this issue again?
Baroness Hayter of Kentish Town
My judgment is that it would come to the same view.
Baroness Hayter of Kentish Town
Could I finish what I was saying? Whatever it finally decides, the point is that it has taken that decision. The argument has not been made to my satisfaction that its view is so wrong and our view so right that it is only us who are right and not it.
Lord Howarth of Newport
My noble friend is very kind to give way. She says that the House of Commons has taken that decision and she thinks that it would take the same decision again. In the figures that she just gave, less than half the Members of the House of Commons voted. Is it not the role of this House to invite the other place to think again in appropriate circumstances? Is that not exactly what we should be doing here?
Baroness Hayter of Kentish Town
As many noble Lords will know, I have helped defeat the Government and sent stuff back where I have believed that the other House was wrong and I wanted it to rethink. We have done that on a number of Bills. We have had victories. We have sent things back and occasionally there has been movement. It is always a judgment call. On this issue, however, my view is that we have the right figure. As I have said before in this House, it is a very delicate balance. What we do not want is such a low number—
Baroness Hayter of Kentish Town
She is a long way from sitting down by the sound of things.
Lord Campbell-Savours
She says she has the right figure. Let me put to her a scenario. Imagine a case of non-declaration of interests that is worthy of a penalty of more than 10 days but not 20 days. I can remember some pretty difficult cases of non-declaration of interests. Are we saying that in such a case we should invoke a procedure which could lead to a by-election that costs hundreds of thousands of pounds both to the political party and the local authorities, with all the inconvenience of bringing in vast numbers of party workers to defend the party interest, because of a case of non-declaration where the Member’s defence may be that they simply made a mistake but where the committee realises that it has to invoke a punishment of at least 10 days?
Baroness Hayter of Kentish Town
The answer is yes. If the MP’s own colleagues—I do not want to use the word “peers”, as it is a bit confusing—believe that the issue is serious enough for a suspension of at least 10 days, they would do so, although I find it hard to believe that they would so for a mistake. That is what this Bill is all about. The trigger may be 10 days or my noble friend may be right and perhaps it should be 12 days or nine days—I do not know exactly because it is a judgment call—but this Bill is about saying that, where their fellow Members of Parliament consider that the issue is serious enough, that is the trigger for a recall.
It is also important that the figure is not so low that we undermine in any way either the sort of normal protest that could happen in the House of Commons or the mistake—although I doubt that it would apply for a mistake—or misdemeanour that so offends other MPs that they take the MP to the Standards Committee. The essence of the Bill is that a recall will be triggered when the suspension is for a certain length of time.
There is another, separate point. Whether the threshold is five, 10, 15 or indeed 40 days, there will always be the difficulty—as happens when magistrates hear cases—where the knowledge that the decision can trigger a by-election will add an extra dimension to the judgments that are taken. That applies both to magistrates in a court case, if it is about whether there should be a sentence of imprisonment rather than a fine, and to those dealing with these situations. That is tough. Decision-making is tough. I recognise that, but I do not think that the number of days minimises that effect.
We will deal later with a very helpful amendment from my noble friend about the Standards Committee, which I hope will address some of the challenges that will be before members of the Standards Committee. On this amendment, the decision has been taken by the other place and I think it is right. I hope that my noble friend will withdraw the amendment.
Lord Wallace of Saltaire (LD)
My Lords, I pay tribute to the commitment and care with which the noble Lord, Lord Campbell-Savours, has pursued this issue. The Government have of course therefore actively considered it over some period of time.
I have to say that I do not recognise what the noble Lord described as the widespread anger in the Commons over all this. I have just been checking with my noble friend Lord Gardiner and thinking that through. During the period when the Bill has been going through its Lords stages, I have met members of my own party in the Commons and my noble friend Lord Gardiner has met members of his own party there. We have met people from the Labour Party, our opposite numbers and the Bill managers within the Commons on a number of occasions. It is remarkable to me that what the noble Lord, Lord Campbell-Savours, has heard has not managed to reach our ears. It has been relatively public knowledge that we were indeed managing the Bill through this House.
The suggestion that the House of Commons voted on a substantial change to the Bill without understanding what it was doing seems to be stretching matters a little. It may be that this was a catastrophic mistake of the Labour Party in the Commons, as the noble Lord, Lord Howarth, said. I recognise the strength of feeling among a number of Labour Peers within this House that it was a catastrophic mistake by their own party. All I can say is that this has not reached the Government’s ears. We have not had protests, or suggestions that we need to save the Commons from itself in the way proposed.
The noble Lord, Lord Cormack, talked about eroding the sovereignty of Parliament and how we have again to protect that dimension. However, all those of us who have been out campaigning in recent weeks know that what those of us who are attached to the traditions of the British constitution think of as the sovereignty of Parliament is thought by too many of those on whose doors we knock as the Westminster bubble. We have great difficulty in persuading them that it is worth voting at all. They think that all politicians are in here for themselves. This is part of why the recall Bill has gone through a series of consultations over the last three years and is now going, not hastily, through both Houses.
We have considered at length this question of the proper period of suspension which should trigger recall in this House and in other discussions outside the House. We do not see a strong case for reversing the decision which the House of Commons took on an amendment from the Labour Opposition and, having considered it, we are therefore not willing to accept the noble Lord’s amendment.
The decision of the other place was clearly based on the precedent of past suspensions for misconduct recommended by the Standards Committee. The Standards Committee has in the past recommended 10-day suspensions for receiving payment to ask questions in the House, misuse of access to the House and breaching the Code of Conduct—cases which should undoubtedly be considered as serious wrongdoing. We are not considering cases of innocence or unproven allegation.
Lord Forsyth of Drumlean
I am listening carefully to my noble friend’s argument, but surely the Government considered these matters very carefully when they came forward in the first place with their proposal for 20 days. Can he explain to the House why the Government thought that 20 days was appropriate, with all the knowledge about previous penalties imposed by the Standards Committee?
Lord Wallace of Saltaire
The noble Lord knows very well that the choice of the exact number of days is a matter for judgment. We recognise that the House of Commons took a judgment on that and we are accepting that judgment.
The question of the role and composition of the Standards Committee is also tied up in this. Looking at the next group of amendments, we will continue discussing the important question of the Standards Committee, on which I recognise that a number of members of this House have served. I thank the noble Lord, Lord Campbell-Savours, for his considerable efforts, which I respect, but I nevertheless ask him to withdraw his amendment.
Lord Campbell-Savours
My Lords, how can I answer that? I am at a loss. The noble Lord says that he has consulted with his colleagues on the Liberal Benches in the Commons, but I know for a fact that a number of Liberal MPs have expressed concern on whether even they were aware of what they were voting for.
I say to my noble friend Lady Hayter on the Front Bench that many people behind her who support my amendments do not like the Bill. I have always liked the idea of a Bill that deals with recall, and many of us who support the position that I have taken on the Bill support recall. We are arguing about a very small but highly significant detail in the Bill which we believe will have effects which the House of Commons has not as yet taken into account. As I said in an intervention, there was almost no debate apart from a couple of sentences.
I warmly thank my noble friends Lord Howarth of Newport and Lord Hughes of Woodside for their argument that we should just give the other House another opportunity. I am absolutely convinced that everyone who supports 10 days will back down in the event that this matter is put before the Commons. Therefore, although the noble Lord, Lord Forsyth, says that he felt that the Rifkind-Straw affair does not weaken the position, it does so in the sense that it has put the fear of God into many Members of Parliament that they cannot meddle with the decision. They would have meddled with it, but they do not want to. That is why that has somehow changed the agenda and made it much more difficult for us to get the amendment through today.
My noble friend Lady Taylor, who spent some years on the Privileges Committee with me, drew on what is at the heart of our amendment. The committee in the Commons will now be politicised; some in the Commons will think, “Well, if we can change it and get more of a lay membership, somehow the climate within the committee will change”, but I am afraid that is not the case. The fact that by-elections can now be precipitated simply by 10 days’ suspension will infect that committee, whether it has lay membership or otherwise. They will be conscious of the debate going on in Parliament more widely on what happens as a result and what happens during the course of a by-election with all the expense involved.
I have listened to my noble friend. I would love to divide the House today, but I will not do so. There will be an incident, a decision and a public row, and those who argued in defence of this 10-day nonsense will come to regret what they have done—and that applies to all Dispatch Boxes in both Houses. On that basis, I beg leave to withdraw my amendment.
Lord Campbell-Savours
Lord Campbell-Savours
My Lords, this amendment was born from an undertaking given by the noble Lord, Lord Wallace of Saltaire, in winding up in the last debate on Report, at col. 1144 of the Official Report of 10 February 2015, when he said that he would consider my Amendment 6, which dealt with the issue of lay membership of the Standards Committee. My amendment draws on a report of the Procedure Committee on lay membership of the Committee on Standards and Privileges from November 2011. The report states that the Procedure Committee in the Commons concluded that,
“if lay members were to be given voting rights, legislation should set the matter beyond a doubt. The Committee believed that appointing lay members in the absence of such legislation would carry a ‘strong element of risk’, in that it could ‘lead to conflict between the House and the courts and might have a chilling effect on how the Committee conducts its work even before such a challenge emerged’”.
That comment in the report came in response to a Commons resolution of 2 December 2010 inviting the Procedure Committee to bring forward proposals from the Committee on Standards in Public Life for lay membership to be appointed to the Standards and Privileges Committee, which, indeed, is precisely what has happened.
However, the voting aspect is not a new issue for the House of Commons to consider. It was first considered in 1876, when Sir Thomas Erskine May, then Clerk of the House of Commons, argued that it was not an illegal act to appoint lay members with full voting rights to committees on Private Bills. However, since then, I understand that both the Clerk of the Commons —I think in the last Parliament, but perhaps even earlier in this Parliament—and the Joint Committee on Parliamentary Privilege opposed lay members being given the right to vote. I have therefore tabled this amendment to give the Government the opportunity to clarify their position on that matter.
I consider that this is an important issue. That is why I am moving this amendment. On 10 February, at col. 1131 of the Official Report, I argued for a very different approach to the handling of complaints by the Commons Standards Committee based on a majority lay membership—which I support—with a right to recommend, but not vote, and with its recommendations being either accepted or rejected by a committee minority of elected Members of Parliament—as elected Members of Parliament, they would enjoy full parliamentary privilege—as against the majority lay membership. If the Minister has difficulty addressing all the points I am making on this matter, I will perfectly understand if he wishes to write to me after the debate. However, it is very important that at some stage in the near future—certainly in this Parliament—we establish the Government’s attitude to lay members of the Standards Committee being given that right to vote. I beg to move.
Lord Tyler
My Lords, I speak to Amendment 5, which is linked with the amendment just moved by the noble Lord, Lord Campbell-Savours. I am delighted to follow his forensic and forceful analysis of the very serious issues arising from this part of the Bill and have considerable sympathy with his views.
Ever since Second Reading, the noble Lord, and indeed noble Lords on all sides of the House, have rightly raised concerns about the effects of the Bill on the fragile, non-partisan nature of the Standards Committee in the Commons. I think that many Members of your Lordships’ House remain concerned about that. Indeed, it was a theme of the debate we have just had on previous amendments. I note that a number of prominent former Members of the Commons expressed those concerns, particularly those who, like me, have had to deal with the Standards Committee in a variety of official roles.
In the same vein, and right from the start of this Bill’s passage through Parliament, beginning in the other place, there have been cross-party endeavours to ensure that the process for triggering a recall petition is independent of MPs and is seen to be independent of MPs. My noble friend Lord Norton raised this issue in the early stages of the Bill’s consideration here, and it was the theme of the important report of the Constitution Committee of your Lordships’ House. In my view, and that of my colleagues across the House, it remains the one crucial weakness at the very heart of the Bill, and it has been the subject of widespread concern in both Houses.
Ministers have been open throughout to suggestions for improvements and I am extremely grateful, as are my colleagues, to them and officials for being so ready to discuss changes that might be made. The Minister in charge of the Bill, Greg Clark, made a promise at the end of the Commons stages that,
“the Government were clear on Second Reading that we are open to ways to improve the Bill and we stand by that commitment”.—[Official Report, Commons, 24/11/14; col. 681.]
He has been true to his promise, and there has indeed been constructive engagement in your Lordships’ House. However, I am sorry to report that attempts to find another route for triggering recall that would have obviated MPs and the Standards Committee altogether have failed. We tried but it has not been successful.
In the interim, the Standards Committee has produced an extremely thoughtful, positive and authoritative report on its own future and role. As Members who were here on Report will recall, the report was published that very morning. It is therefore not surprising that few of us were given the opportunity to read it in detail. For that reason, I hope that I will be forgiven for reading a critical paragraph of the report, paragraph 34 on page 40, in full:
“A number of criticisms are levelled at the House of Commons disciplinary system both by outside observers and parliamentary insiders: MPs sit in judgement on themselves; the Commissioner is not truly independent; there is incomplete separation of powers with the Commissioner acting as investigator, prosecutor and to some extent adjudicator; the system is disproportionate; the rules are not clear; MPs cannot get advice; the sanctions are insufficient. It is these criticisms which this Report considers and, where appropriate, makes recommendation for addressing”.
Every Member of your Lordships’ House who has been following the progress of the Bill must recognise that that paragraph and the whole report are critical to the way in which the recall Bill is supposed to proceed; they are vital. That is why we have tabled new amendments to make sure that there is a direct linkage between action that is taken to fulfil the recommendations of the Standards Committee and the implementation of this part of the Bill.
The Standards Committee also says in terms that it needs a more robust, more sizeable independent element. This is why it links so well with what the noble Lord, Lord Campbell-Savours, has just been saying about the lay members. The committee’s recommendation at paragraph 90 is:
“After considering various Committee sizes we recommend a marginal increase in Committee size from thirteen to fourteen, with seven lay and seven elected members”,
thereby building the independent role of those lay members in all matters that would be relevant to the recall Bill. The report, and that specific recommendation, is the inspiration for Amendment 5, for which I am grateful to have the support of my noble friends Lord Norton and Lord Lexden and the noble Lord, Lord Alton.
It is in that specific section of the Standards Committee report that we should be putting our faith, trust and confidence if we are to make sure that the Bill has any credibility in the outside world, let alone fulfils the full obligations of the committee and deals with the problems to which so many Members of your Lordships’ House have been referring. Our amendment would ensure that the committee’s key recommendation was implemented before the Committee on Standards was asked to get involved in this potentially invidious way in the recall process. Alongside the other committee recommendations, such as that,
“the body of any Report makes clear whether or not the lay members agreed with the Report”,
this change would at least be a start in showing that the recall process is reasonably independent from MPs, and is seen to be so.
I hope that my noble friends on the Front Bench will be able to respond positively to this amendment. Although the composition of the committee is of course a matter for the whole House of Commons, I understand that the Leader of the House and his colleagues are taking this matter of the relationship between these proposals and the Recall of MPs Bill extremely seriously. Surely we can now have a firm assurance from the Government that they would not want to see this recall mechanism operated by a committee with an insufficient number of independent lay members sitting on it.
Lord Lexden (Con)
My Lords, I rise once more in support of my noble friend Lord Tyler, having also done so on the earlier occasions when he brought forward amendments designed to improve this highly imperfect Bill. As my noble friend has made clear, the objective has been the same throughout: to try to find a way of removing or at least lessening the involvement of MPs themselves in the processes by which a recall petition can be triggered. That central issue was underlined in the report on the Bill that was provided by your Lordships’ Constitution Committee, and that report has been much in our minds during these proceedings. No one could expect to be seen to be acting utterly impartially in determining a period of suspension when a heavier penalty will trigger recall and a lesser one will not.
As my noble friend has made clear, he and those of us who supported the amendment have now taken into account a major development that occurred during the passage of the Bill through this House. As my noble friend reminded us, news of a very significant report on the composition of the House of Commons Committee on Standards reached us on the very day that we consider the Bill on Report. It has now become clear that the committee members believe that its composition should be changed to give equal representation to MPs and lay members. Now that the committee has gone that far, it would surely be sensible to wait until the committee has assumed its new form and acquired the greater independent representation that is now proposed before it is given its recall responsibilities. That is what this amendment seeks to do, and I am very glad to support it.
Lord Howarth of Newport
My Lords, I argued in the previous debate that surely the way for the House of Commons to re-establish its good reputation is for it to take responsibility for its own self-government and its own self-discipline. I am therefore opposed to the propositions put forward in these amendments, and indeed by the House of Commons Committee on Standards, not only that there should be lay members of the committee but that there should be equal numbers of lay members and Members of Parliament and that the lay members should have votes. It seems to me that those arrangements would not be consistent with the House of Commons taking the responsibilities that I believe that it should.
I also suggest that what we are being invited to approve is inconsistent, first with Magna Carta, which established the principle of trial by peers, and secondly with the Bill of Rights, which asserts parliamentary privilege and insists that the proceedings of Parliament should not be questioned or impeached by those who are not Members of Parliament. It may indeed be the case that Parliament has power to set aside Magna Carta—even in its 800th anniversary year—and that it has power to discard elements of the Bill of Rights. I would suggest only that parliamentarians should draw a very deep breath and think very carefully indeed before they do so.
The noble Lord, Lord Tyler, is always Jacobinical—he has a splendid fury in his reforming drive—but the noble Lord, Lord Lexden, has a profound knowledge of parliamentary history. The noble Lord, Lord Norton of Louth, who is not able to be in his place today, is deeply knowledgeable about parliamentary privilege. The noble Lord, Lord Alton, another of the sponsors of Amendment 5, is a very experienced former Member of the House of Commons. I am startled that some of those noble Lords should associate themselves with this kind of drastic change, which, in the present circumstances, when all of us are intensely concerned to see how the good reputation of Parliament can be better upheld, would surely be in effect an abdication of the central responsibility that Parliament has for itself and for its own good conduct. I am deeply opposed to these amendments.
Lord Cormack
My Lords, not for the first time this afternoon I find myself in complete agreement with the noble Lord, Lord Howarth of Newport. This amendment, well intended as I am sure it is—I have the highest regard for those who have put their names to it—is damaging to Parliament. It is inimical to the spirit of Magna Carta and the Bill of Rights. Frankly, like the noble Lord, I am astonished that people whom I regard so highly as doughty defenders of Parliament should in fact be complicit in an amendment that, if passed, could have the effect only of further emasculating Parliament. I also agree entirely with the noble Lord, Lord Howarth, when he expresses concern that the committee in another place should have recommended this lay participation. That is inimical to the whole doctrine of parliamentary privilege, which is of incalculable importance and, when used correctly, is a bulwark of our liberties in this country.
There was no prouder day for me than when I was elected to another place. A number of your Lordships who were there are present this afternoon. It is interesting that those who are expressing particularly acute concerns about the Bill are mostly those who have served in another place. When I entered that place, I felt, in the words of, I think, Admiral Rodney in the 18th century, that there was no higher honour that any Englishman— of course in those days there were no women in Parliament—could aspire to than being a member of a sovereign parliament in a sovereign nation. That we should be whittling away at the very foundations of our parliamentary and civil liberties makes me profoundly sad. I could not support this amendment; I cannot support the Bill in any way, shape or form.
Lord Campbell-Savours
My Lords, I am sorry to part company from my noble friend Lord Howarth of Newport, but I support Amendment 5. Perhaps it is a bit of a selfish reason as to why, which is that it helps facilitate the alternative approach that I put forward on Report. The amendment says that the committee should have,
“a number of members who are not Members of Parliament at least equal to the number of members of that Committee who are Members of Parliament”.
Of course, had the arrangement that I proposed on Report been in place, there would be more lay members of the committee than ordinary members. That falls precisely within the definition set out in this amendment, in that Ministers could actually introduce the scheme that I was suggesting in legislation—or indeed the House could, but it would need legislative support.
To remind Members of what that scheme was, essentially there would be 10 members of the committee, with seven lay and three elected. The three elected members would enjoy parliamentary privilege because they are elected. The seven lay members would be effectively advising the committee. They vote and make their recommendation, but it is for the three elected members to decide whether to reject or accept the recommendation of the lay members. The elected members essentially have charge—a responsibility for approving the recommendations so that they can be submitted to the full House of Commons. For that reason I accept the amendment. It takes us partially down the route that I want to go down, and I hope that the Government, at some stage in the future, will finally select that route.
Baroness Hayter of Kentish Town
My Lords, this has been an interesting debate—and not simply because it is an easier one to respond to. As I said when we discussed this subject in Committee, or possibly on Report, we strongly support having more lay members on the Standards Committee. We believe that it is crucial for that body to have the confidence of the public, so opening up its work to people who are not MPs is an excellent step towards gaining that confidence. In other areas of life—in the medical profession, the legal profession and other professions—outside independent members are now the norm in any disciplinary process. That gives confidence to patients and clients that someone other than the cohort of those whose behaviour is being judged is involved in the decisions. Indeed, I think I am right in saying that in most of those other professions there is now a lay chair of the relevant disciplinary body.
As my honourable friend on the Front Bench in the other place said, we want to see a,
“radical overhaul of the Committee. That would include the removal of the Government’s majority and an increase in the role and authority of its lay members. We propose that at least half the Committee should be lay members and that the Chair of the Committee should not be a Member of Parliament”.—[Official Report, Commons, 27/10/14; col. 69.]
It is encouraging that today there has been backing from all sides of the House on the need to move forward in this respect. The Government may say that the Bill is not the appropriate place to make such a change—although I note the astute amendment tabled by the noble Lord, Lord Tyler, and others—but whether that is the case or not, we are sending an important message that all the political parties are determined to see the Standards Committee work effectively, fairly and transparently, and in a way that gives voters confidence in its work.
Lord Wallace of Saltaire
My Lords, I thank the noble Lord, Lord Campbell-Savours, for his references back to the historical developments. My brief says that there is a record of lay members serving on a Commons committee as far back as 1836, and that it was in 1876 that Erskine May laid down that while it was perfectly acceptable for lay members to serve on Commons committees it was not acceptable, within the doctrine of parliamentary sovereignty, for them to vote on such committees. I understand that that is the position that we still hold. There have been lay members of Commons committees in the past and there are now three on the Standards Committee, whose recent report suggests that the number should increase to seven.
The noble Lord, Lord Howarth, and the noble Lord, Lord Cormack, have taken us back to Magna Carta, the Bill of Rights and a range of other things. I should say to the noble Lord, Lord Howarth, that I am currently reading Professor David Carpenter’s very helpful, and massive, book on Magna Carta, and I am becoming a little more doubtful about the beauty of Magna Carta, fully put, than I was. Its treatment of women and Jews, for example, is not exactly in line with modern habits—just as, if one reads the Bill of Rights carefully, as I have also done, one learns that its assumptions about Roman Catholics are not ones that would meet with automatic approval in the 21st century.
Lord Wallace of Saltaire
Yes, we will make exceptions in some cases—particularly for the sons of Church of England clergymen.
Standards have developed and moved, and we are discussing how we would advise the House of Commons and how the Government should respond to the House of Commons on its proposals to move the Standards Committee further. The recent report calls for an increase in the number of lay members—we have had three lay members since 2013—and in their representation as a proportion of the committee. The Government already have a high regard for the lay members of the Standards Committee and appreciate the very important role they play in the work of the committee. The three lay members who currently serve have clearly made a valuable contribution and add an important level of independence to the process.
The Standards Committee report has only very recently been published and the Government have not found time to agree a formal response—the matter is, after all, in principle for the Commons itself. If I may say as clearly as I can, the Government can see no reason at all why there should not be an increase in the number of lay members of the committee, as proposed in the Standards Committee’s report. The disciplinary procedures of the House of Commons are, in principle, a matter for that House as a whole. It is for the Government to facilitate a debate in which the report of the Standards Committee can be considered in detail and consequent changes agreed.
I would urge this House to ponder carefully any course of action that might be interpreted as pressuring, influencing or leaning on the other place to make such a significant change to its disciplinary procedure. After all, we come up against issues of parliamentary sovereignty and parliamentary privilege.
Lord Tyler
I am grateful to my noble friend and recognise that he is in a difficult position for the reasons he has just enunciated. We do not want to look as if we are telling the House of Commons when it should take its business, but can he at least, say, on behalf of the Government, that it would be the hope and intention of the business managers for the extremely important report from the Standards Committee to be addressed and, I hope, action taken before the Dissolution of this Parliament later this month? May I appeal to the Minister to ignore the pleas from the ultra-conservative tendency in this House, represented by the noble Lords, Lord Howarth and Lord Cormack, who I think have not read the report of the Standards Committee which addresses very carefully the issues of parliamentary sovereignty and parliamentary privilege?
Lord Wallace of Saltaire
I also give way to the noble Lord, Lord Campbell-Savours.
Lord Campbell-Savours
Can I clarify the position and go back to what I was asking? What is the Government’s position on voting in that committee in the event that it were to proceed to implement the increased lay membership, to which the Minister referred?
Lord Wallace of Saltaire
I am trying to be as helpful as I can on a very recently published Standards Committee report. I remind the House of some of the history. When the Kelly report from the Committee on Standards in Public Life in 2009 recommended that there should be lay members on the Standards Committee, the recommendation was accepted in principle and referred to the Procedure Committee. That committee, in line with parliamentary precedent, reported that, while there was a long history of non-voting lay committee members, there was also a long-established precedent that only Members of the House could vote. The Government do not see any reason why we should override that long-standing precedent.
To add a further dimension on the complexity of the constitutional issues with which we are dealing, the Joint Committee on Parliamentary Privilege in June 2013 advised very clearly against legislating on the lay membership of the committee. To do so would risk bringing the operation of parliamentary privilege, as it currently applies to the standards and other committees, into question. The membership and operation of the Standards Committee is a matter for the House of Commons and the provisions in the Bill have been designed in such a way as to fit in with its disciplinary arrangements, however they are constituted. The second recall trigger would work in exactly the same way whether there were three, seven, 10 or 15 lay members on the Standards Committee, so it would not be justified to stop the second trigger from operating unless the number of lay members was increased.
The Standards Committee report also specifically says:
“The Committee has said that it will work to implement whatever Parliament decides on recall”.
Whether or not the other place decides to act on the Standards Committee’s recommendations—and, as I have said, the Government certainly see no reason why it should not in respect of the lay members of that committee—the committee’s essential role in holding MPs to account for their conduct will remain unchanged.
The noble Lord, Lord Tyler, asked me to guarantee in the remaining short weeks of this Parliament that the Commons will reach that decision before Parliament is dissolved. I am unable, standing here, to give any such absolute guarantee, but I will certainly take that back to my colleagues in the other place and make the point.
Having given as warm assurances as I can to this House, I hope that enables the two noble Lords to withdraw their amendments.
Lord Campbell-Savours
My Lords, I am indebted to the Minister because he has made the position clear. We now know that the Government do not support the Standards Committee’s lay membership being given the right to vote, which brings me right back to my Amendment 6 which I moved on Report, which I now believe is a real option. I was also against the lay membership being given the right to vote informal proceedings, which was what I was trying to flush out, because it makes my amendment more sensible.
All I would like from the Minister is an assurance that the debate that took place on Report, and if I might modestly say in particular the proposal in my amendment, will be considered by the appropriate authorities. I would ask those who are charged with reading these matters in the other place, as invariably they do when we deal in this place with House of Commons business, to read the debate and consider that amendment. I think that my proposal was a very reasonable way to proceed. It would ensure that the lay membership really felt they were making a contribution and it would not take us down road concerning the issue of parliamentary privilege, which my noble friend Lord Howarth of Newport was essentially alluding to. On that basis I beg leave to withdraw my amendment.
Lord Gardiner of Kimble
Lord Gardiner of Kimble (Con)
My Lords, Amendment 4 would reduce the petition signing period from eight weeks to six weeks. On Report, we debated the amendment of the noble Lord, Lord Howarth, to reduce the signing period to three weeks. The Government felt that shortening the availability of the petition to this length of time would make the petition process unworkable, especially for those who wished to sign by post. However, it was clear from that debate that the decision to increase the number of signing places to a maximum of 10 could allow us to consider a reduction in the signing period.
We have listened carefully to the arguments put forward for reducing the signing period and believe that a reduction to six weeks is a sensible and practicable step. I am grateful to the noble Lord, Lord Howarth, and also to the noble Lord, Lord Foulkes, who is not in his place today, whose amendments at previous stages of the Bill’s consideration have raised this question. Having reflected on the issue, we consider that a shortened period of six weeks would strike the right balance between tightening the process and enabling proper access to signing. It would allow sufficient time for electors to consider the campaigns for and against signing the petition and enable those who wish to sign by post to make an application.
Additionally, the revised period would still allow the petition officer to check and approve postal applications in good time for signing sheets to be issued and returned, including making the important check that an elector has not already signed the petition in person. A further benefit of shortening the signing period, which was referred to in previous debates, is that constituents will find out the result of the petition sooner, and if a by-election is to be held, this would enable the election of their Member of Parliament more quickly.
In considering this issue, we have taken very seriously the views of your Lordships’ House and we believe that the amendment is a sensible improvement to the operation of the recall petition. The amendment has the support of the noble Baroness, Lady Hayter, and the noble Lord, Lord Kennedy, for which I am most grateful. For those reasons, I beg to move.
Lord Howarth of Newport
My Lords, I am most grateful to the noble Lords, Lord Gardiner of Kimble and Lord Wallace of Saltaire, for their characteristic generosity and their willingness to reflect upon the issues that were raised in the debate on Report, to meet me and my noble friend on the Front Bench, and the decision they have reached to reduce the signing period from eight weeks to six weeks.
There were four essential arguments in connection with this. One was that, as a result of the most welcome amendment which the Government themselves brought in on Report increasing the number of signing places to up to 10, there will not be the same difficulty for registered electors to find their way to somewhere where they can sign.
There is also the question of cost. We do not want to prolong this process and its associated costs any longer than is necessary. Maintaining no fewer than two staff, I should think, who will work quite long hours for eight weeks and in up to 10 signing places, with the costs of premises and equipment, will be pretty expensive. Indeed, I would be interested to know if the Government have made any calculation or estimate of how much per week they anticipate this process to cost. Anyway, it is highly desirable that it should be kept to the minimum.
Another argument was very strongly made by my noble friend Lady Hayter of Kentish Town that it is most important to minimise the period during which citizens in a particular constituency would not have the services of their MP available to them, whether in the constituency or in the House of Commons.
Finally, what is for me the most important argument is that it is desirable to minimise the period of what I think will be an intensely unpleasant political process. We will see journalistic vultures circling around what they take to be political carrion. As people witness this experience—I hope to goodness that they never will and that the provisions of this Bill never have to be operated in practice—I fear that the unpleasant nature of this political process will deepen the revulsion that many feel for politics and that any gain in accountability will be more than offset by an increase in public disaffection with politics.
While I do not want in any way to be churlish, I think that the Government have perhaps been unduly timid in reducing the signing period from eight weeks to only six weeks. My amendment on Report proposed a period of three weeks and that was perhaps a little optimistic, but I would have thought that the necessary processes could be transacted in four or five weeks. I was unpersuaded by what was a key argument put forward by the noble Lord, Lord Gardiner of Kimble, that ample time should be made available for people who do not already have postal votes but decide that they would like to sign this petition by way of a postal procedure to be able to apply to do so. I think that that is a bit of a luxury that is not really needed. At all events, the noble Lord, Lord Norton of Louth, pointed out to us in an earlier debate that a whole general election can be conducted in four weeks; we are about to have a general election conducted over a period of five and a half weeks including the Easter holiday. So I think that insisting on a period of no fewer than six weeks for a petition, which would find its conclusive result if only 10% of the electors sign it, is unduly timid.
However, as I say, I do not wish to be churlish and I am genuinely grateful. A reduction from eight weeks to six weeks is 25% off, and that is pretty good. I thank both noble Lords and I am happy to support the government amendment.
Lord Tyler
My Lords, I think this is a sensible compromise. I, too, supported the view that the excessive period was unnecessary. Once we had in place the flexibility on places for signing to take account of geography and demography in areas such as the one I know and the one the noble Baroness knows, it was a very sensible thing to move. I do not accept that a further, more drastic reduction to three or four weeks would really have been very practical. After all, this is not going to be an anticipated event in the same way that a general election is. There will be an extension of postal involvement in the process, and therefore six weeks is a reasonable period. A further reduction would be wrong. This is a good compromise, and I am grateful to my noble friend.
Baroness Hayter of Kentish Town
I add my thanks to the Minister for tabling this amendment, to which we have added our names. I also congratulate my noble friend Lord Howarth of Newport, who argued persuasively both on Report and today. Given the move from four to 10 signing places, we really did not need the lengthy period of eight weeks. I hope that, for costs and other reasons, there will now be less need for people to apply for postal votes, and it will be easier for people to arrange to meet one of the signing places. While we would not want to rush the petition, we think that both the MP and the constituents deserve to have as swift a result as possible so that the MP is not taken away from their normal parliamentary duties for an inordinate period, as has been outlined by my noble friend Lord Howarth. We see six weeks as being an improvement on eight and look forward to this amendment passing shortly.
Lord Gardiner of Kimble
My Lords, this has been a short but important debate. I am glad that we have been able to reach what I think is a sensible arrangement, after compelling arguments. I beg to move.
Lord Wallace of Saltaire
Lord Wallace of Saltaire
My Lords, since this is the last group in this debate, I thank those who have taken part for the constructive role that they have played in the very thorough scrutiny that this Bill has had. I was a little upset when the noble Baroness, Lady Taylor of Bolton, suggested that we had done our business hastily. I think that we have done our business—from Second Reading, through Committee to Report, and now to Third Reading—in the appropriate way in which this House behaves. We have met with those who have expressed their greatest concerns on the Bill, and, as the names on the amendment to which I am now speaking show, we have done our best to reach a consensus with the Opposition where they have made reasonable points, which the Government feel should be taken into account.
I am also very grateful that we have had such an extraordinarily good and efficient Bill team for this Bill. Over the last four and three-quarter years, I have met rather more Bill teams than I would like to have done, and on one or two occasions I have realised what you suffer if a Bill team does not do what you need for a Monday afternoon Committee stage—on one particular occasion, the legal adviser had missed the ferry back that morning from the Isle of Wight and we arrived without the full pack that we needed. I am confident in saying that this is one of the best Bill teams that I have had.
Government Amendments 6, 7 and 8 require the petition officer to deliver all recall petition returns to the Electoral Commission as soon as reasonably practicable after the documents have been received. These support the more substantive government Amendment 10, which will require the Electoral Commission to prepare and publish a report after every recall petition. These amendments build on those first tabled by the Opposition on Report, and I welcome their support for our amendments today. I am grateful to the noble Baroness, Lady Hayter, and the noble Lord, Lord Kennedy, for their constructive engagement on this issue.
In drafting the Bill, the Government have been keen to ensure that we create a regulatory environment that is consistent with existing electoral law. However, we recognise that recall petitions are a new style of electoral event for which there is no one-size-fits-all set of rules that can be applied. That said, we have drawn heavily, as far as we can, on underlying principles from wider electoral law—notably, encouraging participation through proportionate regulation and preventing undue influence by wealthy groups and individuals.
The Government have been grateful to noble Lords for their contributions throughout the passage of the Bill in terms of how the campaign should be regulated. The Government have also been consistent in our view that the spending and donation rules that we have put in place are appropriate to the nature of a recall petition and are fair and workable in practice. We appreciate the desire to ensure that the process is properly assessed in what we hope will be the very rare event of a recall petition taking place.
The Bill as introduced to this House provides for the Electoral Commission to report on the conduct of a recall petition, including how the spending and donation rules work, at its own initiative. Noble Lords have expressed a desire to see a formalisation of this process, requiring the Electoral Commission to report after every recall petition. These amendments will provide for this. Amendment 9 corrects a minor and technical issue with the drafting of Schedule 5 to the Bill. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, my noble friend Lady Hayter of Kentish Town and I have also put our names to the amendments tabled by the noble Lord, Lord Wallace of Saltaire, on the role of the Electoral Commission. As the Minister has described, the amendments have the effect of requiring the Electoral Commission to take a greater role in the scrutiny of recall proceedings, which is to be welcomed. As a general principle, the Electoral Commission needs to move on from its present position of offering advice and guidance to more specific areas that it is responsible for, and to be held account properly by Parliament for its work in those areas. That is my position, although it is a matter for another day.
The specific amendments address the points that I have argued were lacking throughout the Bill. I am grateful to the Minister for mirroring the amendments that we on these Benches put forward in previous stages of the Bill. The first set of amendments to Schedule 5 ensures that all returns by campaigners are subject to checks by the Electoral Commission and delete the phrase “on request”, thereby requiring the petition officer to deliver a copy of all the recall petition returns when they have been received. We strongly disputed the Electoral Commission’s view that these would be little local events with a local feel. I took the view that that was a silly claim by the commission; we all know that these will be national events attracting enormous media attention. The commission is best equipped to look at the work being done with returns, as it has both the resources and the expertise at its disposal. I did not accept the commission’s note on this when it said that it may need additional resources to make this work. We all hope that these provisions will be enacted very rarely, and I am very confident, as a former commissioner, that this extra work can be done from existing resources.
We believe that these amendments are particularly important, given that the Government have not accepted our concerns about the potential loopholes that have been left open with regards to donations and expenditure received by both accredited and non-accredited campaigners. This at least goes some way towards ensuring that the financial circumstances of campaigns are subject to some level of scrutiny. Although we are disappointed that the Government have failed to address what we from these Benches regard as the inherent unfairness in the equality of arms of accredited campaigners, as well as the lack of safeguards on permissible donors, we are at least glad that we have managed to persuade Ministers that it is paramount that donation returns are checked.
It is hoped that this will go some way to providing confidence in the financial aspects of recall campaign procedures, which we on this side of the House believe could be open to abuse. The Government’s other amendment to Schedule 5 is a technical amendment, which clarifies the Bill, and we support it. The amendments to Schedule 6 require the Electoral Commission to produce a report on the recall petition proceedings once they have been completed. As I said previously, given that this is an entirely new facet of campaigning, I believe that an independent assessment of the process would be greatly welcomed, not only by constituents but by those affected or involved in the process, and by everyone else involved.
In conclusion, the amendments made in your Lordships’ House have been small but significant in making it more workable for all involved. Perhaps the most important inclusion in the forthcoming regulations will be the requirement on the petition notification card to inform electors of the fact that they are signing what could become a public petition. Given that the Government rejected our judgment that this was de facto a public petition, this is at least something to address the issue of secrecy and the availability of the marked register, the details of which still have to be worked out.
Regrettably, little attention has been given to such practicalities or even the principles of the recall process, which explains why so much has been left to regulations —fairly inexcusable, given that the Government have had an entire Parliament to draft a 25-clause Bill. Despite this, the help that we received from the noble Lords, Lord Wallace of Saltaire and Lord Gardiner of Kimble, was much appreciated, and we welcomed it very much. They were willing to meet us to discuss the detail and the principle, so I record my thanks and those of my colleagues on these Benches for their hard work. Also, I join them in supporting and thanking the Bill team for their hard work; they have been courteous and helpful throughout the process.
I thank my noble friend Baroness Hayter of Kentish Town. We were friends for many years before we came into the House—we came in on the same list nearly five years ago. It is always a pleasure to work with her. Her leadership and hard work on this are much appreciated by everyone involved. I thank my colleague Helen Williams from the opposition office for her contribution; though it was behind the scenes, it was very much appreciated by me and my colleagues here. I also thank noble Lords on all sides of the House for their work. We have done our job as a revising Chamber, and I am grateful to everyone involved.
We have all expressed the wish that the Bill will never need to be used. However, it is right that it should be as fit as possible in case it is. The Minister knows that we remain concerned about the possible intrusion of big money into the consideration of whether an MP should continue in Parliament. I hope that he is right and we are wrong in worrying about this. That apart, we have made the Bill a bit better than when it arrived in your Lordships’ House. I hope that it can now be moved on so it is an Act of Parliament very soon.
Lord Tyler
I wish to comment briefly on these amendments. Since the noble Lord, Lord Kennedy, signed them, I felt it was only right that he should be allowed to go first, but I endorse everything he said; these are useful improvements. When the Bill first came to your Lordships’ House there was a certain mood that somehow we should not be making improvements to it—not that it was incapable of improvement, but that somehow we should not be looking at such internal matters as those with which the Bill is concerned because they are so clearly matters that intimately affect the Commons collectively and individual MPs. I am delighted that through the whole of the debate, at all stages, that apparent lack of confidence in the role of your Lordships’ House has fallen away and we have had very serious, helpful and, I hope, positive discussions about how to improve this legislation.
It would be ironic if, simply because the Bill affected so intimately the self-interest of Members of the other place, somehow we felt we could not take any view on it, when as a Parliament we clearly have to take a view both about the reputation of Parliament as a whole and about the intricacy and effectiveness of individual proposed legislation. I share the concern of the noble Lord, Lord Kennedy, that it may well be that this turns out not to be entirely fit for purpose. Presumably, it will be tested when, or if, it is used, and that will be an obvious moment for us to review the situation, as my noble friend Lord Norton and I said in a previous debate. If we had accepted the view that because it was of such intricate, direct self-interest concern to Members of Parliament then somehow or other we had to withhold our views, that would surely have given credence to the idea that the form of your Lordships’ House could not be a matter of concern to the other House of Parliament, which would be patently ludicrous. I am pleased that in fact that situation fell by the wayside and no one has pressed that.
I share with the Minister and the noble Lord, Lord Kennedy, my thanks as an individual Member of your Lordships’ House to all those who have taken such trouble within the Government to try to make sure that we had the best possible opportunities to influence the way in which this legislation came before us. In particular, I thank my noble friends Lord Wallace and Lord Gardiner for the impeccable way in which they have treated us, giving us every appropriate opportunity to try to improve the Bill. It is slightly improved, but I suspect that some of the issues that we were dealing with earlier today will come back to haunt us before too long.
Lord Wallace of Saltaire
My Lords, perhaps I should add that it has been interesting that, in the best traditions of this House, the Divisions on the Bill have not been one party group against another but have often been within and across political party groups. That is how it should often be in this Chamber: it is part of a healthy debate.
I have been sitting here today wondering whether the colour of the coat of the noble Baroness, Lady Hayter, was intended to be a heavy hint at her preferred post-election coalition, but perhaps we can continue that discussion outside the Chamber. I conclude by thanking everyone for the lengthy amount of time that we have spent on the Bill. I commend the amendment.
Lord Wallace of Saltaire
“(2) Delivery under sub-paragraph (1) must be as soon as reasonably practicable after the officer receives the document in question.”
Lord Wallace of Saltaire
Lord Wallace of Saltaire
Counterterrorism Policy: Syria and Iraq
(9 years, 2 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, with the leave of the House, I will repeat a Statement made by my right honourable friend the Home Secretary in answer to an Urgent Question in the other place.
“Mr Speaker, as the Government have made clear repeatedly, the threat we face from terrorism is grave and it is growing. The House will appreciate that I cannot comment on operational matters and individual cases, but the threat level in the United Kingdom, which is set by the independent Joint Terrorism Analysis Centre, is at severe. This means that a terrorist attack is highly likely and could occur without warning.
The Government have consistently and emphatically advised against all travel to Syria and parts of Iraq. Anyone who travels to those areas is putting themselves in considerable danger, and the impact that such a decision can have on families and communities can be devastating.
The serious nature of the threat we face is exactly why the Government have been determined to act. We have protected the counterterrorism policing budget, up to and including 2015-16, and increased the budget for the security and intelligence agencies. In addition, we have provided an additional £130 million to strengthen counterterrorism capabilities and help to address the specific threat from ISIL.
We have taken significant steps to ensure that the police and security services have the powers and capabilities that they need. Last year, we acted swiftly to protect vital capabilities which allow the police and security services to investigate serious crime and terrorism, and to clarify the law in respect of interception for communications service providers.
This year, we have introduced the Counter-Terrorism and Security Act. This has provided the police with a power to seize a passport at the border temporarily, during which time they will be able to investigate the individual concerned—and I can confirm that this power has been used. The Act has created a temporary exclusion order that allows for the managed return to the UK of a British citizen suspected of involvement in terrorist activity abroad. It has strengthened the existing TPIM regime so that, among other measures, subjects can be made to relocate to another part of the country, and it has enhanced our border security for aviation, maritime and rail travel, with provisions relating to passenger data, no-fly lists, and security and screening measures.
Since its national rollout in April 2012, over 2,000 people have been referred to Channel, the Government’s programme for people vulnerable to being drawn into terrorism, many of whom might have gone on to be radicalised or to fight in Syria. The Counter-Terrorism and Security Act has now placed Channel on a statutory basis, and it has also placed our Prevent work on a statutory basis, which will mean that schools, colleges, universities, prisons, local government and the police will have the duty to have due regard to the need to prevent people from being drawn into terrorism. Already, since 2012, local Prevent projects have reached over 55,000 people and helped young people and community groups understand and challenge extremist narratives, including those of ISIL.
In addition to this work, and alongside the checks that we have already conducted on a significant number of passengers leaving the UK, we have committed to reintroducing exit checks, and arrangements to do so will be in place by April 2015. These will extend our ability to identify persons of interest from a security, criminal, immigration or customs perspective. As the Prime Minister stated last week, the Transport Secretary and I will be working with airlines to put proportionate arrangements in place to ensure that children who are at risk are properly identified and questioned.
The Government are taking robust action. But we have been clear that tackling the extremist threat we face is not just the job of the Government, the police and the security services. It needs everyone to play their part. It requires educational institutions, social media companies, communities, religious leaders and families to help protect vulnerable people from being drawn into radicalisation and to confront this poisonous ideology. If we are to defeat this appalling threat and ideology, we must all work together”.
Baroness Smith of Basildon (Lab)
My Lords, I am grateful to the Minister for repeating the answer to the shadow Home Secretary.
In our debates on the counterterrorism Bill, we referred on several occasions to the 600 or so British citizens who have travelled to Syria to join the conflict. Each of those 600 has somehow come into contact with extremists and been radicalised. When this Government came to power, they revoked the relocation orders that removed individuals from terrorist networks to disrupt those networks. They took that action against professional advice. Do the Government now accept that the removal of relocation orders made it harder to disrupt terrorist networks, particularly those in parts of London?
Given that the Government advice is not to travel to Syria, we all find it absolutely incredible that three 15 year-old schoolgirls were able to make that journey, taking over 30 hours, without any intervention. When were the authorities in Turkey notified? Was it really three days later and, if so, why did it take so long? What communications were there with the British embassy in Turkey and what action was taken by the embassy to try to locate the young girls? Did anyone think of just checking the bus station? What measures are now being put in place to prevent this happening again?
Lord Bates
My Lords, the noble Baroness asked about the control orders. She will be aware that they related to a different time. The threat which has come from people travelling to Syria has gathered pace over the past couple of years. The threat level has increased. There was also concern, which we discussed at length during the passage of the counterterrorism Bill, about the orders being whittled away by the courts. We felt that we needed to introduce a new measure, the TPIM, which is more effective and has a higher threshold. That has been more effective in the location element. On the noble Baroness’s point about the removal of the orders being against professional advice, the Home Secretary discussed the proposal with the authorities before the decision was taken. They accepted it at that point, just as they are now recommending that the measure is reintroduced given the renewed threat that we have faced.
I know that the issue of how on earth this could happen with the three young girls has caused immense distress to everyone. It is the subject of an ongoing investigation. The account of the series of events that is coming from the authorities in Istanbul is vigorously challenged by the Metropolitan Police. It informed the Turkish embassy on the very day that it was alerted to the children having gone missing. However, rather than my going further on that, I would be grateful if the noble Baroness could bear with me in allowing the investigation currently under way to take its course.
Baroness Hamwee (LD)
My Lords, apart from physical measures, does my noble friend agree that it is fundamentally important to understand the motivation of young people who are drawn to fight in Syria and to disseminate a counter-narrative to the persuasion to which so many of them seem to be subject?
Lord Bates
Absolutely, and that is the vital role of Prevent and Channel. I think it is also vital to engage all communities through putting that on a statutory footing and to engage the religious communities. I am pleased that my noble friend Lord Ahmad is beside me; he is engaging particularly with Muslim communities which are as appalled as we are at what is happening, so-called in the name of their faith, which they have absolutely nothing to do with. We get that message and we want to communicate it to as many people as possible.
Baroness Howarth of Breckland (CB)
I welcome the Channel and Prevent programmes. Can the Minister tell us what assessment has been made of their success? They are very new and are crucial to change. Do we have inspections? Is Ofsted equipped to inspect such a programme? It is the key to ensuring that our children are safe., and I would be grateful to know whether any of that has been undertaken.
Lord Bates
Prevent is subject to the Prevent co-ordinators in local areas. The regional higher education Prevent co-ordinators are run out of BIS. They are in charge of overseeing the quality when it comes to universities. There is talk in the consultation document of a possible role for an outside body to inspect their effectiveness, such as the Higher Education Funding Council, but at the moment it rests with those organisations in the 30 key priority areas for Prevent.
The Lord Bishop of Norwich
My Lords, while I am entirely sympathetic to the Government’s intentions, does the Minister recognise that some individuals may wish to go to Iraq and Syria to oppose rather than support Islamic State? I am sure your Lordships will be aware of last week’s tragic and comprehensive destruction of the museum in Mosul. That cultural vandalism was accompanied by the abduction of 220 Assyrian Christians, with the intention of obliterating Christianity and the memory of it. It is already reported that some people have travelled to the conflict zone to defend Christians. What is the Minister’s advice for those living in the United Kingdom with family in the area who may be tempted to travel to fight for their protection?
Lord Bates
The right reverend Prelate raises a very serious and sensitive point. I would say very carefully that whatever your perspective on the crisis in Syria, our recommendation is that you do not travel. There are other international agencies which are doing incredible work in trying to bring peace and protect individuals and particular groups in that area. We should give them our full support without adding further to the difficulties by introducing independent people into that very complex and dangerous theatre of terrorism.
Lord Deben (Con)
Does my noble friend accept that there are many people who are caused great pain by some of the comments made in the newspapers, particularly those who have been responsible for the education of some of these young people? Perhaps he heard the headmistress of the school which one famous character attended. Will the Minister do all he can to stop people pointing the finger at those who have done a job, tried to do it as well as possible and are now left in this awful position of being blamed for something that has nothing to do with them and that they could not have prevented?
Lord Bates
My noble friend is absolutely right. I am sure that whenever we see a horrific crime committed by an individual, every head teacher wonders if they could have done more. That is in the nature of the educational professionals that we have.
I am afraid that there are some people who have that sadistic, vile, criminal bent within them. That reinforces the fact that what we are talking about here is not any ideological or religious struggle. It is pure and simple criminality—and in the case of that particular individual, murderous criminality. It is a tragedy for the family and people who know them, but we should not blame ourselves for what an individual had responsibility for and should have controlled himself.
Lord Robertson of Port Ellen (Lab)
Does the Minister agree that there is something absurd about the security services being blamed in any way for what has happened where people may or may not have gone to Syria to fight for ISIL? Instead of criticising the security services, which have a huge job not only in detecting or identifying people who might be involved in this kind of terrorism but all other kinds of terrorism at the moment, we should be giving full support to them. Is it not completely unrealistic to think that everybody who is followed or identified by the security services should somehow be locked up? There is no prison system yet invented that would be capable of identifying and imprisoning all those who might conceivably in the future be guilty of some terrorist act.
Lord Bates
The noble Lord is absolutely right that when it comes to this, we should pay tribute to the security services for the immense work which they have done. Since 2010, 750 people have been arrested for terrorist-related offences, 210 have been charged and 140 have been successfully prosecuted. It is in the nature of these things that we focus on the one or two who got away rather than the many that the security services have detected.
Serious Crime Bill [HL]
(9 years, 2 months ago)
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Lord Bates
That this House do agree with the Commons in their Amendments 1 and 2.
“Exemption from civil liability for money-laundering disclosures
In section 338 of the Proceeds of Crime Act 2002 (money laundering: authorised disclosures), after subsection (4) insert—
“(4A) Where an authorised disclosure is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by or on whose behalf it is made.””
“( ) An application to a sheriff for an order under section 59, 60, 62 or 63 must be made by summary application.”
The Parliamentary Under-Secretary of State, Home Office (Lord Bates)
My Lords, I shall also speak to Commons Amendments 24, 25, 35, 36 and 37. This first group of Commons amendments principally makes two further changes to the Proceeds of Crime Act 2002.
Part 7 of the Proceeds of Crime Act places obligations on the “regulated sector”, such as banks and accountants, to submit suspicious activity reports to the National Crime Agency, where the reporter has suspicions that a transaction might be linked to money-laundering or the financing of terrorism. This part of the Proceeds of Crime Act provides for a category of suspicious activity reports, called consent SARs. Where there are reasonable grounds to suspect that a transaction might be related to money-laundering, the reporter may seek the consent of the National Crime Agency to proceed with the transaction to avail themselves of some defence against a money-laundering charge. Some 14,000 consent SARs are submitted each year.
The National Crime Agency has seven working days to respond to a consent SAR. If consent is refused, the National Crime Agency has a further 31 calendar days to investigate the transaction. While the reporter awaits the NCA’s decision on consent, the activity or transaction must not proceed. The process can therefore unavoidably hold up the financial transaction in question. The consequences for a customer whose request or transaction is so delayed may go beyond mere inconvenience and lead to financial loss. A customer who has suffered such loss may seek to take legal action against a bank or other institution to recover any losses or otherwise to make a claim for damages. While the Government recognise the concerns of customers, we believe that where an institution has suspicions regarding the transaction and reports those to law enforcement authorities in good faith, as the law requires it to do, that institution should not be liable for civil claims for damages.
The UK is obliged, under Article 26 of the EU’s third anti money-laundering directive, to provide protection to those who report suspicions of money-laundering in good faith from incurring civil liability for doing so. The common law currently affords such protection through the Court of Appeal ruling in the case of Shah, which held that while customers can require institutions to prove that the suspicion that gave rise to the SAR was reasonable, provided the suspicion is so proved, the institution cannot be held liable for loss suffered by the customer as a consequence of the institution’s failure to carry out promptly the customer’s instructions.
We believe that placing this civil immunity on a statutory footing will provide for greater legal certainty. Commons Amendment 1 is directed to that end. That immunity from civil proceedings will apply only where a suspicious activity report is submitted in good faith, and those in the regulated sector responsible for submitting such reports will continue to be liable for any negligent or malicious conduct. We will work with the National Crime Agency and the Financial Conduct Authority to ensure that the change to the law does not lead to an abuse of the process. We believe that this amendment to the Proceeds of Crime Act will strengthen the partnerships we have built with the regulated sector and will increase the regulated sector’s trust and confidence in the SAR regime.
Commons Amendments 35 to 37 give effect to a recommendation made by the Joint Committee on Human Rights in its report on the Bill. The Commons amendments would in turn amend the Proceeds of Crime Act to give statutory force to the 2012 Supreme Court judgment in the case of Waya. The Supreme Court ruling and these amendments relate to the making of a confiscation order following a criminal conviction. If the prosecutor applies to the Crown Court for a confiscation order, the court has to consider making such an order—it has no discretion. In its consideration, the Crown Court sets a value for payment on the confiscation order at what is termed as the “recoverable amount”.
The Supreme Court ruled in the case of Waya that the duty on the Crown Court to make a confiscation order should be qualified so that it did not apply where such an order would be contrary to the defendant’s right to the peaceful enjoyment of his or her property, as enshrined in Article 1 of Protocol 1 to the European Convention on Human Rights. I stress that that does not mean that a confiscation order should not be made in such cases. The Supreme Court was saying that the amount for which a confiscation order is made must be proportionate in light of the circumstances of a case. It is possible that a court may decide not to make a confiscation order, but we believe that that would be highly unlikely. The Crown Court would most likely decide to set an amount to pay at less than the full recoverable amount.
The current situation is, of course, that the Crown Court is bound by the judgment of the Supreme Court as the superior court. The Crown Court should be, and is, already applying the findings in Waya to confiscation cases before it. However, we wish to make the obligation on the Crown Court explicit and ensure its consistent application. As I have said, that accords with the conclusion of the Joint Committee on Human Rights, which said that,
“the Bill provides an opportunity to bring greater legal certainty to the legal regime governing the proceeds of crime by inserting into the statutory framework express language which would give clear effect to the judgment of the Supreme Court in Waya”.
Commons Amendments 24 and 25 make consequential amendments to the commencement clause.
Finally, Commons Amendment 2 makes a technical change to Part 4 of the Bill, which provides for the seizure and forfeiture of substances used as drug-cutting agents. Clauses 59, 60, 62 and 63 provide for applications in respect of various matters—for example, the continued retention of suspected drug-cutting agents—to be made to the appropriate court. In Scotland, such applications will be made to the sheriff. Commons Amendment 2 provides that in Scotland those applications must be made by way of summary application, as distinct from other forms of application, such as an initial writ or small claim. I beg to move.
Lord Bates
That this House do agree with the Commons in their Amendments 3 and 4.
“Sexual communication with a child
After section 15 of the Sexual Offences Act 2003 insert—
“15A Sexual communication with a child
(1) A person aged 18 or over (A) commits an offence if—
(a) for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),
(b) the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and
(c) B is under 16 and A does not reasonably believe that B is 16 or over.
(2) For the purposes of this section, a communication is sexual if— (a) any part of it relates to sexual activity, or
(b) a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual;
and in paragraph (a) “sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider to be sexual.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.””
“Child sexual exploitation
(1) The Sexual Offences Act 2003 is amended as set out in subsections (2) to (6). (2) For the heading before section 47 substitute “Sexual exploitation of children”.
(3) In section 48 (headed “Causing or inciting child prostitution or pornography”)—
(a) in the heading, for “child prostitution or pornography” substitute “sexual exploitation of a child”;
(b) in subsection (1)(a), for “to become a prostitute, or to be involved in pornography,” substitute “to be sexually exploited”.
(4) In section 49 (headed “Controlling a child prostitute or a child involved in pornography”)—
(a) in the heading, for “prostitute or a child involved in pornography” substitute “in relation to sexual exploitation”;
(b) in subsection (1)(a), for “prostitution or involvement in pornography” substitute “sexual exploitation”.
(5) In section 50 (headed “Arranging or facilitating child prostitution or pornography”)—
(a) in the heading, for “child prostitution or pornography” substitute
“sexual exploitation of a child”;
(b) in subsection (1)(a), for “prostitution or involvement in pornography” substitute “sexual exploitation”.
(6) In section 51 (interpretation of sections 48 to 50)— (a) omit subsection (1);
(b) for subsection (2) substitute—
“(2) For the purposes of sections 48 to 50, a person (B) is sexually exploited if—
(a) on at least one occasion and whether or not compelled to do so, B offers or provides sexual services to another person in return for payment or a promise of payment to B or a third person, or
(b) an indecent image of B is recorded;
and “sexual exploitation” is to be interpreted accordingly.”
(7) In section 1 of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution), in subsection (1), after “person” insert “aged 18 or over”.”
Lord Bates
My Lords, I shall also speak to Commons Amendments 13, 15, 19, 33, 38, 40 to 48 and 52. Commons Amendment 3 responds to an amendment tabled by the noble Lord, Lord Harris of Haringey, on Report and again at Third Reading. As the House will recall, the noble Lord and the NSPCC were concerned that there might be a gap in the law whereby an adult could communicate with a child for a sexual purpose without fear of prosecution. We responded by bringing forward a new offence to deal specifically with those concerns. I pay tribute to the work of the noble Lord, Lord Harris of Haringey, in working with the NSPCC to bring forward these changes, which we recognise as being important amendments to the Bill.
The new clause inserted by Commons Amendment 3 therefore creates a new offence which criminalises a person aged 18 or over who communicates with a child under 16, who the adult does not reasonably believe to be 16 or over, if the communication is sexual or if it is intended to elicit from the child a communication which is sexual. The offence will be committed whether or not the child communicates with the adult.
The offence will apply only where the defendant can be shown to have acted for the purposes of obtaining sexual gratification. Ordinary social or educational inter- actions between children and adults or communications between young people themselves will not be caught by the offence, and it is certainly not our intention to discourage the discussion of sexual matters in the context of such everyday relationships. The offence, which will apply equally online and offline, will be subject to a two-year maximum prison sentence. The new offence will extend to England and Wales.
Commons Amendments 15, 19, 41, 44 and 47 are consequential on Amendment 3. Importantly, Commons Amendment 43 provides that the new offence will automatically attract the notification requirements for registered sex offenders under the Sexual Offences Act 2003. The Police and the Crown Prosecution Service have welcomed the new offence and agree that it will help to ensure that young people are fully protected by the law and will allow the authorities to intervene earlier to prevent more serious forms of offending—for example, sexual grooming and contact offending—against children. The NSPCC has also strongly welcomed the new offence.
Commons Amendment 4 seeks to update the language used to describe child sexual exploitation offences in Sections 48 to 51 of the Sexual Offences Act 2003. In Committee in the Commons, Ann Coffey MP made a compelling case to remove from the statute book references to child prostitution and to limit the scope of the offence of loitering or soliciting for the purposes of prostitution so that it applies only to adults. Commons Amendment 4 gives effect to these changes.
This Government are clear that children who are sexually exploited, whether for financial gain or other reasons, should not be referred to as prostitutes and should be recognised as victims. The Government agree that such language is outdated and anachronistic. This Government believe that it is extremely important to convey the right messages about the treatment of children and young people who may be exploited or are at risk of exploitation. It is vital that any legislation relating to prostitution should recognise that children who have been subjected to sexual abuse or exploitation are, first and foremost, victims. They should not be stigmatised by legislation which treats them as perpetrators of crime or prostitutes.
This is also an opportunity to remove statutory references to child pornography where they exist and where, for similar reasons, children should always be seen as victims. Subsections (1) to (6) in Commons Amendment 4 make the necessary amendments to the 2003 Act. Commons Amendments 38, 42, 45 to 48 and 52 make the necessary consequential amendments to other enactments.
In addition to amendments to the Sexual Offences Act 2003, the Government are also of the view that we should, in the same spirit, amend Section 1 of the Street Offences Act 1959 so that the offence of loitering or soliciting for the purposes of prostitution would apply only to adults. This is the effect of subsection (7) in Commons Amendment 4 and the associated consequential Amendment 33. Unlike the amendments to the 2003 Act, an amendment to Section 1 of the 1959 Act would have a material impact in terms of criminality and enforcement. It would, in effect, decriminalise under-18s selling sex in the street. When considering this change it must be noted that, in practice, children and young persons under 18 are rarely arrested for loitering or soliciting. The Government consulted with the police on the impact of this amendment on their ability to protect children from sexual exploitation, and they welcomed the change. I am clear that this change is fully in keeping with the Government’s approach of treating children as victims, and preventing any suggestion that they may be complicit in their sexual abuse or exploitation.
I hope that the House will welcome the proposed changes in Commons Amendment 4. By introducing these changes we will make further strides in permanently shifting attitudes towards victims of child sexual abuse and exploitation. I commend these amendments to the House.
Baroness Smith of Basildon (Lab)
My Lords, I thank the Minister for his explanation of these amendments. It is helpful and we certainly welcome them. I am also grateful to him for recognising the persistence of my noble friend Lord Harris of Haringey on this matter. When he first raised the issue the Government were initially reluctant to take it on board not because they were not supportive of what he was trying to do, which was to think differently around these issues with the child as a victim. Even though the child might be engaged in sending sexually explicit messages or photographs, the child was still the victim. I referred at the time to a case that I was aware of whereby an older man was pretending to be a 14 year- old girl in order to get a real 14 year-old girl to send messages and photographs of herself quite willingly. But she was clearly a victim and was being exploited. We are grateful to my noble friend for his persistence and to the Government for taking this issue on board.
We also welcome the change in the language of the legislation by removing references to child prostitution and child pornography. Both are child abuse. Children cannot agree to be prostitutes. If money is changing hands, it is because they are victims. This shows how thinking has moved on. The noble Lord may not recall but, during the debates on the Anti-social Behaviour, Crime and Policing Bill, I proposed amendments brought to me by the Police and Crime Commissioner for Greater Manchester, Tony Lloyd, about being able to close down premises being used for child grooming. The response from the Government Minister at that time, Norman Baker, was that the prostitution laws should be used. However, of course, those laws could not be used because the children were not prostitutes. Even though they may have been receiving some kind of payment at the time, it was clear that they were victims.
The only concern I would raise is on the language in subsection (2) of the new clause proposed in Amendment 4. Perhaps further progress is to be made. In the other place we proposed amending the reference to,
“offers or provides sexual services to another person in return for payment or a promise of payment”.
That talked in the old-fashioned language and we tried to move on by including,
“prepares to engage in, or engages in, sexual activity with”,
rather than “provides … for payment”. However, welcome as that change would have been, it does not detract from the fact that the Government are ensuring that that is an offence and recognise it as exploitation and abuse.
We welcome these amendments, which are a step forward. I know that my noble friend Lord Harris would join us in welcoming the support from the Government for his proposals.
Baroness Howarth of Breckland (CB)
My Lords, I briefly want to say that this is a real sea-change in attitude. I am delighted to hear the Opposition Front Bench because I have, in the past, argued with Ministers on other Benches who could not see the point of changing the word “prostitution” because they said that a crime was still being committed. Everyone now has understood that the language changes the attitude to the child and we are now really seeing children as victims. I am enormously grateful for this sea-change. It will change the way in which young people and children are dealt with. We know that the police have had a huge change in attitude in the way in which they work with these young people. The All-Party Parliamentary Group for Children, which looked at working with the police, heard from them on numerous occasions how helpful it would be if we perceived children as victims and no longer as perpetrators of crimes in this sexual area. I am immensely grateful to the Government for this work.
Lord Berkeley of Knighton (CB)
My Lords, I welcome the Government’s move in this direction whereby children are regarded as victims. We all know that a 14 year-old can be manipulative, but the important point about these amendments is that they put the onus on the adult not to transgress. In other words, they must make sure that they are not committing a crime and I am sure that this is what the Government wish to see. Putting the onus on to adults who get into correspondence with children is an extremely good move.
Lord Bates
My Lords, I am very grateful for the contributions made in this short debate, particularly those made by the noble Baroness, Lady Smith. She is right about what is happening here. In some ways, the language needs to catch up with the change in attitudes in society, as was said by the noble Baroness, Lady Howarth. We need to do that catching up, but the law also needs to catch up with the technology, as was pointed out by the noble Baroness. We talk about this applying equally online and offline, because sadly we know that more often than not the engagements of these communications have been in an online community, where the perpetrator is not visible. It is therefore absolutely right, as was said by the noble Lord, Lord Berkeley, that we should ensure that responsibility rests with the person who is making that initial contact.
The noble Baroness, Lady Smith, questioned the use of the term,
“offers or provides sexual services”,
in Commons Amendment 4. I have some sympathy with the comments she made, but in amending the Sexual Offences Act we sought to avoid changing the ambit of the relevant offences. The existing wording achieves this objective. I should stress that the wording,
“offers or provides sexual services”,
is used to define the term “sexually exploited” and should be read in that context. With those reassurances, and appreciative of that welcome, I beg to move.
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendments 5 and 6.
“Duty to notify police of female genital mutilation
After section 5A of the Female Genital Mutilation Act 2003 (inserted by section 70 above) insert—
“5B Duty to notify police of female genital mutilation
(1) A person who works in a regulated profession in England and Wales must make a notification under this section (an “FGM notification”) if, in the course of his or her work in the profession, the person discovers that an act of female genital mutilation appears to have been carried out on a girl who is aged under 18.
(2) For the purposes of this section—
(a) a person works in a “regulated profession” if the person is— (i) a healthcare professional,
(ii) a teacher, or
(iii) a social care worker in Wales;
(b) a person “discovers” that an act of female genital mutilation appears to have been carried out on a girl in either of the following two cases.
(3) The first case is where the girl informs the person that an act of female genital mutilation (however described) has been carried out on her.
(4) The second case is where—
(a) the person observes physical signs on the girl appearing to show that an act of female genital mutilation has been carried out on her, and
(b) the person has no reason to believe that the act was, or was part of, a surgical operation within section 1(2)(a) or (b).
(5) An FGM notification—
(a) is to be made to the chief officer of police for the area in which the girl resides;
(b) must identify the girl and explain why the notification is made;
(c) must be made before the end of one month from the time when the person making the notification first discovers that an act of female genital mutilation appears to have been carried out on the girl;
(d) may be made orally or in writing.
(6) The duty of a person working in a particular regulated profession to make an FGM notification does not apply if the person has reason to believe that another person working in that profession has previously made an FGM notification in connection with the same act of female genital mutilation.
For this purpose, all persons falling within subsection (2)(a)(i) are to be treated as working in the same regulated profession.
(7) A disclosure made in an FGM notification does not breach—
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information.
(8) The Secretary of State may by regulations amend this section for the purpose of adding, removing or otherwise altering the descriptions of persons regarded as working in a “regulated profession” for the purposes of this section.
(9) The power to make regulations under this section— (a) is exercisable by statutory instrument;
(b) includes power to make consequential, transitional, transitory or saving provision.
(10) A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(11) In this section—
“act of female genital mutilation” means an act of a kind mentioned in section 1(1);
“healthcare professional” means a person registered with any of the regulatory bodies mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 (bodies within remit of the Professional Standards Authority for Health and Social Care);
“registered”, in relation to a regulatory body, means registered in a register that the body maintains by virtue of any enactment;
“social care worker” means a person registered in a register maintained by the Care Council for Wales under section 56 of the Care Standards Act 2000;
“teacher” means—
(a) in relation to England, a person within section
141A(1) of the Education Act 2002 (persons employed or engaged to carry out teaching work at schools and other institutions in England);
(b) in relation to Wales, a person who falls within a category listed in the table in paragraph 1 of Schedule 2 to the Education (Wales) Act 2014 (anaw
5) (categories of registration for purposes of Part 2 of that Act) or any other person employed or engaged as a teacher at a school (within the meaning of the Education Act 1996) in Wales.
(12) For the purposes of the definition of “healthcare professional”, the following provisions of section 25 of the National Health Service Reform and Health Care Professions Act 2002 are to be ignored—
(a) paragraph (g) of subsection (3); (b) subsection (3A).””
“Guidance about female genital mutilation
(1) After section 5B of the Female Genital Mutilation Act 2003 (inserted by section (Duty to notify police of female genital mutilation) above) insert—
“5C Guidance
(1) The Secretary of State may issue guidance to whatever persons in England and Wales the Secretary of State considers appropriate about—
(a) the effect of any provision of this Act, or
(b) other matters relating to female genital mutilation.
(2) A person exercising public functions to whom guidance is given under this section must have regard to it in the exercise of those functions.
(3) Nothing in this section permits the Secretary of State to give guidance to any court or tribunal.
(4) Before issuing guidance under this section the Secretary of State must consult—
(a) the Welsh Ministers so far as the guidance is to a body exercising devolved Welsh functions;
(b) any person whom the Secretary of State considers appropriate.
(5) A body is exercising “devolved Welsh functions” if its functions are exercisable only in or as regards Wales and are wholly or mainly functions relating to—
(a) a matter in respect of which functions are exercisable by the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Government, or
(b) a matter within the legislative competence of the National Assembly for Wales.
(6) The Secretary of State may from time to time revise any guidance issued under this section.
(7) Subsections (2) and (3) have effect in relation to any revised guidance.
(8) Subsection (4) has effect in relation to any revised guidance unless the Secretary of State considers the proposed revisions of the guidance are insubstantial.
(9) The Secretary of State must publish the current version of any guidance issued under this section.”
(2) Consultation for the purposes of subsection (4) of section 5C of the Female Genital Mutilation Act 2003 (inserted by subsection (1) above) may be, or include, consultation before the coming into force of this section.”
Baroness Williams of Trafford (Con)
My Lords, in moving this Motion, I will speak also to Commons Amendments 20, 39 and 49 to 51. Commons Amendment 5 introduces a new mandatory duty for health and social care professionals and teachers in England and Wales to report cases of female genital mutilation to the police. The Government are clear that FGM is an extremely harmful crime. It is child abuse and can cause extreme and lifelong physical and psychological suffering to women and girls. We have taken a number of steps to put a stop to FGM, including a communications campaign to raise awareness of FGM, a suite of resources for front-line professionals and communities, the launch of the Government’s FGM unit and, of course, the various measures to strengthen the law included in the Bill.
Those in safeguarding professions are of course key to helping to achieve this. There is a striking disparity between what we know about the likely prevalence of FGM and the number of cases referred to the police. We believe that introducing a mandatory reporting duty will both ensure that professionals’ responsibilities in this area are clear and also increase referrals to the police.
The consultation on how best to introduce a new mandatory reporting duty closed on 12 January and we published the Government’s response on 12 February. The proposed duty takes into account the feedback we received from a wide range of respondents, including healthcare professionals, education professionals, community groups and members of the public. The duty will apply to all regulated health and social care professionals and teachers in England and Wales in respect of cases of FGM which either are disclosed to them by the victim and/or are visually confirmed. The duty will be limited to victims aged under 18 at the time the case is identified.
We recognise that some individuals working within these professions may be less likely to encounter cases of FGM and visual evidence in particular. We are clear that introducing this duty does not mean that there will be a new requirement for professionals proactively to look for cases or evidence; they will be expected to report only known cases which they encounter in the course of their usual professional duties. Furthermore, the position in terms of suspected or at risk cases will remain the same. We expect professionals to refer such cases appropriately, as set out in the multiagency guidelines on FGM, using the existing safeguarding framework and procedures. Likewise, the introduction of this duty will not mean that non-regulated practitioners no longer have a responsibility to report cases of FGM, known or otherwise. We will ensure that there is appropriate guidance explicitly to capture good safeguarding practice for such practitioners.
Where professionals become aware of cases, the duty will require them to make a report to the police within one month. As we will make clear in the guidance, this is a maximum timeframe. We expect the majority of reports to be made within shorter timescales. The one-month timeframe allows for exceptional cases where, for example, a professional has serious concerns that a report to the police may result in an immediate safeguarding risk to the child and therefore consultation with colleagues or other agencies prior to reporting is essential.
As highlighted by some consultation respondents, cases will have safeguarding and criminal elements, which must be considered in tandem. FGM is a criminal offence and we therefore believe that it is right for reports to be made directly to the police. We recognise that there may be concerns about this approach and that some are of the view that reports should instead be made to social care. However, we are clear that when a report is made, it will not necessarily result in immediate arrests or court action. The police will work with the relevant agencies to determine the most appropriate response.
In preparing to introduce the duty, we will work closely with the police to put in place a clear system that supports an effective multiagency response. In addition, through the new FGM unit, we will work with local communities and professionals to explain the duty and its primary focus on safeguarding girls and women to help manage any anxieties or concerns which could prevent communities from engaging with vital services. Where a professional fails to comply with the duty, this will be dealt with in line with existing disciplinary frameworks, which may include referral to the relevant professional regulator or the Disclosure and Barring Service. This approach will ensure that the sanctions imposed reflect the specifics of the individual case and it takes into account the views of the majority of consultation respondents. We will work closely with the bodies responsible for sanctions to ensure that due regard is given to the seriousness of breaches of the duty.
In addition to the duty, Commons Amendment 6 confers on the Secretary of State a power to issue statutory guidance on FGM and requires relevant individuals to have regard to it. This will take the form of multiagency guidance for front-line professionals, which will help ensure a more effective response to FGM, support improvements to multidisciplinary working, and promote effective implementation of the new mandatory reporting duty. The guidance will sit alongside existing guidance and legislation on safeguarding, which will remain unchanged and which are, of course, critical to preventing FGM. Commons Amendments 20 and 39 provide that the new reporting duty and statutory guidance will apply to England and Wales only.
Noble Lords will recall that on Report in this House the Bill was amended to provide for FGM protection orders for the purposes of protecting a girl against the commission of a genital mutilation offence or protecting a girl against whom such an offence had been committed. Commons Amendments 25 and 26 are essentially consequential to provide for legal aid to be made payable in FGM protection order proceedings.
Amendment 25 amends Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to provide that civil legal aid may be made available for the making, varying, discharging and appealing of FGM protection orders. The civil legal services available will be subject to the exclusions set out in Parts 2 and 3 of Schedule 1 to LASPO. Part 2 of Schedule 1 makes clear that certain types of legal aid services are not available; for example, those relating to a claim in tort in respect of negligence even when they might otherwise fall within the descriptions of legal services under Part 1.
Part 3 of Schedule 1 provides that the civil legal services listed in Part 1 of Schedule 1 do not generally include advocacy, but this is subject to exceptions. Advocacy in the relevant civil courts, including the family court, is already caught by these exceptions. However, Amendment 26 ensures that advocacy in proceedings to vary or discharge FGM protection orders in the Crown Court and the magistrates’ court is also included within the exceptions so that legal aid for advocacy will be available in such cases.
The Government consider that an amendment to the scope of the civil legal aid scheme in England and Wales is appropriate in these circumstances because of the important nature of these anticipated proceedings. Amendment 24, which is also in this group, is a minor drafting amendment. I know this issue was raised by the noble Baroness, Lady Smith of Basildon, at Third Reading so I trust that these amendments will be welcome to the Opposition and indeed to my noble friends.
Baroness Smith of Basildon
Before the Minister sits down, could she clarify something about the amendment numbers? She referred to Amendments 24 and 25, neither of which is in this group: they were consequential amendments in group 1. The issue of FGM protection orders attracting civil legal aid seems to be covered by Amendments 50 and 51. According to the amendment list, government Amendment 24 is in group 1 and government Amendment 25 is in group 8.
Baroness Smith of Basildon
So are we discussing those amendments now? Have they been wrongly grouped? Or are the amendment numbers that the noble Baroness has incorrect? Are we, in fact, discussing Amendments 50 and 51 rather than Amendments 24 and 25?
Baroness Williams of Trafford
My Lords, I apologise to the House. Let me clarify the fact that we are debating Amendments 50 and 51.
Lord Patel (CB)
My Lords, I shall speak to Amendments 5 and 6 in particular. Before I start, let me say that I absolutely agree with the Minister that female genital mutilation—FGM—is a horrible procedure, and it is right to criminalise it, with the severest of penalties for anybody involved. I have seen many adolescent girls and young women whose subsequent health has been affected by female genital mutilation—occasionally resulting in death during childbirth, but much more often in the horrible condition known as obstetric fistula, which I have seen in Africa. I am therefore totally committed to making sure that this horrible procedure is made illegal and removed.
During the passage of the Bill through the Commons, the Government introduced an amendment to make it a duty for regulated healthcare professionals to notify police of female genital mutilation, and the amendment was accepted there. Like the professional organisations—particularly the regulators of the medical profession, the General Medical Council and the British Medical Association, and some of the colleges, particularly the Royal College of Paediatrics and Child Health—I am concerned about that amendment.
Our concern is about the proposed duty to report FGM in all known cases in girls and young women under 18. That duty will be a significant step change in the law. I am not aware of any other circumstances in which healthcare professionals are required to refer patients to the police without any regard to the potential impact on the patient. That is what concerns me—the potential impact on the patients, particularly young girls under 18, including 16 to 18 year-olds.
Doctors are required to make the care of patients their first concern, but of course they have to balance that duty against wider public interest considerations. There are clear circumstances in which they should disclose information to an appropriate agency. For example, it might be necessary to protect a specific person or people, or the public more broadly, from a risk of death or serious harm, or to assist in the investigation or prosecution of a crime. The General Medical Council guidelines in Protecting Children and Young People: The Responsibilities of All Doctors make that absolutely clear.
The proposed duty, however, allows no scope to consider the best interests of the child or young person. In effect, the duty mandates that the wider public interest in investigating whether or not a crime has been committed would always outweigh the girls’ rights and interests, including those of the individual child or young person. It is difficult to see how that satisfies the proportionality argument or requirement of Article 8 of the European Convention on Human Rights. It also means that doctors will sometimes be obliged—I agree, in rare circumstances—to act against what are considered to be the best interests of the patient. That is in conflict with the primary duty of doctors.
The Royal College of Paediatrics and Child Health also found that,
“there is no credible or conclusive evidence that ... mandatory reporting … better protects children at risk of harm, and its introduction would undermine that cultural approach of risk and responsibility sharing that has been developed in the current system. Mandatory reporting still raises more questions than it provides answers”.
In response to the Government’s consultation, the professions argued that any duty to report FGM should include a “reasonable excuse” for not reporting if it would be contrary to the best interests of the child or young person to do so. Further consideration needs to be given to the position of young women between the ages of 16 and 18. There is no clear line between childhood and adulthood. While under-18s have a different status in law, at 16 it is presumed that young people have the ability to make a whole range of decisions, including about their own care. Discussions about the treatment and care of a 17 year-old may be indistinguishable from those relating to an adult. Particular risk may arise in the context of maternity care, and here I have a particular concern. A young woman may not present to healthcare services if she fears it will result in a referral to the police. Young women who have undergone female genital mutilation as children will be at increased risk during maternity care and childbirth. They require particular and extra care during labour. That duty would undermine the provision of care that might be given to them.
There are many positive aspects to the Bill which I absolutely support. It makes a real difference to the lives of children and young women. This particular duty goes counter to that and I wish there was a phrase saying that in some circumstances there might be a need to protect children and young women. If we cannot change this today, I hope that at least there will be a commitment on the Minister’s part to make sure that the guidance will reflect our concern.
Baroness Walmsley (LD)
I wish to speak to Amendments 5 and 6 and hope that, in the further consultation on the guidance, the Government will be able to address the concerns raised by the noble Lord, Lord Patel. I have a question for my noble friend the Minister. There is nothing in the amendment about sanctions for not fulfilling this very serious duty to report a very serious crime, but the letter from the noble Lord, Lord Bates, referred to the fact that the sanctions would be professional and employment sanctions. I wonder whether my noble friend can clarify what that means and say why the Government feel that such sanctions to this new duty would be any more effective than the professional sanctions that already exist within professional associations for the sort of misconduct that we are talking about. To ignore knowledge of such a serious crime is not the sort of thing we would expect of a professional. Some of us feel that overlooking such a serious crime must require a more serious sanction than just leaving it to the professional associations to deal with.
Baroness Howe of Idlicote (CB)
My Lords, Amendment 5 after Clause 70 is clearly a well intentioned measure, but I am concerned that if mandatory reporting of FGM is implemented in isolation it could have unintended consequences. Like my noble friend Lord Patel I am worried, in particular, that professionals will have no discretion and will be obliged to report, even when it may not be in the best interests of the child. The evidence from other countries where mandatory reporting of child abuse in general has been introduced suggests that there could be similar unintended consequences if a duty was introduced for FGM. Most notably: women and girls could be discouraged from seeing healthcare professionals because of concerns about catapulting themselves or friends and family into criminal investigations; professionals may seek to avoid discussions that could lead to disclosure if they are fearful of the consequences; and individuals would be likely to report on any occasion when they come into contact with a girl who they believe has undergone FGM, resulting in a girl being visited by police or social workers on multiple occasions in the short space of time before they are 18, which could be a fairly traumatising experience.
Will the noble Baroness please clarify what would happen in instances where the duty to notify police of FGM is not in the best interests of the child? Surely it is vital that the guidance on this piece of legislation is fully and carefully considered, and that experts who deal with these cases are fully involved. Can she also clarify the intentions for the guidance on how this duty will be implemented, and confirm whether this guidance will be subject to full consultation?
Baroness Meacher (CB)
My Lords, I add a few words of strong support to those of my noble friends Lord Patel and Lady Howe. It seems that this is trying to deal with the problem after the horse has bolted. As the Minister knows, we argued at length earlier in discussions on the Bill about the need to tackle this matter at source, where these ideas are being pressed—by the leaders and religious leaders of some communities who believe that this is necessary to save you from hell and such matters. To go down this road will be quite dangerous, because there will be an inclination by families and communities to hide these children from view. Not only may they not seek medical attention—that would be incredibly serious, as my noble friend Lord Patel has said—these girls and women need extra healthcare and may get none at all if they are hidden away. But you can also imagine that these children may be hidden away from “ordinary” English schools, because teachers may come to know about what has happened, and these families and communities will be under more pressure to set up separate schools, not integrating with our society. That would be absolutely retrograde to encourage in some way.
Obviously this is an unintended consequence. I am sure the Government’s motives are utterly right and pure, but these things can have the most devastating unintended consequences, and one can just imagine the greater isolation, being kept away from healthcare, schools and so on. These children will be incredibly vulnerable if these amendments go through, and I put on record again that we need to tackle FGM—and my goodness, we need to tackle it—at source. It is probably far too late in the day, but really it is the community and religious leaders who need to be stopped when they are preaching non-authentic Hadith and pressing for FGM on that unauthentic basis. Even at this late stage I plead with the Minister to take a step back and think whether this is the right way forward. I profoundly believe it is not. The most eminent QC in this country, Dexter Dias, who knows about these things, would say the same. Go to the community and religious leaders; do not try and deal with this after the event when these children have already been tortured.
Lord Berkeley of Knighton
My Lords, as the noble Lord, Lord Bates, knows, I have taken a great interest in this subject. I am in favour of the Government taking every action they can, but having listened to my noble friends on these Benches, I have to say that we should row back from this new clause. As I listened to my noble friend Lord Patel, I could imagine the circumstances of a seriously ill child whose parents knew that if they took her to a hospital and she was examined, they would be putting themselves at risk. As we have heard, we could be creating an even worse situation. We have to try to seize the whole problem of FGM, but it must be done at an earlier stage. I have suggested before that if there is to be anything mandatory, perhaps it must be examination at a much earlier stage, but that is another matter.
Baroness Howarth of Breckland
My Lords, I found this quite extraordinary when I read about it in the newspapers. That is not because I do not think that the Government should be taking a strong line—I admire that—and not because we need to take action against FGM—many of us have spoken about it—but because we had an in-depth debate in which the noble Baroness, Lady Walmsley, and I held slightly different views about mandatory reporting. When we looked at mandatory reporting in its broader sense, it was clear that the differences between us were all about unintended consequences and not having thought through the issue from beginning to end. I was under the impression that mandatory reporting was to be taken away and there would be an in-depth look at the issue with a different sort of consultation, after which we would come at it again. FGM is at the most complicated end of mandatory reporting, as we have heard from my noble friends, so I had assumed that it would be included in that further debate. I am surprised that the provision has been brought forward in this way, even though most of us would want any possible action taken to prevent FGM.
My final point is that this clause cuts across the basic principle that the child’s needs are paramount, something which is repeated in all our children’s legislation. Here, the child’s needs are no longer paramount—the community wish to take action becomes paramount. I hope that this will be taken away and looked at again in relation to the arguments which have been made.
Baroness Smith of Basildon
My Lords, what is always clear when we debate FGM issues is how complex they are. I think that the law of unintended consequences has been discussed throughout our debates. I have just read again the letter from the Minister, Karen Bradley, to Seema Malhotra MP setting out why the Government have brought this new clause forward. A consultation was held on 5 December on how to introduce mandatory reporting for FGM. As other noble Lords have said, it is a little strange that we did not have the benefit of that consultation when we held our previous discussions. It would have been helpful to have the consultation and the Government’s response, but they were not made available to us, although the other place did have the benefit of seeing them when it discussed these issues.
The purport of the amendments which have been put forward in your Lordships’ House on this issue is not just to deal with the problem afterwards, but to prevent it happening in the first place. It is also about sending a strong message that FGM is something we cannot tolerate at all. I have some concerns about mandatory reporting, but it is to be hoped that they can be addressed in the guidance and the review process. I think it is clear that we need to ensure that where health professionals are aware of instances of FGM, they should report them so that action, whether that be medical or legal, can be taken. The concerns which have been raised are ones that the Government will want to address when they are considering the guidance. If they find that there is any evidence of women not presenting to medical practitioners for care during pregnancy, it should be examined.
Baroness Meacher
I just want to check whether the noble Baroness agrees that reporting to the police could actually deter families from taking these children to the health services. In saying that reporting needs to happen, I am very worried if this goes to the police.
Baroness Smith of Basildon
I am not sure that I accept that a family whose daughter had undergone FGM and became seriously ill would not want that to be dealt with. It is quite a big jump to make, to put pressure on a family in that way. The noble Baroness says that they will not, but if that becomes evident, the Government will have to look. As I said, I have slightly conflicted views on this, but the House of Commons, I am sure, had the benefit of the consultation—although that was slightly split. I look forward to the response from the noble Baroness the Minister.
I come back to the point on legal aid. One issue that I raised with the Minister in earlier debates was whether legal aid would be available for FGM orders. At that time, she was unable to confirm that they would. We raised the point that without such legal aid, which is available for forced marriage orders, there would be no FGM orders. The point about prevention, which the noble Baroness made, is that unless you have the orders, there is not going to be prevention of FGM. We have had several conversations; the noble Baroness promised to write to me on several occasions, and I think she was frustrated that no correspondence was forthcoming. I am pleased now that the Government have confirmed that legal aid will be available for FGM orders. So we support the new clause, but I would be grateful if she could address some of the points raised in this debate, because justified concerns have been raised. That does not take away from the fact that the whole purpose of this is to try to prevent FGM from ever occurring and women from suffering such abuse.
Baroness Williams of Trafford
My Lords, it is probably best to start with the point that not only is FGM illegal but it has been illegal for 30 years, and that all healthcare professionals—indeed, all professionals —who come into contact with children have a general safeguarding duty to those children. That is the underlying issue within the law, and it has been so, as I said, for three decades. As noble Lords have said, FGM is a terribly complex issue, and there are things beyond the law that we also need to do in terms of changing the culture and the practice of FGM.
I will start with the points made by the noble Lord, Lord Patel. The mandatory duty to report has actually received support from organisations such as the Royal College of Nursing and the Royal College of Midwives, but the noble Lord pointed out the concerns raised by the BMA. It has actually been supportive of the majority of the FGM measures in the Bill but it has highlighted some concerns in respect of the mandatory reporting duty, particularly what it means for victims. The Government appreciate that introducing a mandatory reporting duty will impact on many different sectors, and we recognise that this is very complex. However, we believe that it will be an important step forward in tackling FGM.
FGM is already a hidden crime, and introducing a clear mandatory duty will provide clarity for professionals on their responsibilities to report to the police. It will also lessen the onus on the girls to report FGM by putting responsibility on those whose job it is to safeguard girls who have been victims of what is a crime and what is child abuse. Of course, we recognise that there are existing legal and professional responsibilities in relation to safeguarding, and the new duty will have to be seen in the context of the existing statutory guidance—for example, Working Together to Safeguard Children.
Some concern has been expressed that the duty may act as a barrier to individuals accessing healthcare services. The Government recognise this risk, which is why we are clear that there will be no requirement for professionals to work outside their usual professional duties to actively seek out cases of FGM. We have focused the duty on known cases of FGM rather than suspected ones, and the new FGM unit working with government departments is conducting a programme of outreach with professionals and front-line communities, which will explain how the new duty, in tandem with other government reforms, will work in practice. We are also updating the multiagency guidelines on FGM and putting them on a statutory basis to support effective implementation of the duty.
There were also concerns about cases being referred to the police and the fear that this may act as a further deterrent to individuals accessing services. The Government have carefully considered the options for when referrals should be made, and we recognise that cases have both a criminal and a safeguarding element. FGM is a criminal offence and we therefore believe that the most appropriate reporting route is via the police. However, I reassure noble Lords that a report to the police will not necessarily immediately trigger a criminal investigation: when a report is made, the police will work with the relevant agencies to determine the most appropriate course of action. In preparing to introduce the duty, we will work closely with the police to ensure that a clear reporting system is in place prior to its introduction. In addition, we will have ensured that there is a reasonable timeframe within which professionals are required to make the report to the police, to allow time for consultation with other agencies in sensitive or complex cases.
Finally, I confirm that the Government will ensure that there is adequate time for consultation with stakeholders prior to the introduction of statutory guidance.
I again apologise to the House for the confusion about the provisions relating to legal aid. The relevant amendments in this group are indeed Commons Amendments 50 and 51. I think the noble Baroness, Lady Smith, asked what legal aid will be available for orders made in criminal proceedings. The Commons amendments make civil legal aid available for victims and third parties who may wish to apply, vary or discharge an FGM protection order.
Baroness Smith of Basildon
The noble Baroness is aware that the orders are not based on criminal proceedings; they are civil orders. The confusion was caused because the Government have placed a civil provision within the criminal law, whereas our proposal was for a civil provision, wholly within civil law. I think that is what, partly, created the confusion around legal aid. It is purely a civil matter, although it sits within criminal legislation.
Baroness Williams of Trafford
I thank the noble Baroness for clarifying that. I think I referred to this in my introduction, but the Government have made some quite tough choices in deciding which matters would remain in scope of legal aid. The ministry took account of the importance of the issues at stake, the individual’s ability to present their own case and the availability of alternative sources of funding. Legal aid continues to be available in the most serious of cases, for example where people’s life or liberty is at stake or where their children may be taken into care. Legal aid is available where not providing it would be likely to result in a breach of the individual’s rights under the European Convention on Human Rights or European law. I confirmed in my remarks at the beginning that civil legal aid will be provided.
My noble friend Lady Walmsley asked about the progress of the consultation on whether to introduce a more general duty to report suspected abuse of children and vulnerable adults. As my noble friend will know, following the earlier debates on the Bill in the House the Government committed to undertake such a consultation, and the outcome of that consultation will be reported on within 18 months of Royal Assent.
My noble friend also asked about sanctions for failing to report cases of FGM. The proposal will use existing disciplinary frameworks to consider sanctions. Given that in health these may include General Medical Council and Nursing and Midwifery Council fitness to practise proceedings, there can be a wide variety of recommendations made as to suitable action, which may include retraining, supervision or other measures.
Lord Patel
I am sorry to interrupt the Minister. She repeated that it has been a criminal offence for 30 years and I absolutely agree. However, what has been a criminal offence for 30 years is to perform female genital mutilation, and we have failed to prosecute anybody for doing so. This might be a means to provide encouragement when a prosecution does come along, but we have to be aware, as my noble friend Lady Howe said, that there are serious things that may happen because of the amendment. If this amendment had already been in the Bill, we would have explored it in Committee in great depth. I am encouraged that the Minister says the guidance in the consultation will be wider. I hope that in the formulation of the consultation document, the noble Baroness and Ministers will also consult the professionals and teachers. It is not only the British Medical Association that did not like this amendment; it is also the General Medical Council, which is the regulator. If I do not report a case, I am breaking the law after this legislation, the General Medical Council will be obliged to investigate me and it might be to the point that it removes my licence to practise—I am temporarily still licensed to practise though maybe not for long. Therefore, it is a serious amendment to address.
Baroness Williams of Trafford
I thank the noble Lord and pay tribute to his years and years of experience, of which I have none. I take his point that although it has been a criminal offence for 30 years, there have not been any prosecutions brought. This legislation has not come without extensive consultation with a variety of different stakeholders or without raising awareness within the population as a whole—that is why the Girl Summit sought to raise awareness. The noble Lord is absolutely right: it will not be done by legislation alone.
The consultation will involve a wide range of stakeholders. What we had before was certainly not perfect or else we would not be revisiting it 30 years later. We can only hope that, by raising awareness, trying to change culture and putting in place the various measures that we have, we will actually get to a better place for these girls in the future. We are going to watch progress as time goes on.
I will just mention to the noble Lord, Lord Patel, that we received 150 responses from a wide range of different areas when the consultation closed on 12 January and we have had various workshops with healthcare professionals. I hope that gives him some comfort regarding the Government’s intention.
Baroness Finlay of Llandaff (CB)
Before the noble Baroness sits down—I was waiting in case she covered an area which I think may be important—can she confirm to the House that the guidance about the investigation of a reported case will include the ability to see whether it may be an index case in an area where FGM is being promoted, so that the prevention aspect of discovering one case can be built in and built on so that the community at risk is actively targeted with education and support to try to ensure that the girls at risk who are not yet subject to FGM are more adequately protected?
Baroness Williams of Trafford
My Lords, I do not know the ins and outs of particular cases, but I see where the noble Baroness is coming from, which is that there may be learning about raising awareness in the communities involved. She certainly has a point, but perhaps I could write to her in due course.
Lord Bates
That this House do agree with the Commons in their Amendments 7 and 8.
“Controlling or coercive behaviour in an intimate or family relationship
(1) A person (A) commits an offence if—
(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected, (c) the behaviour has a serious effect on B, and
(d) A knows or ought to know that the behaviour will have a serious effect on B.
(2) A and B are “personally connected” if—
(a) A is in an intimate personal relationship with B, or
(b) A and B live together and—
(i) they are members of the same family, or
(ii) they have previously been in an intimate personal relationship with each other.
(3) But A does not commit an offence under this section if at the time of the behaviour in question—
(a) A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and
(b) B is under 16.
(4) A’s behaviour has a “serious effect” on B if—
(a) it causes B to fear, on at least two occasions, that violence will be used against B, or
(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
(5) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.
(6) For the purposes of subsection (2)(b)(i) A and B are members of the same family if—
(a) they are, or have been, married to each other;
(b) they are, or have been, civil partners of each other; (c) they are relatives;
(d) they have agreed to marry one another (whether or not the agreement has been terminated);
(e) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
(f) they are both parents of the same child;
(g) they have, or have had, parental responsibility for the same child.
(7) In subsection (6)—
“civil partnership agreement” has the meaning given by section 73 of the Civil Partnership Act 2004;
“child” means a person under the age of 18 years;
“parental responsibility” has the same meaning as in the Children Act 1989;
“relative” has the meaning given by section 63(1) of the Family Law Act 1996.
(8) In proceedings for an offence under this section it is a defence for A to show that—
(a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and
(b) the behaviour was in all the circumstances reasonable.
(9) A is to be taken to have shown the facts mentioned in subsection (8) if— (a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and
(b) the contrary is not proved beyond reasonable doubt.
(10) The defence in subsection (8) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.
(11) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”
“Guidance
(1) The Secretary of State may issue guidance about the investigation of offences under section (Controlling or coercive behaviour in an intimate or family relationship) to whatever persons the Secretary of State considers appropriate.
(2) The Secretary of State may revise any guidance issued under this section. (3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”
Lord Bates
My Lords, I shall speak also to Commons Amendments 17 and 21.
We can all agree that domestic abuse is a serious and pervasive crime; a point well made by the noble Lord, Lord Wigley, on Report. It is shocking that in the past year more than 2 million people in England and Wales were abused by those closest to them, and even more shocking that 85 women were murdered by a current or former partner.
However, comparing those figures to the number of people who reach out for help and access the criminal justice system shows that, despite prosecution and conviction figures reaching their highest ever levels under this Government, domestic abuse is still vastly underreported. A stark comparison of crime survey and Crown Prosecution Service figures suggests that just one in 20 of those abused by their families and partners have access to justice.
The sad fact is that we are still grappling with a reality where many people think a crime has been committed in a relationship only if violence is involved. Even the courts have taken the view that stalking and harassment legislation does not apply in ongoing relationships where abuse is interspersed with periods of affection. That rules out those cases of domestic abuse where controlling and manipulative perpetrators play on the affection of their partners or family members to avoid detection.
The Government understand that coercive and controlling behaviour can be harder to recognise, but can be every bit as damaging to its victims as physical violence. To quote one victim of domestic abuse who responded to our consultation,
“my bruises faded, but the psychological scars didn’t”.
In recognition of the harm that coercive and controlling behaviour can do, the Government have expanded the non-statutory definition of domestic violence and abuse to send a clear message that abuse is more than just physical. Last summer, we ran a consultation to ask whether the law also needs to be strengthened to provide better protection to victims of domestic abuse. Eighty-five per cent of respondents told us that the law needs to be strengthened; 55% highlighted the need for a new offence to make sure that a person causing someone they are in a relationship with to live in constant fear faces justice for their actions.
Commons Amendment 7 provides for just such an offence. The new offence makes it clear that abusing someone in a relationship is every bit as serious as stalking or harassing a stranger. It applies to repeated or continuous behaviour in relationships which, when incidents are viewed in isolation, may appear unexceptional, but has a significant cumulative impact on the victim’s everyday life. It causes them to feel fear, alarm or distress.
When I first spoke on this issue in the House last year, I said that legislation on this issue must be approached judiciously. I stand by that. There is a balance to be struck. Every relationship has its own power dynamics and this is not about outlawing arguments or saying that couples cannot disagree. It must be clear that the new offence does not apply to volatile relationships which stop short of being abusive. To capture this balance, key elements of the new offence are the need to establish the repeated or continuous nature of the behaviour and the ability of a reasonable person, whether part of or external to the relationship, to appreciate that the behaviour will have a serious effect on its victim.
We have made sure that the new offence does not duplicate existing criminal law. Child abuse does not fall into the ambit of the new offence because it is covered by existing offences. Nor does the new offence apply to extended family members who have never lived with the victim, because stalking legislation would capture those circumstances.
We must also be on our guard against the application of the new offence in circumstances where control may be necessary to secure a loved one’s safety. For example, I am sure that none of us would want to see the spouse of a person struck by mental illness imprisoned for medicating them or protecting them from situations which may cause them harm. I am equally sure that we would not want to see the parents of an unruly teenager convicted for proportionately curbing the behaviour of their wayward child. That is why we have included a defence in the framework.
Of course, we also need to be sure that manipulative perpetrators cannot use the defence to escape justice. To address this, the defence will not be available where the victim has been caused to fear violence. To rely on the defence, a defendant will need to show that a reasonable person would agree that their behaviour was reasonable in all the circumstances. This is not an easy test to meet if you have perpetrated a campaign of control against another person.
The maximum sentence of five years’ imprisonment for the new offence recognises the damage that coercive or controlling behaviour can do to its victims and is commensurate with the maximum penalty for stalking. Of course, the new offence cannot be implemented without an effective police response, so the work that the Home Secretary is doing to drive improvements through her national oversight group on domestic abuse remains as high a priority as ever.
The new offence, together with the guidance for investigators provided for in Commons Amendment 8, will make it easier for the police to protect victims and bring those who abuse them to justice. This will send a clear message that domestic abuse in all its forms will not be tolerated in our society. Commons Amendments 17 and 21 are consequential on Amendments 7 and 8. I beg to move.
Baroness Smith of Basildon
My Lords, I welcome these amendments. As a long-term patron of Basildon Women’s Aid, for over 20 years, I am very much aware that coercive and intimidating behaviour is often a precursor to violent behaviour. I have spoken to women and found that it can start with, “Oh, I like to see you in that dress”. In one case, it went from what somebody wore and whether they wore make-up through to, if they even washed, they were seen as trying to attract other men, and that then led to violence. It can start very simply with what somebody wears or make-up and end in violent behaviour.
Not only does the amendment recognise that controlling or coercive behaviour in such relationships is dangerous, it could also be a preventive measure, because it could nip the problem in the bud before it gets to violent and more abusive behaviour. The amendment recognises how dangerous such controlling behaviour is. Even if it does not lead to violent behaviour, controlling behaviour is dangerous and corrosive to the individual. That is recognised in the courts already. Ongoing, day-in, day-out controlling behaviour has led to cases where the woman being victimised has turned on and been violent towards the perpetrator of such behaviour. The courts have now recognised that slow-burn behaviour. Intimidation has consequences, so the amendment is very welcome.
The Minister talked about the effective police response. Passing a law does not, on its own, make something happen, and he recognised that. In my area, the number of police officers and the pressure that they are under has an impact on the police’s ability to investigate and act on such issues. Too often, domestic violence can, as the noble Lord and the Home Secretary have recognised, come further down the list of priorities. I hope that, when the Government examine how successful this is, they also look at the resources that are available for the police to take the action that is needed.
Lord Bates
My Lords, I am grateful to the noble Baroness for welcoming the amendment and for her additional emphasis on the point that this could be seen as a preventive measure. That is absolutely right and I hope that that will be the case.
On the noble Baroness’s specific point, the Home Secretary has not shied away from the fact that the police need to do more. That is why she has launched the review by Her Majesty’s Inspectorate of Constabulary on the police response to domestic abuse. That report identified that police practice in using the current law is inadequate. The chief inspector also highlighted failures in leadership that mean that strategic priorities are not being realised in front-line policing and there is a front-line culture in which domestic abuse is often not regarded as a serious crime. The Government are clear that this is not good enough. Lasting, meaningful improvement must happen now; and to make sure that change happens, the Home Secretary has established and is chairing the new national oversight group. This work is the Government’s main priority on domestic abuse and will lead directly to better protection of victims. However, in addition to important operational improvements, the new offence will strengthen the protection available to victims trapped in cycles of abuse and help front-line agencies provide a better response to this serious crime. I appreciate the cross-party support on this issue.
Lord Bates
That this House do agree with the Commons in their Amendments 9 and 10.
“Throwing articles into prisons
After section 40CA of the Prison Act 1952 (inserted by section 71 above) insert—
“40CB Throwing articles into prison
(1) A person who, without authorisation, throws any article or substance into a prison is guilty of an offence.
(2) For the purposes of subsection (1)—
(a) the reference to an article or substance does not include a reference to a List A article, a List B article or a List C article (as defined by section 40A);
(b) the reference to “throwing” an article or substance into a prison includes a reference to doing anything from outside the prison that results in the article or substance being projected or conveyed over or through a boundary of the prison so as to land inside the prison.
(3) In proceedings for an offence under this section it is a defence for the accused to show that—
(a) he reasonably believed that he had authorisation to do the act in respect of which the proceedings are brought, or
(b) in all the circumstances there was an overriding public interest which justified the doing of that act.
(4) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine (or both);
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine (or both).
(5) In this section “authorisation” means authorisation given for the purposes of this section; and subsections (1) to (3) of section 40E apply in relation to authorisations so given as they apply to authorisations given for the purposes of section 40D.””
“Prevention or restriction of use of communication devices by prisoners etc
(1) Regulations may make provision conferring power on a court to make a telecommunications restriction order.
(2) “Telecommunications restriction order” means an order requiring a communications provider to take whatever action the order specifies for the purpose of preventing or restricting the use of communication devices by persons detained in custodial institutions.
(3) Regulations under this section must—
(a) specify who may apply for telecommunications restriction orders;
(b) make provision about giving notice of applications;
(c) make provision conferring rights on persons to make representations;
(d) specify the matters about which the court must be satisfied if it is to make an order;
(e) make provision about the duration of orders (which may include provision for orders of indefinite duration);
(f) make provision about variation (including extension) and discharge of orders;
(g) make provision about appeals.
(4) Regulations under this section may—
(a) make provision for a telecommunications restriction order to specify that a requirement of the order is not to apply in particular circumstances;
(b) make provision authorising a court to include in an order a requirement for the person applying for the order to pay any or all of the costs of complying with it;
(c) make provision about time limits for complying with orders;
(d) make provision about enforcement of orders (which may include provision creating offences);
(e) make provision about costs (or, in Scotland, expenses) in respect of legal proceedings;
(f) make different provision for different purposes;
(g) make incidental, consequential, supplementary or transitional provision, including provision applying any enactment (with or without modifications).
(5) The power to make regulations under this section is exercisable—
(a) in relation to England and Wales, by statutory instrument made by the Secretary of State;
(b) in relation to Scotland, by the Scottish Ministers.
(6) A statutory instrument (other than a Scottish statutory instrument) containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(7) Regulations made by the Scottish Ministers under this section are subject to the affirmative procedure.
(8) In this section—
“communication device” means an item specified in section 1(3) of the Prisons (Interference with Wireless Telegraphy) Act 2012 (mobile telephones etc);
“communications provider” means a person providing a service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by that person);
“court” means—
(a) in relation to England and Wales, the county court;
(b) in relation to Scotland, the sheriff;
“custodial institution” means—
(a) in relation to England and Wales, a prison, young offender institution, secure training centre or secure college;
(b) in relation to Scotland, a prison or young offenders institution;
“enactment” includes—
(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;
“telecommunication system” means any system (including the apparatus comprised in it) that exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electro-magnetic energy.”
Lord Bates
My Lords, I shall speak also to Amendments 16, 22, 23 and 28. Control and order is a fundamental foundation of prison life. Without it, safety cannot be guaranteed and the rehabilitation of prisoners cannot take place. It is known that the throwing of packages containing contraband, including psychoactive substances—often inappropriately referred to as “legal highs”—is a key method of supplying drugs into prisons. In some cases, it is co-ordinated by criminal gangs involved in a wide range of criminality. The presence of new psychoactive substances in prisons, now drugs of choice among many prisoners, is a significant and growing problem that we must address urgently. These drugs are having an increasingly destructive impact on prison security, order and the welfare of individual prisoners, with increasing evidence of links to mental health problems and violent behaviour.
While it is currently a criminal offence under the Prison Act to convey a number of items including controlled drugs into a prison, non-controlled substances are not covered by that legislation. As such, those caught trafficking a range of new psychoactive substances have been able to evade justice. This is not acceptable.
Commons Amendment 9 will create a new offence of throwing or otherwise projecting any article or substance into a prison without authorisation. The clause will criminalise the trafficking of new psychoactive substances into our prisons and also captures the throwing of other articles into prison that could pose a threat to prison staff and prisoners. We must not tolerate those who damage prison health and order by throwing items such as new psychoactive substances into prisons. This new offence will help to stop this harmful practice.
Commons Amendment 10 seeks to prevent the unauthorised use of mobile phones in prison. The unauthorised use of mobile phones presents serious risks to prison security. They have been used to plan escapes and support the commission of serious crimes by organised criminals. In January, we saw the sobering reports of the conviction of a prisoner in Wandsworth prison who had used his mobile phone to arrange the importation of machine guns into this country from Germany. I am sure that we all agree that such use of mobile phones in prison is completely unacceptable.
The National Offender Management Service uses a range of techniques to detect and seize phones in prisons. However, despite the success of these methods, as mobile phone technology advances and the size of handsets decreases, it is becoming easier for prisoners to conceal illicit phones in prison. Disconnecting phones would be a cost-effective and future-proofed method to prevent the unauthorised use of phones in prison. Mobile network operators have asked for a clear legal framework to support disconnection. Amendment 10 will therefore enable the Secretary of State—or, in Scotland, Scottish Ministers—to make regulations conferring a power on the civil court to make a telecommunications restriction order. Such an order will require a mobile network operator to disconnect those SIM cards and handsets that are found to be in use in prisons without authorisation, effectively putting those devices beyond normal operational use.
In the unlikely event that a genuine customer’s phone is disconnected in error, NOMS will advise the mobile network operator that the telecommunications restriction order no longer applies. This will allow the network operator to expedite the reconnection of the service. This will be done quickly, without the need to return to court to vary the order. The customer’s phone can still be used to call the emergency services, should that need arise. As an additional safeguard, NOMS will report annually to the Interception of Communications Commissioner, providing the details and frequency of any erroneous disconnections for scrutiny by the commissioner’s office.
It is unacceptable that prisoners should continue to use mobile phones to carry out criminal activity outside prison. Having the power to disconnect illicit phones in prison will help to tackle that flagrant disregard for the restraints of their incarceration. Our view is simple: we must constantly seek ways to improve prison security. These new offences will do exactly that. The other amendments in this group are consequential on these two new clauses. I commend these amendments to the House.
Lord Harris of Haringey (Lab)
My Lords, this is pure curiosity on my part but, in relation to Amendment 10, might I understand how it would be possible to tell the communications providers that they should apply a telecommunications restriction order to a specific SIM card unless said SIM card had already been seized and obtained by the prison authorities—in which case, why would it be needed? Also, what steps have been taken to look at technological systems that would jam the signals inside prisons?
Lord Bates
Those are very reasonable points to make. On general jamming in the prison compound, I recognise of course that some individuals working within that compound need to have mobile devices, which can be used to communicate. By that, I am referring to the staff prison officers.
On the specific issue of SIM cards, the National Offender Management Service currently uses a range of different techniques to detect and seize phones already in prisons, including the use of detection technology and regular cell and prisoner searches. However, despite the success of these approaches, as mobile phone technology advances and the size of handsets decreases it is becoming easier for prisoners to conceal illicit phones and move them around the prison estate. It is for the Crown Prosecution Service to decide whether to prosecute an individual for possessing a mobile phone in custody. Due to the way in which mobile phones are typically used in prisons, with multiple prisoners potentially sharing one phone, it is often not possible to attribute handsets and SIMS to specific individuals.
In many ways, I agree with the noble Lord that identifying the number on the SIM card is tremendously difficult when you are still searching for the device. However, in the light of experience, we are simply trying to make it as difficult as possible for the individuals concerned to do this. NOMS uses a range of measures to stop phones and SIM cards getting into prisons. However, due to the high number of deliveries, post items and individuals entering and leaving prisons each day, it is impossible entirely to prevent SIMs and handsets making their way on to the prison estate.
Those are the points that I have, which I hope have been some help. There might just be some communications data on their way to help me. The signal of an unauthorised phone or SIM card can be detected without physically seizing the phone SIM in question. Blocking has a role but can be expensive to use. The answer is therefore probably quite straightforward—it is now, anyway. Through the detection devices we can identify a SIM, even if we have not managed to locate it, and block it in the process. I hope that with that general reassurance, the House will accept these amendments.
Lord Bates
That this House do agree with the Commons in their Amendment 11.
“Codes of practice about investigatory powers: journalistic sources
In section 71 of the Regulation of Investigatory Powers Act 2000 (issue and revision of codes of practice), after subsection (2) insert—
“(2A) A code of practice under subsection (1) that relates (expressly or otherwise) to the exercise and performance, in connection with the prevention or detection of serious crime, of powers and duties conferred or imposed by or under Part 1 of this Act—
(a) shall include provision designed to protect the public interest in the confidentiality of journalistic sources;
(b) shall not be issued unless the Secretary of State has first consulted the Interception of Communications Commissioner and considered any relevant report made to the Prime Minister under section 58.””
Lord Bates
My Lords, I shall speak also to Commons Amendments 14, 30 and 34. I will first deal with the Commons amendments.
Commons Amendment 11 relates to the use of powers under Part 1 of the Regulation of Investigatory Powers Act—RIPA—to identify journalistic sources. The House will recall that this important issue was raised by my noble friend Lord Strasburger on Report in October. I hope I speak for the whole House when I say that a free press is fundamental to our democracy and nothing should be done which might endanger that.
When the issue was before us previously, I said that it would be premature to take action in advance of knowing the findings of a report into the issue by the independent Interception of Communications Commissioner. We now know the commissioner’s findings and the Government immediately accepted in full the recommendations contained in his report when it was published last month. Those included that there should be judicial authorisation of requests for communications data which are intended to determine the source of journalistic information. While the commissioner did not find widespread or systematic abuse, and found that the number of cases where police forces had sought to obtain communications data for the purpose of determining journalistic sources were few, he found that a lack of sufficient care and attention in some applications, including in the consideration of the implications for freedom of expression, was such that we needed to act.
We have not been able to bring forward in the Bill the legislative changes required to give full effect to the commissioner’s recommendation relating to judicial authorisation, given that the scope of the Bill is limited to serious crime. However, I trust that Commons Amendment 11 will make it clear that we will address the underlying principle as far as possible when we can. It provides that any code of practice issued under RIPA that deals with the use of the investigatory powers under Part 1 of that Act in relation to the prevention or detection of serious crime shall include provisions which protect the public interest in the confidentiality of journalistic sources. It also requires the Secretary of State to consult the Interception of Communications Commissioner and to have regard to any relevant reports that he has made.
Noble Lords will also be aware that we intend to lay very shortly for parliamentary approval the draft acquisition of communications data code of practice. That follows a public consultation on the draft code and addresses both the responses to that consultation and the Interception of Communications Commissioner’s recent report. The code, when approved, will require law enforcement to use production orders, which are judicially authorised, under the Police and Criminal Evidence Act 1984—or the equivalents in Scotland and Northern Ireland—for applications for communications data to determine journalistic sources.
Nevertheless, it is clear that a long-term solution will have to wait until after the election. However, to be clear about our intent, the Government published last week a draft clause that will give full effect to the commissioner’s recommendation on judicial authorisation for applications to determine the source of journalistic information. Legislation will be required in the next Parliament in the field of investigatory powers to give effect to the recommendations of David Anderson QC, the Independent Reviewer of Terrorism Legislation, which will give Parliament the opportunity to put into law the full recommendation of the independent commissioner. I hope that the Government’s approach provides reassurance to your Lordships that the Government take very seriously the issue of the protection of a free press and free expression.
I hope that Commons Amendment 11, in combination with the other measures I have outlined, including a requirement to use the judicially authorised production order route and a commitment to future legislation, will assure your Lordships of the Government’s intent in this area. I reiterate that the Government are committed to giving full effect to the recommendations made by the Interception of Communications Commissioner. We are doing as much as we can in the Bill, given the limitations of its scope, and will return to this issue in the next Parliament. I recognise that my noble friend Lord Strasburger would like the Bill to go further. I look forward to hearing what he has to say about his Amendment 11A and I will respond to that when winding up. In the mean time, I invite your Lordships to agree with the Commons amendments.
Lord Strasburger
That this House do agree with Amendment 11A as an amendment to Commons Amendment 11.
“(aa) shall include provision designed to protect the confidentiality of personal information obtained in connection with a person’s acting as a minister of religion, as a healthcare professional or as a Member of Parliament;(ab) shall include provision about the circumstances in which notice of legal proceedings relating to notices and authorisations under Part 1 of this Act in respect of data should be given to persons to whom the data relates;”
Lord Strasburger (LD)
My Lords, when this Bill was last debated in another place, the Home Office rejected a new clause tabled by Julian Huppert and backed by cross-party Back-Benchers that was very similar to this Amendment 11 but had a number of key differences. My amendment seeks to probe the justification, if there is any, for the Government’s omission of those provisions.
The first of these relates to the protection that is due to other privileged material, as it is rightly intended to be provided for journalistic material. This is what might be called medical privilege, religious or spiritual privilege and elected representative privilege. When an individual makes contact with a doctor, priest or MP, they are entitled to a higher level of confidentiality than applies to other matters. Therefore, just as journalistic material should be subject to a process involving judicial authorisation before communications data are accessed by the police, so should this sort of communications data.
The justification for providing protection in respect of journalistic material in RIPA, provided by the Government when they eventually agreed, was that it was necessary to protect whistleblowers who could be identified by the police accessing the communications data of journalists. Surely the same applies in respect of the communications data of Members of Parliament, and their equivalent in the European Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. Why are the Government in their new clause providing only that the code of practice should protect whistleblowers’ identity when they go to the press and not when they go to their MP to reveal serious wrongdoing?
The second justification given by the Government for judicial authorisation before the police could access journalists’ communications data was that there was confidential information inherent in the “metadata” that would be obtained; namely, that someone identifiable had contacted a journalist. Exactly the same applies in respect of communications data relating to medical practitioners. The fact that a certain person has been in communication with a healthcare professional with a specific specialty in itself reveals confidential information. Obvious examples are mental health care professionals, STD clinics, obstetricians and so forth. The Home Office has provided no justification for failing to provide protection for such data, nor indeed has it provided for safeguards to be written into the code of practice, which the amendments before us deal with. This is even more peculiar when one sees that the Government’s proposed change to the code of practice, which was all they were offering before the IOCCO’s report was published, makes specific reference to the types of privilege—medical, spiritual and Member of Parliament—which my amendment would require a code of practice to deal with. It is not good enough for the Home Office to say that it wants to go no further than the recommendations in the IOCCO’s report because that report in several places made reference to the equivalent public interest that attaches to the confidentiality in these areas.
The second matter that my amendment deals with is the question of notice for journalists of an application to a judge when their confidential sources’ identities may be revealed. Under PACE, when the journalist holds the confidential material—called “excluded material” under PACE—the default position is that the journalist is given notice; that is, that the application is heard by the court inter partes. When it comes to RIPA and communications data, the person who holds the material will in general be a telecoms company or an ISP. They are not going to be in a position, of course, to contest any application. They have no significant interest in protecting the confidentiality of any of the information they provide to the police, providing that the police are acting within the law. It is only the journalist who can and should, if circumstances permit, assist the court in identifying the degree of public interest in identifying any of his or her sources.
By analogy with the provisions in PACE, it seems only right that there should be provision in the new legislation that the Government have promised after the election to provide for judicial authorisation for journalists to be given notice of the application. No doubt it will be appropriate also to provide that that notice does not have to be given when there is a risk that such notice might significantly prejudice a criminal investigation because, for example, the journalist, himself or herself, is a suspect, or, if given notice, could destroy evidence, or because the journalist might tip off a contact who was a suspect in a criminal investigation that might lead to the suspect destroying evidence or absconding.
That is why my amendment seeks to require that the code of practice makes provisions for the circumstances in which the journalist could and should be notified of an application to access communications data that is likely to lead to the identification of a confidential source. It should make no difference to the question of whether, without prejudice to an investigation, a journalist can have the opportunity to make his or her case to the judge when the data in question are held by a third party telecoms company.
The courts have found it extremely useful to hear representations from the media about non-broadcast footage when the police had applied under PACE for the release of that material. The protection of whistleblowers requires that the only people who can speak up for them in court before they are identified under this legislation are given notice of the application, subject to not prejudicing the investigation. This is a concern for my party and the National Union of Journalists.
Before I finish, I should like to raise a number of questions to the Minister on this area. After Julian Huppert tabled his new clause, which would provide for judicial oversight in RIPA for applications relating to journalistic sources, the Government agreed to make a temporary arrangement that the police would be directed to use PACE when such circumstances arose, and that this would be achieved by a change to the code of practice. My first question is: when will the Government bring forward the proposed code of practice, because time is short before Parliament prorogues? Secondly, will my noble friend and officials meet urgently with me and the National Union of Journalists to discuss the form of that code of practice? Thirdly, is it intended that the code of practice will, as I have indicated by this amendment, set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE, even though the existing PACE provisions do not provide that they be given notice because they are not holders of the data or material? Fourthly, will the Home Office take the opportunity in this code of practice to make it clear that the police should use PACE procedures for other forms of privilege before obtaining communications data relating to the other forms of privilege that I have set out, as well as to communications data that might reveal contact between a lawyer and his or her client? As I explained, the Government’s previously proposed change to the code of practice did specify that consideration needs to be given to these other forms of privilege on the same basis as that given to journalistic privilege.
The Government, in response to Mr Huppert’s proposed new clauses, also published draft clauses that they said would be included in any update of RIPA legislation following the report of the Anderson review, early in the next Parliament. Those draft clauses were made available to Members of the other place only about an hour before the debate on Mr Huppert’s new clause. It therefore seems appropriate to use this opportunity to ask the Government to explain some of their provisions before this legislation goes through, given that Members of the other place were not given that opportunity before deciding not to press Mr Huppert’s new clause.
My first question is why there is a provision in the draft clauses to bypass judicial authorisation for RIPA requests for telecoms data in the circumstances of “imminent threat to life”, when such provision does not exist in PACE. Why is the threshold used by the Government to decide when the journalistic privilege requirement to put the application before a judge is triggered higher in their draft clauses than in PACE? The draft clause states that the requirement for judicial authorisation is triggered when the purpose in whole or in part is to identify a journalist’s sources, whereas in PACE the threshold or test, much more appropriately, is that the application is likely to reveal the source. As I have explained, I believe there should be circumstances in which a journalist should be notified of an application to access their communications data, and that this should be included in the new legislation.
The Government’s draft clause, unlike PACE, does not even provide for notice to be given to those who hold the data. Will the Government explain this or reconsider it? The Government’s draft clauses do not contain the same provision as in PACE for it to be an offence to destroy material sought under an order granted by a judge. Will the Minister please explain this? Finally, will the Minister explain why in the draft clause there is no provision for the judge making the decision to have regard to the public interest in maintaining the confidentiality of journalistic sources? This was proposed by the amendment in the other place. I beg to move.
Lord Bates
My Lords, in responding to my noble friend Lord Strasburger, I pay tribute to him for the way he has engaged with this issue. We have had some conversations about this, and I know that this is a subject he feels very passionately about. He also brings a great deal of expertise to the role, and a knowledge of how communications actually work.
The special case being made for journalists here is the fact that not only did the Interception of Communications Commissioner confine his particular examination in his report to looking at journalists, but someone who speaks to, say, a lawyer does not reveal what was said. If someone is trying to establish the source of a leak, knowing who spoke to a journalist may be more important than actually knowing what was said. This does not extend in the same way to other professions. That is what we are trying to say. It is a different way of looking at the particular situations in which journalists find themselves. I also say to my noble friend that we will very shortly lay before Parliament for approval the draft acquisition of communications data code of practice, following the public consultation. That will provide another opportunity to look at this.
My noble friend asked some specific questions about when the Government will bring forward the proposed code of practice. As the Minister for Modern Slavery and Organised Crime made clear in the House of Commons last week, the Government hope that the code of practice will be in place as soon as possible, but obviously this will be subject to parliamentary approval. My noble friend asked whether the Minister and officials will urgently meet with him and the National Union of Journalists to discuss that code of practice. Officials have already met with the National Union of Journalists early in the process. The NUJ has also responded to the consultation, and we have considered their response. Following the consultation, we have implemented significant changes in the code, as I have stated, and will publish it shortly. However, I am of course very happy to meet my noble friend and any others from the NUJ whom he wishes to bring with him.
It was also asked whether the code of practice will set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE. My honourable friend Karen Bradley addressed the issue of providing notice in the House of Commons when considering these amendments in another place last Monday. It has never been the practice in this country that those who are subject to a communications data application are notified. There are obvious reasons for that, given that the crime may be under active investigation. We do not intend to depart from that, but we are of course very happy to listen to concerns.
Lord Strasburger
My Lords, I gave my noble friend the Minister advance notice of my questions. He has made a very good attempt at answering them and I thank him for that. Obviously, the devil will be in the detail of the code of practice. I will very gladly accept his invitation to come and discuss that with him. Clearly, we will all return to this subject in the new Parliament when the Anderson review is delivered. For now I am very happy to withdraw my motion.
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendment 12.
“Termination of pregnancy on grounds of sex of foetus
(1) The Secretary of State shall arrange for an assessment to be made of the evidence of termination of pregnancy on the grounds of the sex of the foetus in England, Wales and Scotland.
(2) The arrangements made under subsection (1) shall be such as to enable publication of the assessment by the Secretary of State within 6 months of the date of Royal Assent to this Act.
(3) The Secretary of State shall consider the assessment made under subsection
(1) and—
(a) determine and publish a strategic plan to tackle substantiated concerns identified in the assessment made under subsection (1); or
(b) publish a statement and explanation in relation to why a plan under subsection (3)(a) is not required.
(4) Any strategic plan under subsection (3)(a) must include, but need not be limited to, steps—
(a) to promote change in the social and cultural patterns of behaviour with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women and which may amount to pressure to seek a termination on the grounds of the sex of the foetus;
(b) to ensure best practice exists in identifying women being coerced or pressured into seeking a termination on the grounds of the sex of the foetus, or at risk of being so, and in the provision of protection and support to potential victims; and
(c) to promote guidance to service providers, health professionals and other stakeholders.
(5) The Secretary of State must lay a copy of the plan, determined under subsection (3)(a), before each House of Parliament within 6 months of the publication date of the assessment under subsection (2).”
Baroness Williams of Trafford
My Lords, noble Lords will be pleased to hear that I have only one amendment to deal with here—I hope I can get it right—which is Commons Amendment 12. Unlike the other Commons amendments we are considering today, Amendment 12 was tabled by a Back-Bench MP, Ann Coffey. It was agreed by the Commons on a free vote by 491 votes to just two. As in the Commons, the Government are not taking a view either for or against Amendment 12, and there will again be a free vote in this House should it go to a Division. That said, it might assist noble Lords if I provide the House with some background.
The Government have been consistently clear that abortion on the grounds of gender alone is already illegal. The Department of Health repeated that in guidance issued in May 2014, and it is important to stress that all independent sector providers have agreed to comply with, and operate on the basis of, the department’s guidance—and that they must do so as part of their licensing conditions.
The department has also undertaken detailed analysis to investigate whether the gender birth ratio in the UK varies by the mother’s country of birth beyond the range that might be expected to occur naturally. The analysis, first published in May 2013 and updated in 2014, concluded that, when broken down by the mother’s country of birth, no group was statistically different from the range we would expect to see naturally occurring. The Department of Health has rightly committed to repeat that analysis annually when new birth data become available. However, I stress that the Government will remain vigilant, will continue to monitor data and will be fully open to any other evidence that comes to light. Anecdotal reports of sex-selective abortion have been raised from time to time. Anyone with evidence of individual cases should report this to the police to investigate.
It is against that background that Commons Amendment 12 would require a further assessment of the evidence that terminations are taking place on the ground of the sex of the foetus alone. In addition to the analysis that the Department of Health is undertaking on an annual basis in this area, any other evidence that comes to light could be considered. The Department of Health is already considering what further sources of evidence can contribute to our knowledge on this important issue. The amendment would further require the Secretary of State for Health to consider the assessment and either to determine and publish a strategic plan to tackle substantiated concerns identified in the assessment, or to give a statement and explanation as to why such a plan is not required.
As I have said, it is for the House to decide whether to agree Commons Amendment 12. In considering the matter, noble Lords may wish to take account of the short debate in the House of Commons and the outcome of the Division in that House, as well as the views of noble Lords as expressed in this debate today.
Lord Bates
That that this House do agree with the Commons in their Amendments 13 to 17.
“( ) Subsection (7) of section (Child sexual exploitation) and paragraph 1A of Schedule 4 do not apply in the case of an offence proceedings for which are started before the commencement of that subsection.”
“( ) The amendment made by section (Codes of practice about investigatory powers: journalistic sources) applies only to a code of practice that is issued or revised on or after the day on which this Act is passed.”
“( ) in the Sexual Offences Act 2003, subsection (3)(a) of the section 15A inserted by section (Sexual communication with a child) above;”
“( ) in that Act, subsection (4)(b) of the section 40CB inserted by section (Throwing articles into prisons) above.”
“( ) section (Controlling or coercive behaviour in an intimate or family relationship)(11)(b).”
Lord Bates
That this House do agree with the Commons in their Amendment 18.
“( ) In relation to an offence committed before section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force—
(a) a reference to a fine in the following provisions is to be read as a reference to a fine not exceeding the statutory maximum—
(i) section 60(3)(a);
(ii) in the Sexual Offences Act 2003, subsection (3)(a) of the section 15A inserted by section (Sexual communication with a child) above;
(iii) in the Female Genital Mutilation Act 2003, paragraph (b) of the subsection (2) inserted in section 5 by section 69(4)(b) above;
(iv) paragraph 4(5)(b) of the Schedule inserted in that Act by section 70(2) above;
(v) section (Controlling or coercive behaviour in an intimate or family relationship)(11)(b) above;
(vi) in the Prison Act 1952, subsection (4)(b) of the section 40CA inserted by section 71 above;
(vii) in that Act, subsection (4)(b) of the section 40CB inserted by section (Throwing articles into prisons) above.”
(b) the reference to a fine in paragraph 2(2)(a) of the Schedule to the Female Genital Mutilation Act 2003, inserted in that Act by section 68(2) above, is to be read as a reference to a fine not exceeding level 5 on the standard scale.”
Lord Bates
My Lords, as the House is well aware, there is no greater duty for a Government than the protection of its citizens in the face of a significant and very real threat to our safety and security. We are in the middle of a generational struggle against a deadly terrorist ideology. In such a climate, it is more important than ever to ensure that the police and our security and intelligence agencies have the right capabilities they need to tackle the threat from terrorism, both at home and abroad.
Only a short while ago, this House scrutinised a package of new powers in the newly enacted Counter-Terrorism and Security Act 2015. This Act significantly adds to the tools at our disposal to counter the threat posed in particular by British-born violent extremists. It disrupts the ability of people to travel abroad to fight, and to return here. It enhances our ability to monitor and control the actions of those in the UK who pose a threat, and it combats the underlying ideology that feeds, supports and sanctions terrorism. It is right and proper that we brought forward and enacted that legislation at the earliest opportunity, but we must also act at the earliest opportunity to ensure that when individuals who may pose a threat to our security have already travelled abroad to places of conflict, such as Syria and Iraq, to engage in terrorist-related activities, they too are not beyond the reach of the law when they return to the UK.
To this end, Commons Amendments 26, 27 and 29 provide for Clause 72 of the Bill to come into force on Royal Assent. The House will recall that Clause 72 will ensure that we are able to prosecute individuals who have prepared and trained for terrorism overseas by extending the extraterritorial reach of the offences in Sections 5 and 6 of the Terrorism Act 2006. Let me be clear that this measure does not come without safeguards. The Bill already makes clear that prosecutions cannot be brought retrospectively—that is, in respect of activities undertaken before the measure is commenced. We are also working with our law enforcement and security partners in advance of Royal Assent to ensure that this change is communicated to those who will use it.
I hope your Lordships will agree that, given the immediacy of the threat we are facing from terrorism and foreign fighters in particular, there is an overriding necessity to ensure that our law enforcement and security partners are provided with the right tools, as early as possible, to protect the UK public, and that this power should be available immediately. The other amendments in this group are minor or technical in nature. I beg to move.
Lord Bates
That this House do agree with the Commons in their Amendments 19 to 58.
“( ) sections 65 to (Child sexual exploitation);”
“( ) sections (Duty to notify police of female genital mutilation) and (Guidance about female genital mutilation);”.
“( ) sections (Controlling or coercive behaviour in an intimate or family relationship) and (Guidance);”
“( ) Section (Prevention or restriction of use of communication devices by prisoners etc) extends to England and Wales and Scotland (but not Northern Ireland).”
“( ) section (Prevention or restriction of use of communication devices by prisoners etc);”
“( ) section 72 and paragraph 60 of Schedule 4 (and section 74(1) so far as relating to that paragraph);”
“( ) section (Codes of practice about investigatory powers: journalistic sources);”
“( ) Consultation for the purposes of subsection (2), (3), (6) or (7) may be, or include, consultation before the day on which this Act is passed.”
“Street Offences Act 1959 (c. 57)
1A (1) The Schedule to the Street Offences Act 1959 (orders under section 1(2A): breach, amendment etc) is amended as follows.
(2) In paragraphs 2(3), 3(3) and 5(4), for paragraphs (a) and (b) substitute “a magistrates’ court acting in the relevant local justice area”.
(3) In paragraph 9(2), for paragraphs (a) and (b) substitute “any magistrates’ court”.
(4) Omit paragraph 9(4).
(5) In paragraph 10(4), for paragraphs (a) and (b) substitute “to a prison”. (6) Omit paragraph 10(5).
(7) In paragraph 11(1) omit “youth court or other”.”
“Regulation of Investigatory Powers Act 2000 (c. 23)
In section 71 of the Regulation of Investigatory Powers Act 2000 (issue and revision of codes of practice), in subsection (8), for “(3)” substitute “(2A)”.”
“16A In section 6 of the Proceeds of Crime Act 2002 (making of order) at the end of subsection (5) insert—
“Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.””
“31A In section 92 of that Act (making of order), at the end of subsection (6) insert—
“Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the accused to pay the recoverable amount.””
“41A In section 156 of that Act (making of order), at the end of subsection (5) insert—
“Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.””
“( ) In Schedule 2 to that Act (lifestyle offences: England and Wales), in paragraph 8 (prostitution and child sex), sub-paragraph (2) is amended as follows.
( ) In paragraph (b), for “child prostitution or pornography” substitute “sexual exploitation of a child”.
( ) In paragraph (c), for “prostitute or a child involved in pornography” substitute “in relation to sexual exploitation”.
( ) In paragraph (d), for “child prostitution or pornography” substitute “sexual exploitation of a child”.”
“Female Genital Mutilation Act 2003 (c.31)
In section 8 of the Female Genital Mutilation Act 2003 (extent etc), in subsection (4) after “Scotland” insert “and sections 5B and 5C do not extend to Northern Ireland”.
“In section 54 of the Sexual Offences Act 2003 (sections 51A to 53A: interpretation), for subsections (2) and (3) substitute—
“(2) In sections 51A, 52, 53 and 53A “prostitute” means a person (A) who, on at least one occasion and whether or not compelled to do so, offers or provides sexual services to another person in return for payment or a promise of payment to A or a third person; and “prostitution” is to be interpreted accordingly.
(3) In subsection (2) and section 53A, “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.””
“ In section 78 of the Sexual Offences Act 2003 (meaning of “sexual”), for “except section 71” substitute “except sections 15A and 71”.”
“ ( ) In section 136A of that Act (meaning of specified prostitution offence etc) subsection (2) is amended as follows.
( ) After paragraph (a) insert—
“(aa) an offence under section 48 of this Act committed by causing or inciting a child to be sexually exploited within the meaning given by section 51(2)(a);”.
( ) In paragraph (b), for “section 48 of this Act, or Article 38 of the Northern
Ireland order,” substitute “Article 38 of the Northern Ireland order”.”
( ) After paragraph (b) insert—
“(ba) an offence under section 49 of this Act committed by controlling the activities of a child in relation to sexual exploitation within the meaning given by section 51(2)(a);”.
( ) In paragraph (c), for “section 49 of this Act, or Article 39 of the Northern Ireland order,” substitute “Article 39 of the Northern Ireland order”.
( ) After paragraph (c) insert—
“(ca) an offence under section 50 of this Act committed by arranging or facilitating the sexual exploitation, within the meaning given by section 51(2)(a), of a child;”.
( ) In paragraph (d), for “section 50 of this Act, or Article 40 of the Northern Ireland order,” substitute “Article 49 of the Northern Ireland order”.
( ) Subsection (3) of that section is amended as follows. ( ) Before paragraph (a) insert—
“(za) an offence under section 48 of this Act committed by causing or inciting a child to be sexually exploited within the meaning given by section 51(2)(b);”.
( ) In paragraph (a), for “section 48 of this Act, or Article 38 of the Northern Ireland order,” substitute “Article 38 of the Northern Ireland order”.
( ) After paragraph (a) insert—
“(aa) an offence under section 49 of this Act committed by controlling the activities of a child in relation to sexual exploitation within the meaning given by section 51(2)(b);”.
( ) In paragraph (b), for “section 49 of this Act, or Article 39 of the Northern Ireland order,” substitute “Article 39 of the Northern Ireland order”.
( ) After paragraph (b) insert—
“(ba) an offence under section 50 of this Act committed by arranging or facilitating the sexual exploitation, within the meaning given by section 51(2)(b), of a child;”.
( ) In paragraph (c), for “section 50 of this Act, or Article 40 of the Northern Ireland order,” substitute “Article 49 of the Northern Ireland order”.”
“( ) After paragraph 24 insert—
“24A An offence under section 15A of this Act (sexual communication with a child).””
“( ) Schedule 15 to that Act (specified offences for purposes of Chapter 5 of Part 12) is amended as follows.
( ) After paragraph 116 insert—
“116A An offence under section 15A of that Act (sexual communication with a child).””
“( ) In paragraph 136, for “child prostitution or pornography” substitute “sexual exploitation of a child”.
( ) In paragraph 137, for “prostitute or a child involved in pornography” substitute “in relation to sexual exploitation”.
( ) In paragraph 138, for “child prostitution or pornography” substitute “sexual exploitation of a child”.”
“( ) Schedule 15B to that Act (offences listed for the purposes of sections 224A, 226A and 246A) is amended as follows.
( ) In paragraph 35, for “child prostitution or pornography” substitute “sexual exploitation of a child”.
( ) In paragraph 36, for “prostitute or a child involved in pornography” substitute “in relation to sexual exploitation”.
( ) In paragraph 37, for “child prostitution or pornography” substitute “sexual exploitation of a child”.”
“ ( ) Schedule 34A to that Act (child sex offences for purposes of section 327A) is amended as follows.
( ) In paragraph 7(b), for “15” substitute “15A”.
( ) In paragraph 7(e), for “abuse of children through prostitution and pornography” substitute “sexual exploitation of children”.”
( ) After paragraph 13A insert—
“13B An offence under section 66 of the Serious Crime Act 2015 (possession of paedophile manual).”
(a) in paragraph (b), for “child prostitution or pornography” substitute “sexual exploitation of a child”;
(b) in paragraph (c), for “prostitute or a child involved in pornography” substitute “in relation to sexual exploitation”;
(c) in paragraph (d), for “child prostitution or pornography” substitute “sexual exploitation of a child”.
( ) In that Part,”
“( ) After paragraph 15 insert—
“Female genital mutilation protection orders
15A (1) Civil legal services provided in relation to female genital mutilation protection orders under paragraph 1 of Schedule 2 to the Female Genital Mutilation Act 2003.
Exclusions
(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.””
“ ( ) Part 3 of that Schedule (advocacy: exclusion and exceptions) is amended as follows.
( ) In paragraph 6—
(a) omit “and” at the end of paragraph (a); (b) at the end insert “, and
(c) proceedings for the variation or discharge of an order under paragraph 1 of Schedule 2 to the Female Genital Mutilation Act 2003.”
( ) In paragraph 8—
(a) omit “and” at the end of paragraph (c); (b) at the end insert “, and
(e) proceedings for the variation or discharge of an order under paragraph 1 of Schedule 2 to the Female Genital Mutilation Act 2003.””
Anti-social Behaviour, Crime and Policing Act 2014 (c. 12)
“ In section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 (information about guests at hotels believed to be used for child sexual exploitation), in subsection (8)(a), for “prostitution and pornography” substitute “sexual exploitation”.”